Delhi High Court - Orders
Asif Khan @ Ashu Bhai Guruji vs State Of Nct Of Delhi on 7 September, 2021
Author: Manoj Kumar Ohri
Bench: Manoj Kumar Ohri
$~28
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 671/2021, CRL.M.A. 3171/2021 & CRL.M.A.
4757/2021
ASIF KHAN @ ASHU BHAI GURUJI ..... Petitioner
Through: Mr. Dhan Mohan, Mr. Puspendu
Sukla, Mr. Ashok Kr. Mishra, Ms.
Tanu B. Mishra, Mr. Ravi Mishra and
Ms. Kawaljeet Kaur, Advocates.
versus
STATE OF NCT OF DELHI ..... Respondent
Through: Ms. Neelam Sharma, APP for State.
Mr. Abhijat, Advocate for the
complainant.
CORAM:
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI
ORDER
% 07.09.2021
1. The present bail application has been filed under Section 439 Cr.P.C. on behalf of the applicant seeking regular bail in FIR No. 240/2018 registered under Sections 376D/354/506/328/377/34 IPC and Sections 8/10
(k) of the POCSO Act at Police Station Hauz Khas, New Delhi.
2. Mr. Dhan Mohan, learned counsel for the applicant, submits that the applicant is an Astrologer by profession and is about 58 years of age. He further submits that the applicant has been falsely implicated in the present case at the behest of the complainant in collusion with senior police officers only for the purpose of extortion of money from the applicant. Learned counsel further submits that the applicant was arrested on 13.09.2018 and later released on interim bail vide order dated 15.04.2020 passed by learned ADJ on Duty, South District, Saket Courts, New Delhi, which has been continued till date. It is submitted that there has been no allegation that the applicant has misused the concession granted to him by the Trial Court.
3. In support of his submissions, learned counsel for the applicant has referred in detail to the FIR, the statement of the prosecutrix recorded under Section 164 Cr.P.C. as well as to the charge sheet filed in the present case. While referring to the FIR registered on 08.09.2018, it was submitted that the prosecutrix has claimed that she knew the applicant since the year 2008 on account of her visits to him for treatment of pain in her daughter's legs. She has alleged that while treating her daughter, the applicant used to remove her clothes and apply oil and further claimed that the treatment provided by the applicant was effective.
4. Learned counsel for the applicant submitted that the prosecutrix has materially improved upon the allegations made in the FIR in her statement recorded under Section 164 Cr,P.C., inasmuch as she has not only added further particulars to the alleged incident but also added a new incident altogether. It is submitted that in the FIR, it was alleged that on the occasion of Diwali in the year 2013, the prosecutrix had gone to the applicant's Ashram to offer her greetings. At that time, his manager, namely Ravi Shankar had spiked the drinking water offered to her, wherefore she lost consciousness and upon waking up, she realised that she had been exploited ('shoshan kiya'). The applicant is alleged to have threatened her on this occasion that in case she disclosed the incident to anyone then she, her husband and her child will be killed. However, in her statement recorded under Section 164 Cr.P.C., the prosecutrix added that the incident was also video-graphed. To support his contention of material improvements in the statement of the prosecutrix, learned counsel has also pointed out that the prosecutrix has stated in the FIR that she was exploited by the applicant, his son and son's friend Saurabh at the Ashram ('galat kaam kiya') between 2008 and 2016. He submitted that there was no allegation of exploitation regarding the year 2017 in the initial complaint made by the prosecutrix and the same has been levelled in the statement recorded under Section 164 Cr.P.C. as an afterthought.
5. Insofar as the incident alleged to have occurred on the occasion of Holi in the year 2017 is concerned, it was stated by the prosecutrix in the FIR that she was called by the applicant to his Ashram in Rohini at 3 p.m., where the applicant and his friends gave beatings to her and pulled her hair. In her statement recorded under Section 164 Cr.P.C. however, it was stated that the applicant, his son, son's friend Saurabh, manager Ravi Shankar and three other persons gave beatings to her, pulled her hair and committed gang rape on her. The applicant is also alleged to have asked her to bring her daughter on the next visit. Learned counsel submitted that without prejudice to the factum of inconsistency in the statements, the falsity of the allegation with respect to the incident of the year 2017 is also apparent from the fact that on the day of alleged incident, the festival of Holi was being celebrated and the applicant, along with his son and others, was present in a function organized by the Resident Welfare Association (RWA) of B-4, Sector 7, Rohini. A video of this event was uploaded on Facebook by one of the members of the RWA. It shows that the applicant, his son and others were present at the RWA's function at about 2:53 p.m.
6. Learned counsel for the applicant further contended that after registration of the FIR, the applicant started receiving multiple calls from one mobile number 8851891733. The transcripts of the conversations have been placed on record which indicate demand of money for closure of the case. Learned counsel further submitted that the aforesaid number belongs to one Ram Naresh Sharma, who is allegedly an associate of the prosecutrix. He submitted that the aforesaid allegation is established from the fact that the prosecutrix has used the same mobile number while lodging a criminal case against one Rajinder Jain being FIR No. 203/2019 registered under Sections 328/376/506 IPC at Police Station Mandawali Fazal Pur, Delhi, wherein it was alleged that after giving her a spiked cold drink, the accused therein established forcible relations with her and also video-graphed the same.
7. It is next contended that except for the oral statement of the prosecutrix, there has been no corroborative material in the form of medical or forensic evidence. It is submitted that the prosecutrix has not even given her SIM card for examination on which she has claimed that calls were received from the applicant. She has rather claimed to have broken it. Learned counsel further submitted that the prosecutrix was under no compulsion to visit the applicant's Ashram, yet the FIR came to be registered after a delay of about one year in 2018.
8. It is further submitted that the allegations of video recording being made at the time of incident of 2013 and gang rape having been committed in 2017 were levelled for the first time in the statement recorded of the prosecutrix under Section 164 Cr.P.C. after three days of the registration of the FIR. Learned counsel submitted that even as per the statement of the child victim recorded under Section 164 Cr.P.C. on 12.09.2018, the applicant had allegedly touched her cheeks and lips which she did not like. She has not stated anything about being given medical treatment by the applicant between the years 2008 and 2013, when as per the prosecutrix he treated her for pain in legs by removing her clothes and massaging with oil.
9. It was next submitted that after framing of the charge, the matter was listed four times before the Trial Court for recording the testimony of the prosecutrix, however, she did not appear on all these dates. This constrained the Trial Court to observe that the prosecutrix had been appearing at the time of hearing of the bail applications but she has not appeared before the Court for recording of her testimony. It is further submitted that the Trial Court has now granted a last and final opportunity to the prosecutrix for her examination.
10. Ms. Neelam Sharma, learned APP for the State, duly assisted by Mr. Abhijat, learned counsel for the complainant, has vehemently opposed the bail application. It is submitted that the applicant continuously exploited the prosecutrix from the year 2013. It is further submitted that the prosecutrix has given details of the incident committed on the day of Diwali in the year 2013. She has stated that the applicant continued to exploit her by extending threats and the incident was repeated not only by the applicant, but his friends and son also. It is submitted that the prosecutrix has alleged that in the year 2016, the applicant's son, Samar and his friend Saurabh exploited her in unnatural manner. She complained about it to the applicant but he did not pay any heed. The prosecutrix has further alleged that in the year 2017, the applicant's son asked the prosecutrix to bring her daughter and when she complained to the applicant, he also said the same thing. She has also alleged in her statement recorded under Section 164 Cr.P.C. that in the year 2017, on the occasion of Holi, she was subjected to gang rape by the applicant, his son and others. It is submitted on behalf of the prosecutrix that on 08.08.2018, when the prosecutrix had visited the applicant's Ashram along with her daughter, the applicant had touched the daughter of the prosecutrix on her cheeks and lips. The visit stands verified by the CDR details of the prosecutrix and the applicant as well as by the visitors' entry register of the Ashram.
11. I have heard learned counsels for the parties and gone through the case records.
12. In the FIR, the prosecutrix has levelled allegations with respect to the incident that took place on the occasion of Diwali in the year 2013. Insofar as the present applicant is concerned, the prosecutrix has levelled allegations with respect to the incidents that took place on the occasion of Diwali in the year 2013 and on the occasion of Holi in the year 2017. A perusal of the FIR would show that so far as the second incident is concerned, there was no mention of gang rape having been committed upon the prosecutrix and for the first incident, no videography was alleged. These allegations came up for the first time in the statement recorded of the prosecutrix under Section 164 Cr.P.C. So far as allegations of inappropriate touching of the daughter of the prosecutrix are concerned, it is noted that there is inconsistency as to the date of the alleged incident in the two statements recorded of the prosecutrix.
13. On a specific query, learned APP for the State, on instructions, informed that the prosecutrix in the present matter had subsequently lodged another FIR bearing No. 203/2019 against one Rajinder Jain, wherein she had given her mobile number as 8851891733 i.e., the same number from which the applicant is stated to have received the extortion calls.
14. It is noted that the last incident against the prosecutrix is alleged to have taken place in the year 2017, yet the FIR came to be registered only in the year 2018 i.e., after a delay of about one year.
15. Keeping in view the facts and circumstances of the case, the fact that the applicant was arrested on 13.09.2018 and later released on interim bail, the applicant is directed to be released on regular bail on his furnishing a personal bond in the sum of Rs.50,000/- with one surety of the like amount to the satisfaction of the concerned Trial Court and subject to the following further conditions :-
i) The applicant shall remain available on mobile number, i.e., 9910681601, which he undertakes to keep operational at all times during the pendency of the trial.
ii) The applicant shall not leave the NCT of Delhi without prior permission of the concerned Court.
iii) In case of change of residential address or contact details, the applicant shall promptly inform the same to the concerned Investigating Officer as well as to the concerned Court.
iv) The applicant shall not directly/indirectly try to get in touch with the complainant or any other prosecution witnesses or tamper with the evidence.
v) The applicant shall mark his presence before the Investigating Officer/SHO, Police Station Hauz Khas, New Delhi on first Monday of every month.
vi) The applicant shall regularly appear before the concerned Court during the pendency of the trial.
16. The bail application stands disposed of in the above terms along with the pending applications.
17. A copy of this order be communicated electronically to the concerned Jail Superintendent for information.
18. Copy of the order be uploaded on the website forthwith.
19. Needless to state that nothing observed hereinabove shall amount to an expression on the merits of the case and shall not have a bearing on the trial of the case.
MANOJ KUMAR OHRI, J SEPTEMBER 7, 2021 'dc' Click here to check corrigendum, if any