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IN THE HIGH COURT OF DELHI AT NEW DELHI
Anup Jairam Bhambhani, J.
Sanjay Malik @ Sant Sevak Das - Petitioner
Versus
The State & Anr. - Respondents
Bail Appln. 3051 of 2022
Decided On : 14-03-2023
BAIL - Criminal Procedure - Code of Criminal Procedure, 1973, Section 439, Indian Penal Code, 1860, Sections 354, 376 - The court discussed the nature of the alleged sexual liaisons, the issue of consent, emotional exploitation, delay in FIR registration, and absence of medical evidence. The court found that the allegations disclosed deception and guile on the part of the petitioner, and expressed concern about potential interference in the course of justice. The bail petition was dismissed with liberty to apply afresh once the deposition of all prosecution witnesses is complete.
Fact of the Case:
The petitioner sought regular bail in a case involving allegations of sexual assault under sections 354/376 of the IPC. The petitioner denied the allegations, claiming that the physical relations were consensual and that the prosecutrix made false allegations.
Finding of the Court:
The court found that the allegations disclosed deception and guile on the part of the petitioner, and expressed concern about potential interference in the course of justice. The bail petition was dismissed with liberty to apply afresh once the deposition of all prosecution witnesses is complete.
Issues: The issues included the nature of the alleged sexual liaisons, the issue of consent, emotional exploitation, delay in FIR registration, absence of medical evidence, and potential interference in the course of justice.
Ratio Decidendi: The court emphasized the nuanced consideration of consent, the impact of emotional exploitation on consent, and the distinction between consenting to a situation and consenting to sexual liaison. The court also considered the delay in FIR registration and the absence of medical evidence.
Final Decision: The bail petition was dismissed with liberty to apply afresh once the deposition of all prosecution witnesses is complete.
JUDGMENT :
Anup Jairam Bhambhani, J.
By way of the present petition filed under section 439 read with section 482 of the Code of Criminal Procedure, 1973 (‘Cr.P.C.’) the petitioner seeks grant of regular bail in case FIR No. 216/2022 dated 06.03.2022 registered under sections 354/376 of the Indian Penal Code, 1860 (‘IPC’) at P.S.: Neb Sarai.
2. Notice on this petition was issued on 13.10.2022.
3. Status reports dated 28.10.2022 and 16.11.2022 have been filed. Nominal roll dated 16.02.2023 has been received from the Jail Superintendent.
4. Chargesheet in the matter has been filed on 04.05.2022; whereupon on 29.07.2022 charges were framed against the petitioner under sections 354/376 IPC.
5. As required, intimation was sent to the complainant/prosecutrix under section 439 (1-A) Cr.P.C. read with Delhi High Court Practice Directions dated 24.09.2019 in form Annexure-A; whereupon the prosecutrix appeared via video-conferencing and also sought assistance of a legal-aid counsel. Vide order dated 16.11.2022 the prosecutrix was provided counsel at State expense. The prosecutrix, who claims to be a Czech national, sought permission to join the hearings via video-conferencing, which permission was duly accorded.
6. Considering the nature of the matter, some of the hearings in the matter were conducted in-camera.
7. The court has heard Mr. Krishan Kumar, learned counsel appearing for the petitioner; as well as Mr. Tarang Srivastava, learned APP appearing for the State; as also Mr. Ashutosh Kaushik, learned counsel appointed for the prosecutrix by the Delhi High Court Legal Services Committee. The court has also heard the prosecutrix herself at considerable length.
8. Mr. Kumar submits that though the petitioner denies having had any physical relations with the prosecutrix, in any case, the prosecutrix is ‘major’ and any physical relations with her were entirely consensual. Counsel submits that though the prosecutrix alleges that the petitioner molested her on 12.10.2019 at a certain hostel in Delhi; and subsequently engaged in physical liaison with her on 31.01.2020 at Prayagraj (Allahabad) and subsequently on 07.02.2020 at a hotel in Gaya (Bihar), the FIR came to be registered only much later on 06.03.2022 at Delhi; and the prosecutrix made no complaint nor any efforts to register any FIR at the various other places where she claims she was sexually assaulted.
9. Mr. Kumar submits, that though in the FIR the prosecutrix alleges that the petitioner took advantage of her, pretending to be a ‘spiritual guru’ who would help her perform the post-demise rituals of her deceased husband who had passed away on 08.08.2019, those allegations are false; and the petitioner did in fact guide her through those post-demise rituals. Attention in this behalf is drawn to the statement of the prosecutrix recorded under section 164 Cr.P.C. on 08.03.2022, to argue that that statement clearly shows how the prosecutrix has embellished the allegations.
10. Mr. Kumar also draws attention to the prosecutrix’s crossexamination conducted on 20.08.2022, to point-out that admittedly, the print-out of WhatsApp messages exchanged between the petitioner and the prosecutrix show that the prosecutrix had saved the petitioner’s mobile number on her phone with the appellation “Tharki Guru”, which belies the pretended innocence of the prosecutrix. Counsel further argues, that the prosecutrix also admits as correct that on 27.02.2022 she demanded from the petitioner Rs.45,000/-;which she later tries to explain by saying that she asked for the money on the suggestion of her fiance, so as to induce the petitioner to come to Delhi.
11. Mr. Kumar points-out, that in fact in her examination-in-chief recorded on 01.08.2022, the prosecutrix states that after the alleged sexual liaison in Gaya, she messaged one Mr. Ansari, who is stated to be the owner of Ansari Guest House in Bodh Gaya which she had visited in October 2019, seeking Mr. Ansari’s help; arguing thereby, that the prosecutrix was ac
The judgment emphasizes the nuanced consideration of consent, the impact of emotional exploitation on consent, and the distinction between consenting to a situation and consenting to sexual liaison.
The importance of addressing allegations and societal context in bail decisions.
Point of Law : Court does not mitigate allegations made by prosecutrix against petitioner in her statement under Section 164 Cr.P.C, and first statement given to police.
The court's refusal of bail reinforces that serious allegations of sexual offences require thorough examination at trial, negating claims of consensual relations based on prior friendships or financi....
The legal position on 'promise to marry' in relation to consent and the 'bail not jail' rule were central to the judgment.
The delay in filing the FIR and the conduct of the complainant can raise doubts about the credibility of the allegations in cases of sexual offenses.
The significance of delay in filing the FIR, lack of supporting evidence, and voluntary actions of the complainant and the accused and his family are crucial factors in considering bail applications ....
The presumption of innocence, the sufficiency of evidence, and the purpose of pre-trial incarceration were central to the court's decision in granting bail.
The court held that a conviction for rape is unsafe solely on the testimony of the prosecutrix when there is significant delay in reporting and lack of corroborative evidence.
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