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1993 DIGILAW 343 (DEL)

ANIL KUMAR MALIK v. DELHI ADMINISTRATION

1993-05-28

SAT PAL

body1993
Sat Pal, J. ( 1 ) IN the present case FIR was registered against thepetitioner under Sections 376/384/506/34 Indian Penal Code at the instance of the complainant, namely, Smt. Kusum Malik. ( 2 ) BRIEFLY stated, the case of the complainant is that before hermarriage with Shri O. P. Malik in January 1981, she had exchanged somecorrespondence with the petitioner Anil Kumar Malik, who happens to bethe cousin brother of her husband. She has alleged that in the year 1986 byshowing those letters, the petitioner started black-miling her on the threatthat in case she would not submit to his lust, he would show those letters toher husband. The complainant has alleged that under the aforesaid threats,she continued submitting to his lust for many years and during this period heeven brought certain other persons to satisfy their lust with her. In hercomplaint she further alleged that somewhere in August 1992 her husbandgot suspicious and she told each and everything to her husband. She hasfurther alleged that her husband got great shock to hear all this and he became unconscious and had to be taken to St. Stephens Hospital and againafter 8/10 days, he was taken to the said hospital. The complainant hasfurther alleged that on 14/10/1992 she decided to kill the petitionerand thereafter to commit suicide but she could not succeed in this task. Shehas further alleged that thereafter the matter was discussed with the eldersand the elders advised her and her husband not to report the matter to thepolice as it will affect their reputation. Lastly, it is alleged in the complaintthat inspite of this the petitioner and his father gave beating to the husbandof the complainant on 8/01/1993 when he had gone to the house ofthe petitioner to remove his goods and in the meanwhile the police camethere and took the members of both the parties to the police station andallowed them to go at 9. 30 p. m. At the police station it came to light thatthe petitioner and his father had lodged many false reports against the complainant s husband and in the present complaint police was requested that thecomplainant and her husband be saved from the petitioner and his father andaction be taken in accordance with law. ( 3 ) MR. 30 p. m. At the police station it came to light thatthe petitioner and his father had lodged many false reports against the complainant s husband and in the present complaint police was requested that thecomplainant and her husband be saved from the petitioner and his father andaction be taken in accordance with law. ( 3 ) MR. Grover, learned Counsel for the petitioner drew my attentionto the statement of the complainant and submitted that the complainant herself has admitted that the fact regarding her alleged rape by the petitionerwas disclosed by her to her husband in August 1992 but the report was lodged with the police by the complainant on 16/01/1993. He submittedthus there is substantial delay of about five months in lodging the report forwhich there is no satisfactory explanation. He submitted that in fact thecomplainant had lodged the report only after she came to know that certainreports have already been lodged by the petitioner. He drew my attentionto the reports dated 5/11/1992 and 9th, 11/01/1993 whereinit is alleged that the complainant was sent by her husband with an intentionto murder the petitioner. He said that this fact has been even admitted bythe complainant in her complaint that she tried to kill the petitioner but shefailed. Learned Counsel also submitted that the complaint was filed with aview to counter the complaints filed by the petitioner. ( 4 ) THE learned Counsel further contended that in the present case thecomplainant is a married lady having three children and there is no independent evidence to corroborate her allegations. ( 5 ) LEARNED Counsel also submitted that though the complainant hasalleged that the petitioner had brought certain other persons to satisfy theirlust but no other person has been arrested in the case so far. He also drewmy attention to the statement of the servant of the complainant recordedunder Section 161 of the Criminal Procedure Code wherein there is no mention that any other person accompanied the petitioner whenever he visitedthe house of the complainant. ( 6 ) THE learned Counsel further drew my attention to the disclosurestatement of the petitioner and submitted that pursuant so this disclosurestatement, the premises of the petitioner were searched by the police butnothing incriminating was recovered from the petitioner and this fact isevident from the search memo dated 19/01/1993, copy of which is atpage 22 of the paper book. ( 6 ) THE learned Counsel further drew my attention to the disclosurestatement of the petitioner and submitted that pursuant so this disclosurestatement, the premises of the petitioner were searched by the police butnothing incriminating was recovered from the petitioner and this fact isevident from the search memo dated 19/01/1993, copy of which is atpage 22 of the paper book. ( 7 ) THE learned Counsel further submitted that the petitioner hasbeen falsely implicated and has been in jail since 16/01/1993 and,therefore, contended that the petitioner should be released on bail. ( 8 ) IN support of his contentions learned Counsel has placed relianceon Supreme Court judgments in Bharwada Bhoginbhai Hirjihhai v. State ofgujarat, AIR 1983 SC 753 and Sheikh Zakir v. State of Bihar, AIR 1983 SC911. Emperor v. Mahadeo, AIR (29) 1942 Bombay 121, Rameshwar v. Thestate. AIR 1952 SC 54 , and Krishan Lal v. State of Haryana, AIR 1980 SC1252. ( 9 ) MR. BAHRI, learned Counsel, appearing on behalf of the State,submitted that as per the allegations made by the complainant, the petitionerhas even extorted money from the complainant while threatening her toshow some letters to her husband. Learned Counsel admitted that thehusband of the complainant had come to know about the alleged black-mailing by the petitioner from the complainant in August 1992 but learnedcounsel submitted that the complainant has given explanation in her complaint for the delay in lodging the complaint with the police. In this connection he drew my attention to a portion of the statement wherein the complainant has stated that the matter was discussed with some elder relationsand they advised the complainant and her husband not to report the matterto the police as it may affect their reputation and it may also have effect ontheir children. Learned Counsel further submitted that as per the law laiddown by the Supreme Court no corroboration to the statement of theprosecutrix is required in a case of rape. He. therefore, submitted that thepetitioner is not entitled to be released on bail. In support of his contentionshe placed reliance on two Supreme Court judgments in State of Maharashtrav. Chandraprakash Kewalchand Jain, AIR 1990 SC 658 and Bharwada Bhoginbhai Hirjibhai (supra ). ( 10 ) I have given my thoughtful consideration to the submission madeby the learned Counsel for the parties and have also perused the copies ofvarious statements on record. In support of his contentionshe placed reliance on two Supreme Court judgments in State of Maharashtrav. Chandraprakash Kewalchand Jain, AIR 1990 SC 658 and Bharwada Bhoginbhai Hirjibhai (supra ). ( 10 ) I have given my thoughtful consideration to the submission madeby the learned Counsel for the parties and have also perused the copies ofvarious statements on record. I have also perused the written submissionsfiled by the learned Counsel for the complainant. ( 11 ) IN terms of the allegations made in the complaint, the complainant has stated that she did not disclose the facts in regard to the commission of the crime to her husband till August 1992 as she was under the constant threat from the petitioner that he would inform her husband about theletters she had written to him before her marriage but even after the factswere disclosed by the complainant to her husband in August 1992, there issubstantial delay of about five months in lodging the complaint by the complainant with the police. As held by the Supreme Court in the case of Stateof Rajasthan v. Shri Narain, (1992)3 SCC 615 , "indian society being whatit is, the victims of such a crime ordinarily consult relatives and are hesitantto approach the police since it involves question of morality and chastity of amarried woman. " Such delay could possibly be of a few days and not offive months as in the present case. I may be pointed out here that in thecase of Shri Narain (supra) there was a delay of only two days in lodging thecomplaint. Besides, in the present case the complainant did not take recourse to legal action at the earliest opportunity but admittedly tried to killthe petitioner though she failed to do so. Further the complaint shows thatthe complainant lodged the complaint only after her husband had gone to theresidence of the petitioner on 8/01/1993 to remove his goods andthere was some dispute between the father of the petitioner and the husbandof the complainant and the parties were taken to the police station and there,the husband of the complainant came to know that the petitioner and hisfather had lodged many reports against them earlier. Keeping in view theaforesaid facts and circumstances of the case, I am of the view that this is afit case for grant of bail to the petitioner. Keeping in view theaforesaid facts and circumstances of the case, I am of the view that this is afit case for grant of bail to the petitioner. ( 12 ) ACCORDINGLY, I direct that the petitioner be admitted to bail onhis furnishing a bail bond in the sum of Rs. 25. 000. 00 with one surety in thelike amount to the satisfactions of the Trial Court. With this order the petition stands disposed of. The observation given by me in this order will nothave any bearing on the merits of the case.