Sumit Vishwas vs State (Govt. Of Nct Of Delhi) on 27 July, 2022

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Delhi High Court - Orders

Sumit Vishwas vs State (Govt. Of Nct Of Delhi) on 27 July, 2022

1. The instant application under Section 438 of the Code of Criminal Procedure, 1973 (CrPC) has been filed on behalf of the applicant seeking anticipatory bail in FIR bearing No. 354 dated 30.05.2022, registered at Police Station Vikas Puri, for offences punishable under Section 354 of the Indian Penal Code, 1860 (IPC) read with Section 10 of the Protection of Children from Sexual Offences Act, 2012 (POCSO).

2. Notice. Learned APP accepts notice for the State.

3. It isthe case of the prosecution that a few days prior to the filing of the present FIR by the complainant/victim (aged about 10 years), the complainant went to the house of the applicant in order to play with two girls namely Anaya and Shanaya. It has been alleged in the FIR that the applicant, on seeing the complainant alone, approached her, lifted her frock, Signature Not Verified Digitally Signed BAIL APPLN. 2047/2022 Page 1 of 16 By:ZEENAT PRAVEEN Signing Date:05.08.2022 15:13:49 pulled down her underwear and touched her genitals. It is alleged that the applicant also opened his pants and showed his genitals to the complainant. Subsequently the applicant tried to lay the complainant on the bed, which she resisted and ran away thereafter. The applicant had previously also filed an application for anticipatory bail before the learned Additional District Judge, Dwarka Court, which was rejected vide order dated 28.06.2022 on the ground of nature and gravity of offences and considering that the investigation was yet to be concluded and if enlarged on bail, the applicant could attempt to threaten the complainant. Thus, the applicant has preferred the present anticipatory bail application.

4. The learned counsel for the applicant states that the allegations against the accused are false and that no such incident ever took place. It is also stated that the allegations of sexual assault are an after-thought as there is a lapse of 15-20 days between the date of alleged incident and the registration of the complaint.It is stated that the present FIR was registered on some misunderstanding between the complainant and her parents and her parents have no objection if the applicant is released on anticipatory bail.

5. It is pointed out by the State that the accused has not joined investigation since the registration of the FIR. The Investigating Officer (IO) states that she has tried to serve notice under Section 41A CrPC upon the accused, however, he is running away from joining the investigation and even serving the said notice to the applicant has not been possible. The attention of the court is drawn to the Status Report wherein it is stated that NBWs were obtained against the applicant on 04.07.2022, which were returnable on 14.07.2022. However, the same could not be executed as he has been evading arrest. It is now stated that based on the NBWs issued Signature Not Verified Digitally Signed BAIL APPLN. 2047/2022 Page 2 of 16 By:ZEENAT PRAVEEN Signing Date:05.08.2022 15:13:49 earlier, the learned Trial Court has initiated proceedings under Section 82 CrPC against the applicant. It is also stated that the statement of the complainant was recorded under section 164 CrPC wherein she has fully supported the allegations levelled against applicant, thereby corroborating the contents of the FIR that has been filed by her.

6. I have also gone through the Medico-Legal Case Report of the complainant prepared by the concerned doctor, where the complainant has given history of sexual assault.

7. Learned counsel for the applicant relied upon the judgment of Arnesh Kumar v. State of Bihar &Ors. (2014) 8 SCC 273, and stated that applicant is entitled to bail as notice under section 41A CrPC has not yet been served upon the applicant.

8. To fairly adjudicate the present case, I first deem it appropriate to discuss the provisions of Sections 41 and 41A of CrPC. Section 41 reads as under:

"Section 41. When police may arrest without warrant - (1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person--

[(a) who commits, in the presence of a police officer, a cognizable offence;

(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:--

(i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;

(ii) the police officer is satisfied that such arrest is Signature Not Verified Digitally Signed BAIL APPLN. 2047/2022 Page 3 of 16 By:ZEENAT PRAVEEN Signing Date:05.08.2022 15:13:49 necessary--

(a) to prevent such person from committing any further offence; or

(b) for proper investigation of the offence; or

(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or

(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or

(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing:

[Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.] (ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence;]

(c) who has been proclaimed as an offender either under this Code or by order of the State Government; or

(d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or

(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or

(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or

(g) who has been concerned in, or against whom a Signature Not Verified Digitally Signed BAIL APPLN. 2047/2022 Page 4 of 16 By:ZEENAT PRAVEEN Signing Date:05.08.2022 15:13:49 reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or

(h) who, being a released convict, commits a breach of any rule made under sub-section (5) of section 356; or

(i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.

[(2) Subject to the provisions of section 42, no person concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate.]"

9. The section empowers a police officer to arrest accused in a case pertaining to a cognizable offence without a warrant of arrest. Exceptions to Section 41 are covered under Section 41A CrPC. The objective of a notice under Section 41A is to ensure the cooperation of accused persons during investigation. Section 41A CrPC is reproduced below:

"41A. Notice of appearance before police officer - (1) [The police officer shall], in all cases where the arrest of a person is not required under the provisions of sub-section (1) of section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.

(2) Where such a notice is issued to any person, it shall Signature Not Verified Digitally Signed BAIL APPLN. 2047/2022 Page 5 of 16 By:ZEENAT PRAVEEN Signing Date:05.08.2022 15:13:49 be the duty of that person to comply with the terms of the notice.

(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.

[(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice.

10. In the case of Arnesh Kumar (Supra), the Hon'ble Supreme Court, while noting that the police officers should not arrest the accused in a mechanical manner or where the same is not necessary, laid down the guidelines which directed the police officials to issue notice under Section 41A CrPC to the accused where the sentence provided in the offence extends up to seven years or is less than seven years, with our without fine. The relevant portion of the said judgment is reproduced below:

"10. We are of the opinion that if the provisions of Section 41 CrPC which authorises the police officer to arrest an accused without an order from a Magistrate and without a warrant are scrupulously enforced, the wrong committed by the police officers intentionally or unwittingly would be reversed and the number of cases which come to the Court for grant of anticipatory bail will substantially reduce. We would like to emphasise that the practice of mechanically reproducing in the case diary all or most of the reasons contained in Section 41 CrPC for effecting arrest be discouraged and discontinued.

11. Our endeavour in this judgment is to ensure that police officers do not arrest the accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following directions:

11.1. All the State Governments to instruct its police officers not to automatically arrest when a case under Section Signature Not Verified Digitally Signed BAIL APPLN. 2047/2022 Page 6 of 16 By:ZEENAT PRAVEEN Signing Date:05.08.2022 15:13:49 498-A IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41 CrPC;

11.2. All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);

11.3. The police officer shall forward the check list duly filled and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;

11.4. The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;

11.5. The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;

11.6. Notice of appearance in terms of Section 41-A CrPC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;

11.7. Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before the High Court having territorial jurisdiction.

11.8. Authorising detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

12. We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A IPC or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years, whether with or without fine."

Signature Not Verified Digitally Signed BAIL APPLN. 2047/2022 Page 7 of 16 By:ZEENAT PRAVEEN Signing Date:05.08.2022 15:13:49

11. Recently, the Supreme Court,vide its judgment titledSatender Kumar Antil v. CBI, M.A. No. 1849 of 2021 in S.L.P. (Crl.) No. 5191 of 2021, suggested that the Centre develop guidelines or a "Bail Act" for efficient disposal of bail applications. Following guidelines were laid down on the aspect of granting bail and its interplay with Section 41A of CrPC:

"73. In conclusion, we would like to issue certain directions. These directions are meant for the investigating agencies and also for the courts. Accordingly, we deem it appropriate to issue the following directions, which may be subject to State amendments.:

a) The Government of India may consider the introduction of a separate enactment in the nature of a Bail Act so as to streamline the grant of bails.

b) The investigating agencies and their officers are duty-

bound to comply with the mandate of Section 41 and 41A of the Code and the directions issued by this Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273). Any dereliction on their part has to be brought to the notice of the higher authorities by the court followed by appropriate action.

c) The courts will have to satisfy themselves on the compliance of Section 41 and 41A of the Code. Any non- compliance would entitle the accused for grant of bail.

d) All the State Governments and the Union Territories are directed to facilitate standing orders for the procedure to be followed under Section 41 and 41A of the Code while taking note of the order of the High Court of Delhi dated 07.02.2018 in Writ Petition (C) No. 7608 of 2018 and the standing order issued by the Delhi Police i.e. Standing Order No. 109 of 2020, to comply with the mandate of Section 41A of the Code.

e) There need not be any insistence of a bail application while considering the application under Section 88, 170, 204 and 209 of the Code.

f) There needs to be a strict compliance of the mandate laid down in the judgment of this court in Siddharth v. State of U.P., (2021) 1 SCC 676.

g) The State and Central Governments will have to Signature Not Verified Digitally Signed BAIL APPLN. 2047/2022 Page 8 of 16 By:ZEENAT PRAVEEN Signing Date:05.08.2022 15:13:49 comply with the directions issued by this Court from time to time with respect to constitution of special courts. The High Court in consultation with the State Governments will have to undertake an exercise on the need for the special courts. The vacancies in the position of Presiding Officers of the special courts will have to be filled up expeditiously.

h) The High Courts are directed to undertake the exercise of finding out the undertrial prisoners who are not able to comply with the bail conditions. After doing so, appropriate action will have to be taken in light of Section 440 of the Code, facilitating the release.

i) While insisting upon sureties the mandate of Section 440 of the Code has to be kept in mind.

j) An exercise will have to be done in a similar manner to comply with the mandate of Section 436A of the Code both at the district judiciary level and the High Court as earlier directed by this Court in Bhim Singh v. Union of India, (2015) 13 SCC 605, followed by appropriate orders. In Bhim Singh, the Court directed that Jurisdictional Magistrate/Chief Judicial Magistrate/Sessions Judge shall hold one sitting in a week in each jail/prison for two months commencing from 1-10-2014 for the purposes of effective implementation of Section 436-A of the Code of Criminal Procedure.

k) Bail applications ought to be disposed of within a period of two weeks except if the provisions mandate otherwise, with the exception being an intervening application. Applications for anticipatory bail are expected to be disposed of within a period of six weeks with the exception of any intervening application.

l) All State Governments, Union Territories and High Courts are directed to file affidavits/ status reports within a period of four months."

(emphasis supplied)

12. It is thus clear that the police has been entrusted with the duty to comply with the mandate under Section 41A CrPC.However, in cases where police has diligently made attempts to serve such notice upon the accused, Signature Not Verified Digitally Signed BAIL APPLN. 2047/2022 Page 9 of 16 By:ZEENAT PRAVEEN Signing Date:05.08.2022 15:13:49 but the accused is evading service of notice and joining of investigation, in such a situation the accused cannot take advantage of his/her own wrongful conduct and subsequently blame the police or investigating authorities. In such cases, the Courts have to consider the conduct of the accused to determine whether there was a default on part of the police/investigating agencies or on the part of the accused. If it is observed that the accused is evading service of notice under Section 41A CrPC, despite attempts being made by the police/investigating authorities to serve such notice, the accused cannot seek benefit and refugeof the law laid down inArnesh Kumar (Supra) and Satender Kumar Antil (Supra) and the Courts may reject the anticipatory bail of the applicant. This situation is covered under Section 41A(4) of Cr.P.C.

13. Section 41A(4) is an exception against the protection of arrest where if any person fails to comply with the terms of notice or is unwilling to identify himself, the police officer can arrest such a person. This clause encapsulates two exceptions viz. i) where notice has been issued and there is subsequent non-compliance of the same ii) when a person is unwilling to identify himself. The second exception encompasses a situation where the accused is evading from the service of such notice and is refraining from joining the investigation. In this circumstance, the protection from arrest under Section 41A cannot be granted as the conditions and requirements mentioned under the said Section have not been fulfilled.In case of such a violation,the Court will be justified in not granting anticipatory bail as the essential condition for protection from arrest i.e. joining and cooperating with the investigation and ensuring presence during investigation has not been fulfilled.

Signature Not Verified Digitally Signed BAIL APPLN. 2047/2022 Page 10 of 16 By:ZEENAT PRAVEEN Signing Date:05.08.2022 15:13:49

14. In the present case, proceedings against the accused have been initiated under Section 82 CrPC which means that the accused has not been cooperating with the investigation. The reasons for non-compliance of notice under Section 41A(4) Cr.P.C. are evident from application moved byIObefore learned Trial Court while obtaining non-bailable warrants for initiating proceedings under Section 82 Cr.P.C. I am thus of the opinion that this case is not fit for grant of anticipatory bail. I place reliance on the judgment of the Apex Court in the case of Prem Shankar Prasad vs. The State of Bihar &Anr., Criminal Appeal No. 1209 of 2021, wherein the Hon'ble Supreme Court observed as below:

"...7.3 In the case of State of Madhya Pradesh vs. Pradeep Sharma (Supra), it is observed and held by this court that if anyone is declared as an absconder/proclaimed offender in terms of section 82 of Cr.PC, he is not entitled to relief of anticipatory bail. In paragraph 14 to 16, it is observed and held as under:

"14. In order to answer the above question, it is desirable to refer to Section 438 of the Code which reads as under:

"438. Direction for grant of bail to person apprehending arrest.--(1) Where any person has reason to believe that he may be arrested on accusation of having committed a non- bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that court may, after taking into consideration, inter alia, the following factors, namely--

(i) the nature and gravity of the accusation;

(ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;

(iii) the possibility of the applicant to flee from justice; and Signature Not Verified Digitally Signed BAIL APPLN. 2047/2022 Page 11 of 16 By:ZEENAT PRAVEEN Signing Date:05.08.2022 15:13:49

(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail:

Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application."

The above provision makes it clear that the power exercisable under Section 438 of the Code is somewhat extraordinary in character and it is to be exercised only in exceptional cases where it appears that the person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse his liberty.

16. Recently, in Lavesh v. State (NCT of Delhi) [(2021) 8 SCC 730], this Court (of which both of us were parties) considered the scope of granting relief under Section 438 via-à-vis a person who was declared as an absconder or proclaimed offender in terms of Section 82 of the Code. In par 12, this Court held as under : (SCC p. 733)

15. In the case of SiddharamSatlingappaMhetrevs State Of Maharashtra And Ors (2011) 1 SCC 694, the Hon'ble Supreme Court dealt with the issue of anticipatory bail, and the balance that needs to be maintained while granting the same to an accused. It was observed as below:

"3. The society has a vital interest in grant or refusal of bail because every criminal offence is the offence against the State. The order granting or refusing bail must reflect perfect balance between the conflicting interests, namely, sanctity of individual liberty and the Signature Not Verified Digitally Signed BAIL APPLN. 2047/2022 Page 12 of 16 By:ZEENAT PRAVEEN Signing Date:05.08.2022 15:13:49 interest of the society. The law of bails dovetails two conflicting interests namely, on the one hand, the requirements of shielding the society from the hazards of those committing crimes and potentiality of repeating the same crime while on bail and on the other hand absolute adherence of the fundamental principle of criminal jurisprudence regarding presumption of innocence of an accused until he is found guilty and the sanctity of individual liberty."

The Apex Court further laid down in the abovementioned case the factorsthat must be taken into consideration while granting anticipatory bail and held as under:

"...122. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:

i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; iii. The possibility of the applicant to flee from justice; iv. The possibility of the accused's likelihood to repeat similar or the other offences.

v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her. vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the Signature Not Verified Digitally Signed BAIL APPLN. 2047/2022 Page 13 of 16 By:ZEENAT PRAVEEN Signing Date:05.08.2022 15:13:49 exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;

viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;

ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail..."

16. In the present case what shocks this Court is the fact that at the time of hearing arguments on application for grant of anticipatory bail, the father of the victim child was brought to the Court by learned counsel for the applicant/accused and it was submitted by the applicant that father of the victim child is ready to settle the matter. In pursuance of the above an affidavit of the father of the victim child was also filed on record wherein it is stated that the father has no objection if the accused is released on anticipatory bail and further if the FIR is quashed. It must be noted that despite the fact that the victim child is 10 years of age, has duly supported Signature Not Verified Digitally Signed BAIL APPLN. 2047/2022 Page 14 of 16 By:ZEENAT PRAVEEN Signing Date:05.08.2022 15:13:49 the case of the prosecution during the preparation of the MLC and her statement under Section 164 Cr.P.C, the father of victim was brought by the applicant in court along with the affidavit seeking anticipatory bail of the applicant and went to the extent of requesting the quashing of FIR. This Court expresses deep anguish over such conduct of the applicant and of the father of the victim child, as despite the child being thoroughly supportive in her statements about the heinous offence that has been committed against her, the father of the victim seeks release of accused on anticipatory bail and the quashing of FIR. On this aspect, the Court sternly notes that, despite the father vide the affidavit praying for the release of the accused on anticipatory bail and requesting quashing of the FIR, the minor child, who has been consistent in her statements about the alleged incident, has a right to get justice from the Courts of Law. It is noted that the minor child has to be protected by the legal machinery of this country and has her own set of independent rights to secure justice. Merely because the victim is a minor girl of about 10 years of age, the parents of the victim cannot draw a curtain on the alleged wrong committed against her, on the pretext of a misunderstanding and by furnishing a no objection affidavit. The conduct of the father is rather deplorable as he should be the voice of the minor victim.

17. This Court is of the opinion that such conduct of the accused applicant where the father of the victim child has been brought to the Court by learned counsel for the accused/applicant himself and wants the affidavit filed by the father of the complainant to be relied upon to grant anticipatory bail application in a heinous offence committed against a minor girl is certainly evident of unlawful influence being exercised by the accused/applicant over the family of the victim even prior to grant of anticipatory bail and Signature Not Verified Digitally Signed BAIL APPLN. 2047/2022 Page 15 of 16 By:ZEENAT PRAVEEN Signing Date:05.08.2022 15:13:49 commencement of trial. This is a strong ground for rejecting the anticipatory bail application of the accused, as per law laid down in SiddharamSatlingappaMhetre(Supra)by the Apex Court.

18. Keeping in view all the facts, circumstances, the gravity of the offence concerned and the conduct of the applicant mentioned hereinabove from which it can be noted that it was due to the conduct of the applicant that Section 41A Cr.PC notice was deliberately not received by the applicant despite several attempts by the police officials; the subsequent initiation of proceedings under Section 82 Cr.P.C and the conduct of the applicant bringing the father of victim to the court along with the affidavit which is indicative of exerting influence on the family of the victim, this Court is not inclined to grant anticipatory bail to the applicant.

19. Application stands disposed of accordingly.

SWARANA KANTA SHARMA, J JULY 27, 2022/kss Signature Not Verified Digitally Signed BAIL APPLN. 2047/2022 Page 16 of 16 By:ZEENAT PRAVEEN Signing Date:05.08.2022 15:13:49

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Delhi High Court - Orders