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IN THE HIGH COURT OF DELHI
SURESH KUMAR KAIT, J.
Sunil Aggarwal - Petitioner
Versus
State of NCT of Delhi - Respondent
Bail Appln. No. 3906 of 2020 & Crl.M.A. No. 17997 of 2020
Decided On : 25-01-2021
Bail - Criminal Law - IPC, I.T. Act - 506, 509, 67A - The court discussed the relevance of the allegations in the FIR to the matrimonial dispute, ownership of the WhatsApp account, location of the accused at the time of the offense, and the lack of specific allegations against the applicant. The court also considered the duration of judicial custody, lack of meaningful investigation, and the recoveries made. The petitioner was granted bail with specific conditions.
Fact of the Case:
The petitioner sought regular bail under section 439 Cr.P.C. for offenses under sections 506/509 IPC & section 67A of I.T. Act. The petitioner claimed innocence and highlighted flaws in the investigation, while the prosecution alleged the petitioner's involvement in uploading obscene photographs of a judicial officer on WhatsApp.
Finding of the Court:
The court found that the allegations stemmed from a matrimonial dispute, the WhatsApp account belonged to the petitioner's brother, the petitioner was in a different location at the time of the offense, and there were no specific allegations against the petitioner. The court also noted the lack of meaningful investigation and the duration of judicial custody.
Issues: The issues revolved around the ownership of the WhatsApp account, the petitioner's location during the offense, the nature of the allegations, the duration of judicial custody, and the adequacy of the investigation.
Ratio Decidendi: The court considered the lack of specific allegations against the petitioner, the ownership of the WhatsApp account, the petitioner's location at the time of the offense, and the duration of judicial custody as key factors in granting bail.
Final Decision: The petitioner was granted bail with specific conditions, including furnishing a personal bond, providing a contact number to the Investigating Officer, restrictions on international travel, and prohibitions on contacting or influencing witnesses.
JUDGMENT :
1. Present petition has been filed under section 439 Cr.P.C. seeking regular bail in pursuance to FIR No.58/2020 registered at Police Station Crime Branch for the offences punishable under sections 506/509 IPC & section 67A of I.T. Act.
2. The case of applicant/petitioner is that he is an American Citizen and qualified Software Engineer by profession. He has worked in some of the world’s biggest organizations on very senior positions. He has his roots in the society and is not a prior convict. He is a law abiding citizen of the country and is innocent.
3. Learned counsel for the petitioner submitted that the screenshot annexed by the complainant seems to have been taken by herself, thus, are tampered and forged with an intention to falsely implicate the applicant/petitioner. The IO has confirmed in his status report that he has taken a report from WhatsApp officials in which WhatsApp has only verified that the number belongs to the applicant. The applicant has never denied that the mobile number belongs to him. He is using this mobile number for the last 9 years. At the same time, WhatsApp has not verified that the alleged status was uploaded from the applicant mobile on 16.02.2020. So there is no admissible facts about the applicant posting the alleged WhatsApp status. Moreover, the WhatsApp status remains only for 24 hours and gets deleted automatically by the WhatsApp application thereafter.
4. Further submitted that in order to send and receive status updates, the contacts must have on each other’s phone numbers saved on the phone’s address books. However, the applicant was arrested from Dehradun on 16.09.2020 where he is residing continuously for more than one year. The applicant is in Judicial Custody since 18.09.2020 which is more than 78 days now in JC.
5. In addition to above, it is submitted that the applicant was never issued any notice under section 41A Cr.P.C. by the concerned authorities and this has caused grave injustice to the applicant.
6. In the case of Arnesh Kumar vs. State of Bihar, the Hon’ble Supreme Court held that the IO has to issue notice under section 41A before the arrest in the cases where the punishment is less than 7 years. Not even once the applicant has been investigated or asked to join the investigation for this FIR/offence, thereby raising reasonable doubts on the investigation by the investigating agency. Moreover, the case property like two mobile phones and a laptop have already been recovered by the IO at the time of arrest at Dehradun and has been sent to FSL, however, FSL report is awaited. Nothing more is to be recovered from the applicant.
7. Learned APP has opposed the present petition by submitting that the complainant is Judicial Officer in Delhi and the applicant has uploaded her obscene photographs on whatsapp. Due to this act of the applicant, the image of the complainant has been tarnished and she put to great trauma. Therefore, keeping in view of the serious allegations against the petitioner, the petition deserves to be dismissed.
8. It is alleged in the present petition that the complainant Ms.Anu Aggarwal has gravely misused her official powers for arresting the applicant with her influence as she at the time of filing of the complaint was the immediate head of the Crime Branch, therefore, IO and other Crime Branch officers have obliged her being CMM, Dwarka Courts, Delhi.
9. It is mentioned in the present petition that the applicant and his ex-wife Meenu Aggarwal have some family dispute and the complainant Ms.Anu Aggarwal (CMM) is the real younger sister of Meenu Aggarwal. The applicant got married to Meenu Aggarwal in August, 1998. They went to USA after marriage in September, 1998. Since then they were residing in USA only till the year 2011. Two children were born out of the wedlock and they are now aged 18 years and 15 years. However, sometime in the year 2011, the applicant alongwith his wife Meenu Aggarwal and two children came back to India and were residing i
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