Anticipatory bail under Section 438 must balance allegations' seriousness with facts of the case and the presumption of innocence, considering the potential for flight and evidentiary tampering.

Headnote:(A) Code of Criminal Procedure, 1973 - Section 438 - Anticipatory bail - Application filed for anticipatory bail in FIR No. 201/2022 for offences under Sections 376D/506/34 IPC - Delay of three years in lodging FIR explained by family sensitivities post father's death - The absence of mention of video recording in FIR questioned - Court emphasized that seriousness of allegations must be balanced with the facts and circumstances of the case and presumption of innocence. (Paras 6-8, 10-11)

(B) Principles of anticipatory bail - Scope explained, reiterating that it must be judiciously exercised considering factors such as the nature of accusation, potential for flight risk, and tampering of evidence. (Paras 109-114)

Facts of the case:
The petitioner, a brother, sought anticipatory bail after an FIR by his sister alleging sexual assault three years prior due to familial pressures.

Findings of Court:
The court found prima facie evidence of delay and absence of key information in the FIR, deciding on the petitioner’s cooperation with the investigation.

Issues: Main issues involved the delay in lodging the FIR and the relationship between the complainant and accused.

Ratio Decidendi: The court ruled that due consideration must be given to potential flight risks and evidentiary concerns, governing the grant of anticipatory bail under Section 438.

Result: Petition for anticipatory bail granted with conditions.

Table of Content
1. anticipatory bail application and delay in filing the fir (Para 3 , 4 , 5)
2. seriousness of allegations and considerations for bail (Para 6 , 7 , 8)
3. factors for considering anticipatory bail (Para 10 , 11)
4. conditions for granting bail and final order (Para 12 , 13 , 14)

JUDGMENT

Swarana Kanta Sharma, J. (Oral)

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 t