Naval Kishore Khanna vs State on 16 September, 2020

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Delhi High Court - Orders

Naval Kishore Khanna vs State on 16 September, 2020

Bench: Anup Jairam Bhambhani

                                                  via Video-conferencing
$~2

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     BAIL APPL. 2699/2020

      NAVAL KISHORE KHANNA                  .....Applicant
                   Through: Mr. Rajiv Mohan and Ms. Shalini,
                            Advocates.

                         versus

      STATE                                         ...... Respondent
                         Through:    Ms. Neelam Sharma, APP for the
                                     State.

      CORAM:
      HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
                   ORDER

% 16.09.2020 CRL.M.A. No. 12773/2020 (for exemption) Exemption allowed, subject to just exceptions. The application stands disposed of.

BAIL APPL. No. 2699/2020

The applicant, who is an accused in case FIR No. 591/2020 dated 12.06.2020 registered under sections 376B/377 IPC at PS : Tilak Nagar, seeks regular bail.

2. Mr. Rajiv Mohan, learned counsel appearing for the applicant submits that the complainant is the applicant's former wife, who continued to reside in the applicant's premises despite a mutual consent divorce obtained on 09.03.2019. Counsel submits that in respect of an alleged BAIL APPL. 2699/2020 Page 1 of 3 incident of 11.06.2020, an FIR dated 12.06.2020 has been registered against the applicant under sections 376B/377 IPC.

3. Mr. Mohan contends that the explanation to section 376B IPC defines 'sexual intercourse' as any of the acts defined in section 375 IPC, namely the section that defines 'rape'; which accordingly also includes the unnatural offences contemplated in section 377 IPC. Counsel however points-out that while section 376B IPC is a bailable offence; section 377 IPC is non-bailable.

4. In the circumstances, it is argued, that on first principles of criminal jurisprudence, if the same alleged act falls within the meaning of an offence which is bailable and also within another offence which is non-bailable, the accused must have the benefit of being charged only with the bailable offence. Counsel however submits that section 377 IPC has been added to the FIR mischievously, only to make the offence non-bailable.

5. Mr. Mohan states that the applicant has been in judicial custody since 22.08.2020. Counsel further contends that in fact the complainant was required to vacate the applicant's premises within six months of the settlement, that was basis of the mutual consent divorce; but since she did not do so, the applicant filed a contempt petition before this court and the FIR has been lodged only as a reprisal to such contempt petition.

6. Issue notice.

7. Ms. Neelam Sharma, learned APP appears for the State on advance copy; accepts notice; and seeks time to file status report.

BAIL APPL. 2699/2020 Page 2 of 3

8. Ms. Sharma points-out that in fact section 376B IPC should never have been added in the FIR since parties were already divorced as of 09.03.2019 and therefore the offence of rape upon a wife while living separately under section 376B IPC is not attracted.

9. Let status report be filed before the next date, with advance copy to the opposing counsel.

10. Let the applicant's updated nominal roll be requisitioned from the Jail Superintendent for the next date.

11. List on 7th October 2020.

ANUP JAIRAM BHAMBHANI, J.

SEPTEMBER 16, 2020 uj BAIL APPL. 2699/2020 Page 3 of 3

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Delhi High Court - Orders