Kunal vs State (Nct Of Delhi) & Ors on 16 October, 2023

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Delhi High Court - Orders

Kunal vs State (Nct Of Delhi) & Ors on 16 October, 2023

Bench: Tushar Rao Gedela

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 3317/2023
KUNAL ..... Petitioner
Through: Mr. Satish Aggarwala, Mr. Vinay,
Ms. Rinki and Mr. Sagar Tanwar,
Advocates
versus

STATE (NCT OF DELHI) & ORS ..... Respondents
Through: Mr. Mukesh Kumar, APP for State
Mr. Pramod K. Sharma and Mr.
Prashant Bajaj, Advocates for
complainant
CORAM:
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA
ORDER

% 16.10.2023 [The proceeding has been conducted through Hybrid mode]

1. This is an application under Section 438 of the Cr.P.C., 1973 seeking bail in the event of arrest FIR No.275/2022 dated 26.09.2022 under Section 363 IPC which was subsequently modified to Sections 363/376 of IPC, 1860 read with Sections 5/6 of POCSO Act, 2012 registered at Police Station Vigyan Nagar, Kota, Rajasthan.

2. Mr. Aggarwala, learned counsel appearing for the applicant by referring to the contents of the FIR as also the reply to the anticipatory bail application filed by the State of Rajasthan, before the learned Trial Court submits that even if the entire FIR along with the said reply is taken into consideration, no offence had taken place in Kota, Rajasthan. In fact, according to Mr. Aggarwala, the victim/prosecutrix BAIL APPLN. 3317/2023 1 This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/10/2023 at 21:30:07 had alleged that the applicant had lured the victim and taken her to Mumbai, New Delhi, Ujjain, Gurugram and Rohtak and had established forcible physical/ sexual relations during that period. Learned counsel submits that, without admitting any of the aforesaid allegations even if the allegations are taken on their face value, it is apparent that the victim herself had not referred to any incident happening in Kota. On that basis, learned counsel submits that the substratum of the entire allegation is false and none of the allegations can be stated to have occurred at Kota.

3. According to learned counsel the contents of the FIR are also false and frivolous allegations have been fosited upon the applicant.

4. So far as the maintainability of the present application under Section 438 Cr.P.C., 1973 at Delhi is concerned, he relies upon the judgment of learned Division Bench of this Court in Criminal Writ No.265 of 1990 decided on 11.09.1990 titled as Capt. Satish Kumar Sharma Vs. Delhi Administration and Ors., ILR (1990) 2 Del 203 to submit that the learned Division Bench had categorically held that in case of persons ordinarily residing within the territorial jurisdiction of the jurisdictional High Court, an application under Order 438 Cr.P.C., 1973 can be entertained and necessary orders thereon can be passed. On the strength of the aforesaid judgment, learned counsel submits that keeping in view the weak nature of the allegations, the applicant may be protected from the arrest.

5. Per Contra, Mr. Mukesh Kumar, learned APP for the State submits that submissions of Mr. Aggarwala overlooked the issue of the offence under Section 363 Cr.P.C., 1973.

BAIL APPLN. 3317/2023 2

This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/10/2023 at 21:30:07

6. According to learned APP, the victim was lured from Kota where she is the ordinary resident and is also pursuing her academics and as such, the registration of the FIR at such place is correct. Even otherwise, learned APP submits that according to the further investigations carried out by the Rajasthan Police, the CDR and the location details of the applicant were found to be at a place called Ringus District Sikar in Rajasthan on and about 24.09.2022.

7. On that basis, learned APP submits that the submissions of Mr. Aggarwala are unfounded according to the technical surveillance.

8. Mr. Pramod K. Sharma, learned counsel appearing for the complainant hands over the Bench judgment of Supreme Court in case of State of Assam and Another Vs. R. K. Krishna Kumar and Others Criminal Appeal No. 1004/1997 rendered on 24.10.1997, (1998) 1 SCC 397, while relying upon para 5 of the said judgment, submits that the Hon'ble Supreme Court had deprecated the practice of the High Courts granting anticipatory bail in respect of offences registered with police stations beyond the territorial jurisdiction of the State to which the said High Court exercised its jurisdiction.

9. It would be apposite to extract the para 5 of State of Assam and Another (Supra) which is as under:-

"We do not think it necessary to decide whether Bombay High Court has jurisdiction to entertain the applications filed by the respondents. All the same, the question of granting anticipatory bail to any person who is allegedly connected with the offences in question must for all practical purposes be considered by the High Court of Guwahati within whose territorial jurisdiction such activities should have been perpetrated. In view of the conceded position that appellants were not heard by the High BAIL APPLN. 3317/2023 3 This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/10/2023 at 21:30:07 Court we set aside the impugned orders on that ground alone. The applicants are to be disposed of after hearing the appellants also. For that purpose we order that the applications for anticipatory bail filed by the respondents would stand transferred to the High Court of Guwahati where those applications would be heard by a Division Bench of that High Court and appropriate orders be passed thereon. We request of Chief Justice of High Court of Guwahati to allot these cases to a Division bench to hear the applications, preferably on 4.11.1997."

10. That apart, learned counsel also relies upon the judgment of Single Bench of High Court of Assam at Guwahati titled State of Manipur Vs. Vikas Yadav Criminal Revision No. 06/1999 rendered on 02.03.2000 (2001) 1 GauLR 76 to submit the same.

11. That apart, learned counsel also relies upon the judgment of a Full Bench of the High Court of Judicature at Patna titled as Syed Zafrul Hassan and Another Vs. State reported as AIR 1986 Pat 194 (FB) to submit that even the Full Bench while examining in detail, the entire conspectus of the legal and factual issue, concluded as under:-

8. Adverting now to the language of S. 438 (and in particular in the light of the above), it deserves highlighting that both in sub-

section (1) and sub-section (2) thereof, the deliberate designed phraseology employed is "the High Court" or "the Court of Session". The section does not say "any High Court" or "any Court of Session". To accept the contention of the petitioners would, therefore, involve the substitution of the word 'the' for 'any' at all places where the phraseology of "the High Court"

or "the Court of Session" has been employed. Not only would this be impermissible on the settled canons of construction, but, would be doing plain violence to the specific language of this section itself. To my mind, "the High Court" means the Court BAIL APPLN. 3317/2023 4 This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/10/2023 at 21:30:08 having jurisdiction over the area where the accusation of having committed a non-bailable offence is made. "The Court of Session" means that limited geographical area within whose limits such a non-bailable offence may have been committed and the accusation therefor arises. These limitations are inherent in the opening part of S. 438 itself. Indeed, this section does not talk of the High Court or the Court of Session in vacuum or in space but only in the context of and with regard to the commission of a non-bailable offence in the particularised geographical area. It is significant that S. 438 deals with somewhat serious crimes and does not extend to any or every offence but to the commission of a non-bailable offence. The locale of such a crime is thus inextricably linked to the Court of Session or the High Court which exercises jurisdiction with regard thereto. Therefore, "the High Court"

or "the Court of Session" in S. 438 means such a Court within whose territorial jurisdiction the accusation of having committed a non-bailable offence arises or is made. The apprehension of arrest by such accused is with regard to that particular offence having a particular locale and not generically. The clear mandate of the language of S. 438 and the inherent limitations of territorial jurisdiction cannot be overridden by any high-flown and doctrinaire considerations.

23. To finally conclude on this aspect the answer to the question posed at the outset is rendered in the negative and it is held that section 438 of the Code does not permit the grant of anticipatory bail by any High Court or any Court of Session within the country where the accused may choose to apprehend arrest. Such a power vests only in the Court of Session or the High Court having jurisdiction over the locale of the commission of the offence of which the person is accused.

12. This Court has heard the arguments of Mr. Aggarwala, learned counsel appearing for the applicant as also Mr. Kumar, learned APP and Mr. Sharma, learned counsel appearing for the complainant on the BAIL APPLN. 3317/2023 5 This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/10/2023 at 21:30:08 issue of maintainability of the anticipatory bail application filed under Section 438 Cr.P.C., 1973 for the registered outside the territorial jurisdiction of a High Court.

13. On an overall conspectus of the judgments of the Supreme Court as also the Full Bench and the Single Bench of the High Court of Assam at Guwahati, it appears that there is no categorical law laid down that the High Courts, not having the territorial jurisdiction over the police stations where the FIRs are registered, cannot entertain a particular anticipatory bail application, though for good reason such practice has been deprecated by the Supreme Court.

14. The judgment of learned Division Bench of this Court in Capt. Satish Kumar Sharma (Supra) has laid down as under:-

"22. A bare perusal of the Section reveals that no restriction for grant of anticipatory bail have been imposed in S. 438(1) for exercise of jurisdiction by that High Court or Court of Sessions within whose territorial jurisdiction a person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence. On the order hand, such High Court of Session has been conferred jurisdiction to exercise such power. It is no doubt true that the High Court or the Court of Session within whose territorial jurisdiction the offence has been committed and within whose jurisdiction the offence ordinarily be enquired into and tried by a Court shall also have the jurisdiction to grant anticipatory bail. But this does not take away the jurisdiction of the High Court or Court of Session to grant anticipatory bail where a person has reason to believe that he would be arrested in connection with non- bailable offence. S. 438(1) is wide enough to confer jurisdiction not only to the High Court or the Court of Session within whose territorial jurisdiction the offence has been committed and is to be enquired into and tried but also the High Court or the Court of Session where a person has reason to believe that he may be BAIL APPLN. 3317/2023 6 This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/10/2023 at 21:30:08 arrested in connection with the commission of non-bailable offence. By taking away the jurisdiction from the High Court or the Court of Session for the grant of anticipatory- bail within its territorial jurisdiction respect of a person who may be arrested in connection with non-bailable offence would be reading certain words in the section which are not to be found therein. At the cost of repetition no restriction whatsoever has been placed for exercise of power by the High Court or the court of Session for the grant of anticipatory bail within whose territorial jurisdiction if a person has reason to believe that he may be arrested in connection with non-bailable offence. The purpose for which this beneficial provision of anticipatory bail was introduced in the Code of Criminal Procedure, 1973 has been referred to by the Supreme Court in, para 8 of Gurbaksh Singh Sibbia v. State of Punjab, MANU/SC/0215/1980 :

1980CriLJ1125 of that judgment is reproduced below:-

"No one can accuse the police of possessing a healing touch nor indeed does anyone have misgivings in regard to constraints consequent upon confinement in police custody. But, society has come to accept and acquiesce in all that follows upon a police arrest with a certain amount of sang-froid, in so far as the ordinary rule of criminal investigation is concerned. It is the normal day- today business of the police to investigate into charges brought before them and, broadly and generally, they have nothing to gain, not favors at any rate, by subjecting ordinary criminals to needless harassment. But the crimes, the criminals and even the complainants can occasionally possess extraordinary features. When the even flow of life becomes turbid, the police can be called upon to inquire into charges arising, out of political antagonism. The powerful processes of criminal law can then he perverted for achieving extraneous ends. Attendant upon such investigations, when the police are not free agents within their sphere of duty, is a great amount of inconvenience, harassment and humiliation. That can even take the form of the parading of a respectable person in hand-cuffs, apparently on way to a BAIL APPLN. 3317/2023 7 This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/10/2023 at 21:30:09 Court of justice."

Further, in para 26 of that judgment the Supreme Court has further held that since denial of bail amounts to deprivation of personal liberty, the Court should lean against the imposition of unnecessary restrictions on the scope of S. 438, especially when no such restriction have been imposed by the legislature in the terms of that section. S. 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An over-generous infusion of constrains and conditions which are not to be found in S. 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficent provisions contained in S. 438 must be saved, not jettisoned. These observations have been made in the context that earlier the view taken was that the power of granting anticipatory bail was somewhat extraordinary in character and in exceptional cases it should be granted. Having regard to the object and purpose for which this beneficent provision was enacted by way of amendment in 1973 in the Code of Criminal Procedure and more particularly no restriction whatsoever has been imposed by the legislature in S. 438 which takes away the jurisdiction of the High Court or Court of Session within whose jurisdiction a person has reason to believe that the may be arrested in connection with non- bailable offence and in the light of the observations of the, Supreme Court in this context, we have no hesitation to hold that S. 438(1) confers concurrent jurisdiction in the High Court of Session to enlarge a person on anticipatory bail within whose jurisdiction a person has reason to believe that he may be arrested on an accusation of having committed non-bailable offence."

15. According to the learned Division Bench of this Court, a person ordinarily resident within the territorial jurisdiction of this High Court BAIL APPLN. 3317/2023 8 This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/10/2023 at 21:30:09 can invoke the provisions under Section 438 Cr.P.C., 1973 which can be entertained by the said Court. It is clear that the said judgment was rendered prior in time to the judgment of the Supreme Court in the case of State of Assam and Another (Supra) though the same was rendered subsequent in time to the Full Bench judgment of the Patna High Court.

16. A Coordinate Bench of this Court in Harmeet Singh Vs. State of NCT of Delhi & Ors. in Bail Application 417/2021 rendered on 25.11.2021 had entertained the bail application of a similar nature in respect of a FIR registered with PS Kapurthala in the State of Punjab for the offences punishable under Section 420/376/34 IPC,1860.

17. Learned Coordinate Bench of this Court in Harmeet Singh (Supra) has considered the judgment captioned as Capt. Satish Kumar Sharma (Supra) and others judgments of this Court and observed that there are no restrictions for grant of anticipatory bail where a person has a reason to believe that he may be arrested on an accusation of having committed non-bailable offence, residing within the territorial jurisdiction of such High Court to seek anticipatory bail. On considering the various judgments including that of the Coordinate Bench of this Court, it appears that the attention of the learned Coordinate Bench of this Court was not drawn to the judgment of Supreme Court in State of Assam and Another (Supra).

18. Having regard to the above and concluding that there is no specific bar or embargo by the Supreme Court, to entertain applications under Section 438 Cr.P.C., 1973, this Court, on facts, considers that the present application can be entertained. This is BAIL APPLN. 3317/2023 9 This is a digitally signed order.

(i) that the allegations of offences against the applicant are alleged to have been committed also in Delhi which would fall within the territorial jurisdiction of this Court or the Sessions Court;

(ii) it is not doubted, rather admitted, that the applicant is an ordinary resident of Delhi.

19. These two issues propels this court to take into consideration the issue of bail as sought for.

20. However, keeping in view the order of the Supreme Court, deprecating such practice, this Court on facts deems it appropriate to make it clear that this Court is, however, inclined to grant relief but modified to the extent of being anticipatory bail in the nature of Transit Anticipatory Bail and it is therefore directed that the applicant approaches the court of competent jurisdiction in Rajasthan for appropriate order.

21. In the meanwhile, the applicant is granted protection from arrest for a period of four weeks from today in order to enable the applicant to approach the court of competent jurisdiction for appropriate orders.

22. In view of the submission of Mr.Kumar, learned APP, on the aspect of the present order being in nature of protection in the event of arrest, the requirement of furnishing of personal surety bonds can be exempted with, this Court deems it fit to dispense the applicant from furnishing personal bond for securing the transit relief.

23. However, as a matter of precaution, the concerned IO is at BAIL APPLN. 3317/2023 10 This is a digitally signed order.

24. The applicant shall not tamper with the evidence and influences the witnesses in the meanwhile.

25. Mr. Aggarwala, learned counsel submits that the applicant will join the investigation as and when so directed by the IO, in writing.

26. With the aforesaid observations, the present bail application stands disposed of.

27. Dasti.

TUSHAR RAO GEDELA, J OCTOBER 16, 2023/ms BAIL APPLN. 3317/2023 11 This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/10/2023 at 21:30:10

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