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2013 DIGILAW 36 (DEL)

Dilroze Ahmad v. State

2013-01-04

KAILASH GAMBHIR

body2013
JUDGMENT : Crl. M.A. 82/2013 Allowed subject to all just exceptions. BAIL APP. NO. 5/2013 1. The petitioner seeks grant of anticipatory bail through this bail application filed under Section 438 of Cr.P.C. 2. Addressing arguments on this application, counsel for the petitioner submits that the petitioner has been falsely implicated in the present case with the allegations of rape and theft although the petitioner has never indulged into any kind of sexual relationship with the complainant. Counsel also submits that even as per the complaint lodged by the complainant the main allegation is that she was sexually exploited by the petitioner on the false promise of marrying her. Counsel also submits that in fact the petitioner got in contact with the complainant through social networking site sometime in the month of March, 2010 and the petitioner was never told by the complainant that she was a widow having a child of 14 years. Counsel further submits that it is only in the month of August, 2011 for the first time, that the petitioner came to know that the complainant was a widow with a minor child. The contention of the counsel is that had the petitioner been aware of the said fact, he would not have developed any kind of relationship with the complainant. Counsel also submits that once the petitioner came to know about the said fact, the petitioner started avoiding the complainant which led to the complainant starting threatening and blackmailing the petitioner. Counsel submits that the petitioner was abducted by the complainant from Jaipur through her own cousin brother Raju and he was kept under illegal confinement at the house of the complainant and after sometime with great difficulty he could manage to save himself from the clutches of the complainant. Counsel also places reliance on e-mail dated 15.9.2012 sent by the complainant to the petitioner to support his argument that the complainant has threatened and blackmailed the petitioner after filing the complaint cases against him. Counsel also submits that at best the present case can be taken as a case of live-in relation of the petitioner with the complainant and no inference can be drawn that the petitioner had been sexually exploiting the complainant or had raped her against her wishes. Counsel also submits that at best the present case can be taken as a case of live-in relation of the petitioner with the complainant and no inference can be drawn that the petitioner had been sexually exploiting the complainant or had raped her against her wishes. Counsel also submits that the complainant has mentioned the period of rape in the FIR as 'May 2010' while in the complaint filed before the Magistrate she has mentioned the period of first rape in 'August 2010'. The contention of the counsel is that it is impossible that the complainant does not even know the date when she was allegedly raped by the petitioner. Counsel also argues that even the allegation with regard to theft is ex facie false as in the FIR she had leveled the allegation that the petitioner had committed the theft of Rs. 3.5 lacs while as per the case set up by her in the complaint she herself had given Rs.3.5 lacs to the petitioner. Counsel submits that there also exists contradictions in the statement with regard to the articles which were alleged to have been stolen by the petitioner from her custody. 3. Based on the above submissions, counsel submits that this is a fit case of grant of anticipatory bail. Counsel has also placed reliance on Gurbaksh Singh Sibbia & Ors. Vs. State of Punjab. 4. This bail application has been strongly opposed by Mr. Navin Sharma, APP for the State. Counsel submits that looking into the gravity and severity of the offences under which the petitioner has been booked, he is not entitled to the grant of anticipatory bail. Counsel also submits that it is not the allegation of rape alone but the petitioner has been threatening to kill the complainant as well as her son and besides that there is a charge of theft of Rs. 3.5 lacs and certain other articles also by the petitioner from the house of the complainant. 5. I have heard learned counsel for the parties at considerable length and given my anxious consideration to the arguments advanced by them. 6. In the present case, the petitioner is not merely facing the charge of rape under Section 376 IPC but he has also been booked under Sections 506 and 380 IPC. 5. I have heard learned counsel for the parties at considerable length and given my anxious consideration to the arguments advanced by them. 6. In the present case, the petitioner is not merely facing the charge of rape under Section 376 IPC but he has also been booked under Sections 506 and 380 IPC. As per the allegations leveled by the complainant, the petitioner in May, 2010 had forced the complainant to have sexual relationship with him after finding the complainant alone in the house in the absence of her son, although at the same time he had also promised to marry the complainant, therefore, it is quite evident from the allegations leveled by the complainant that the first act of sexual intercourse was not with the consent of the complainant. Undoubtedly, thereafter the sexual relationship between the parties continued on the alleged promise made by the petitioner to the complainant to marry her but at the same time complainant has leveled allegations of receiving threats from the petitioner that on failure of having sex with him he would kill her along with her son. There are also allegations that the petitioner had stolen a sum of Rs. 3.5 lacs along with one bracelet, one small and one heavy chain from her almirah. 7. The power of the court to grant anticipatory bail, being a discretionary power, has to be exercised by the court only in exceptional cases depending upon the facts and circumstances of the case in hand. One of the factors that the court has to keep in mind while exercising such discretionary power is whether the petitioner has made a correct disclosure of all material facts before the court. The petitioner in the present case has not placed on record the correct facts so much so that he has gone to the extent of denying having any sexual relationship with the complainant. The falseness on the part of the petitioner can be well exposed from his own complaint dated 20.12.2011, wherein he himself has alleged that he had intimate relationship with the complainant. This court is also not persuaded to believe that the petitioner was not aware, for a period of more than 10 months of his introduction with the complainant, that the complainant was a widow having a son aged 14 years from her previous marriage. This court is also not persuaded to believe that the petitioner was not aware, for a period of more than 10 months of his introduction with the complainant, that the complainant was a widow having a son aged 14 years from her previous marriage. Another argument of the counsel for the petitioner contending that the petitioner was abducted by the complainant with one Raju and he remained under their illegal confinement is also unfathomable. 8. Taking into consideration the facts and circumstances of the present case in totality and considering the nature of offences under which the petitioner has been booked, this Court is not inclined to grant anticipatory bail to the petitioner. 9. The present bail application is accordingly dismissed.