Point of Law – It is clear that provisions of Section 438 CrPC have their genesis in Article 21 of Constitution of India, which deals with liberty of an individual.

JUDGMENT :

SWARANA KANTA SHARMA, J.

CRL.M.A. 10632/2022 (exemption)

1. Allowed, subject to all just exceptions.

2. The application stands disposed of.

BAIL APPLN. 1647/2022

3. The instant application under Section 438 of the Code of Criminal Procedure, 1973 has been filed on behalf of the petitioner seeking anticipatory bail in FIR bearing No. 201/2022, registered at Police Station Jamia Nagar, for offences punishable under Sections 376D/506/34 of the Indian Penal Code, 1860.

4. It is stated by the complainant, who is the real sister of the petitioner, that she has lodged a complaint with Police Station, Jamia Nagar and thereupon an FIR No. 201/2022 under Section 376D/506/34 IPC was registered on 25.4.2022. The incident in question has allegedly taken place on 10.3.2019. When a query was put to the learned counsel for the complainant, who is present in Court and who is assisting the learned APP for the State as well as the Investigating Officer (IO), regarding reason for the delay in lodging of the FIR, it was stated that since it was a sensitive relationship; at the instance of their father who has unfortunately passed away in October, 2021, the complainant did not lodge any complaint. The prestige of the family was paramount for her. It is now stated that after passing away of her father and after consultation with her husband the present FIR was lodged in April, 2022 i.e. after about three years of the alleged incident. Except this reason, no other reason has been put forth by the State or the learned counsel for the complainant. In any case, this is a matter of trial and may be explained by her when her testimony will be recorded and will be tested on the touchstone of cross-examination.

5. My attention has also been drawn to a statement recorded under Section 164 Cr.P.C. which was recorded after three years of the alleged incident. It is mentioned therein by the complainant that the video of the incident in question had been made and she had been threatened that in case she will disclose it, the video will be made public. It is now stated that anticipatory bail should be rejected since the video is to be recovered. There is no other reason brought to the knowledge of the court for custodial interrogation except for the purpose of recovery of the alleged video, which does not find mention in the FIR.

6. Having heard learned counsel for the petitioner, learned APP for the State and the learned counsel assisting the ld. APP on behalf of the complainant, I am of the considered view that while deciding this application I have to remain conscious and keep in mind that the present case involves sexual assault of the real sister by two brothers and also involvement of the wife of the present applicant/petitioner who had allegedly stood guard outside the room where the alleged incident had taken place. It is stated that earlier there were some disputes in the family regarding their late father bequeathing his property. However, learned counsel for the complainant insists that since she had received her share of the property that cannot be a reason for lodging of the present FIR. I am of the view that prima facie there is delay of three years in lodging of the present FIR and in the statement under Section 164 it is mentioned that since her father had requested her not to disclose the same, she had refrained from lodging the FIR.

7. Further, I am of the view that in the FIR the complainant has not made any mention of video recording of the sexual assault.

Learned counsel for the complainant states that since she was under shock, she had forgotten and therefore she had not disclosed it to the Police. I am of prima facie view that it is the case of the complainant herself that after giving careful thought for three years, she had lodged the FIR. Therefore while the FIR was neither lodged in a hurry nor under threat, the video recording still did not find mention in the FIR.

8. It has been vehemently argued that the nature of the allegations is s