Delhi High Court
Mohd Moiz vs State (Gnct Of Delhi) on 4 November, 2016
Author: Vipin Sanghi
Bench: Vipin Sanghi
$~18.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 04.11.2016
+ BAIL APPLN. 2207/2016
MOHD MOIZ
..... Petitioner
Through: Mr. S.C. Singhal, Advocate a/w
petitioner in person
versus
STATE (GNCT OF DELHI)
..... Respondent
Through: Mr. Ashish Dutta, APP with ASI
Usha Rawat, PS Hauz Khas
Mr. Sudarshan Rajan and Mr. Arjun
Gadhoke, Adv for R-2/complainant
a/w the complainant
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
VIPIN SANGHI, J. (OPEN COURT)
1. The petitioner has preferred the present bail application to seek
regular bail under Section 439 Cr.P.C. in case FIR No. 623/2016 dated
17.08.2016 registered under Sections 376/506/328 IPC at police station
Hauz Khas, New Delhi.
2. The petitioner is in custody since 19.08.2016. The charge-sheet stands
filed. The aforesaid case has been registered on the statement of the
prosecutrix in which she has alleged that the petitioner accused was working
BAIL APPLN. 2207/2016 Page 1 of 7
in the same company where she is working. According to the prosecutrix,
the petitioner proposed to her for marriage on 05.06.2016. She went to
Safdarjung Development Area (SDA), New Delhi, where the petitioner put
some substance in a drink and also forced her to take alcohol. She claims
that she got drowsy and unconscious, where after, he forced himself upon
her. Subsequently, the petitioner apologized to the prosecutrix and promised
to marry her. Due to this false promise, she got influenced and made
physical relationship with the petitioner accused. However, subsequently,
the petitioner turned around and stated that he had no intention to marry the
prosecutrix. She further alleged that she has threat to her life and safety
from the accused.
3. The submission of learned counsel for the petitioner is that the
prosecutrix first made a complaint on 12.08.2016 on the basis of which FIR
No. 618/2016 was registered under Section 509/506 IPC. In this complaint,
the prosecutrix did not make any accusation of rape against the petitioner.
The allegation was that the petitioner had abused the prosecutrix in the most
filthy manner and threatened to murder her. She stated that she felt
threatened and fear for her safety. She sought arrest of the petitioner and
action against him under the law. Subsequently, she improved her story and
registered the second complaint as FIR No. 623/2016 on 17.08.2016 and in
the said complaint, she, for the first time, alleged that the petitioner had
induced her into physical/sexual relationship by spiking her drink and
forcing her to drink alcohol on the false promise of marriage. She stated that
the petitioner had been making romantic overtures towards her and proposed
marriage. She also alleged that on 05.06.2016 at Safdarjung Development
BAIL APPLN. 2207/2016 Page 2 of 7
Area (SDA), New Delhi, he put substance in her drink and forced her to take
alcohol. When she became drowsy and unconscious, he forced himself upon
the prosecutrix and later on admitted to his crime and apologized and stated
that he would marry the prosecutrix. She stated that due to the said false
promise, he influenced into a physical relationship but, subsequently, he
turned around and stated that he had no intention of marrying her. He
became abusive and threatened the complainant/prosecutrix. In this
complaint, she also stated that the petitioner told her not to mention
regarding the physical relationship established between the parties in her
earlier complaint. She also alleged that on the previous day, i.e. 06.08.2016,
the accused refused to honour his commitment at the police station.
4. Mr. Singhal submits that the story that the prosecutrix wrote the first
complaint under the influence of the petitioner and on his request did not
mention about the alleged rape, is unbelievable. He further submits that the
prosecutrix also refused to get herself medically examined. Mr. Singhal
submits that when the prosecutrix recorded her statement under Section 164
Cr.P.C., she further improved upon her earlier versions.
5. Mr. Singhal submits that the petitioner has since resigned from his job
and that the petitioner has no intentions of re-establishing any contact or ties
with the prosecutrix. He submits that the petitioner is a resident of Mussorie
and would return to Mussorie. The petitioner was directed to be produced
from custody. He has been so produced. He has stated and given an
assurance to the Court that he would not come in contact with the
prosecutrix. He would not try to pressurize or coerce or threatened her or
cause any harm to the prosecutrix. He has stated that he would return to
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Mussorie and stay in Mussorie and that he shall not come to Delhi except to
attend the court hearings. He has further submitted that he is willing to be
subjected to such conditions as this Court may consider appropriate to
safeguard the interests of the prosecutrix and other prosecution witnesses
and assuage the threats perceived by them which have no basis. Mr. Singhal
submits that no useful purpose would be served by detaining the petitioner
any further in judicial custody at this stage and he has already undergone
incarceration for nearly 78 days.
6. A status report has been filed by the State. It is stated that during
investigation, the complainant has provided snapshots of whatsapp
messages/conversations which took place between her and accused earlier.
On perusal of the conversation, it is found that both were good friends and
used to work in the same company. The FSL report regarding examination
of the whatsapp conversation found on the mobile instrument of the accused
is awaited.
7. The application is opposed by the prosecutrix who is present in Court
with her counsel. Learned counsel for the prosecutrix has tendered in Court
the photocopy of the whatsapp conversation stated to have been exchanged
by the petitioner accused with the prosecutrix. He has referred to certain
extracts from the said conversation to submit that the allegation of rape
against the petitioner is made out. Learned counsel for the prosecutrix
submits that in the first complaint, the prosecutrix did not allege rape on
account of the social stigma attached to it, however, subsequently, she
gathered courage and came out with the full disclosure. The prosecutrix
submitted that the petitioner threatened her in the police station that he shall
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throw acid upon her. He also threatened the prosecutrix with dire
consequences. She has pleaded that the petitioner is a danger to the well-
being of the prosecutrix and for this reason he should be kept behind bars.
8. Having heard learned counsel for the petitioner, perused the record,
heard learned APP as well as the prosecutrix and her counsel, I am of the
view that no useful purpose would be served in keeping the petitioner in
judicial custody during the pendency of the trial in the facts of the present
case and he should be released on regular bail. It would need examination
whether the prosecution has indeed come out with a fuller and truthful
disclosure in the FIR in question after making the initial FIR No. 618/2016
on 12.08.2016 wherein allegations against the petitioner only relate to
hurling of abuses in a filthy manner and of issuance of treat to kill the
prosecutrix. It would need examination whether the prosecutrix did not
make allegations of rape against the petitioner in the first complaint dated
12.08.2016 on the asking of the petitioner. The complainant/prosecutrix has
refused medical examination. The status report discloses and even the
whatsapp communication exchanged between the prosecutrix and the
petitioner, prima facie, show that that the petitioner and the prosecutrix were
in a relationship. Whether or not they established a physical relationship;
whether the same was consensual or not; whether the petitioner has
committed rape upon the prosecutrix after administering some drug or
alcohol upon the prosecutrix or by making her false promise of marriage, are
issues which would be examined by the trial court at the trial of the case. At
this stage, since the investigation is complete and charge-sheet stands filed,
no purpose would be achieved in detaining the petitioner in custody any
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longer during the pendency of the trial.
9. The petitioner has undertaken that he shall not contact the prosecutrix
or issue any threat or coercion to her or any of the prosecution witnesses.
He has undertaken that he shall return to his home town Mussorie and shall
come to Delhi only to attend to the case and not otherwise. The fear and
apprehension expressed by the prosecutrix of her being subjected to physical
harm or attack has to be viewed in the light of the fact that even in her
subsequent complaint leading to registration of FIR No.623/2016 on
17.08.2016, she did not allege that on the previous day, the petitioner had
threatened her with dire consequences. She had, inter alia, stated that;
"..........But yesterday at Hauz Khas police station, where we
met, he made it clear that he had no intention of honouring my
commitment and "I could go to hell". Therefore, I am
submitting this complaint now. Please take necessary
immediate action because I fear that he may harm me and I
fear treat to my life and safety from him."
10. Accordingly, the petitioner is directed to be released on bail upon his
furnishing his personal bond with one surety in the like amount of Rs.
25,000/- to the satisfaction of the trial court. It is further subject to the
condition that at the time of his release, the petitioner shall provide his
mobile phone number to the trial court which shall be kept in working
condition at all the times. The same shall not be changed without prior
intimation to the court. The petitioner shall not get in touch with or in any
way contact the prosecutrix or any of the prosecution witnesses since he has
himself stated that he will not come to Delhi except to attend to the case. It
is directed that he shall not enter Delhi except to attend the case and
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whenever he does so, he shall straightaway report at the police station within
whose jurisdiction the trial court at Saket Court is locked to mark his
attendance. Even when he leaves the Court after the hearing is over, he shall
similarly mark his attendance with regard to his leaving Delhi, and at the
local police station where he is residing at any given point of time. The
investigating officer in the case and the SHO, Police Station Hauz Khas,
within whose jurisdiction, the prosecutrix is residing shall also keep a vigil
to prevent any harm to the prosecutrix from the accused, particularly, on the
date of hearing. The investigating officer shall ensure that the prosecutrix
and the petitioner do not cross their paths or come in direct contact.
11. The application stands disposed of in the aforesaid terms.
VIPIN SANGHI, J.
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