Mohd. Mustafa @ Ravi & Anr. v. State Govt. of NCT of Delhi

1. By this petition filed under Section 438 Cr.P.C. the petitioners • seek anticipatory bail in FIR No. 485/2012 registered under Sections 328/354/376(G)/506/34 IPC at PS Dabri, South West Delhi.

2. Learned counsel for the petitioners submits that the petitioners have been falsely implicated in the present case as the petitioners along with other residents of the locality have raised their voice against the illegal and unlawful activities of the complainant and her family BAIL APPLN. 428/2013 Page 1 of[5] 2013:DHC:6899 members for selling carouse liquor in their premises. Counsel also submits that the petitioners along with the other residents of the locality have lodged a number of complaints against the said illegal and unlawful activities of the complainant and her family members since

2011. Counsel further submits that the petitioners are also permitted by the area police to install a CCTV camera so as to record the said illegal and unlawful activities of the complainant and her family members. Counsel also submits that the complainant and her family members are facing at least 24 criminal trials under various offences.

3. Learned counsel for the petitioners also submits that earlier the FIR was registered under Sections 328/354/506/34 IPC and the petitioners were granted anticipatory bail vide order dated 10.01.2013 passed by the learned ASJ, Dwarka Courts, Delhi. Counsel submits that it is after a gap of two months that the police had added Section 376(2) (g) of IPC after a protest petition being filed by the complainant with the consent of the magistrate. He further submits that at the first instance, the complainant made the allegation that the petitioners had themselves told her that they had raped her and the incident ofrape was also recorded by them in their mobile phones but concocted a new story later, when the petitioners were granted bail with the sole objective to BAIL APPLN. 428/2013 M further harass the petitioners.

4. The bail application moved by the petitioners is strongly opposed by the learned counsel for the complainant. Counsel for the complainant submits that there is no case registered against the complainant for the alleged sale of liquor. Counsel submits that on the date of alleged incident, the complainant was residing with her mother and the petitioners who were residing in their neighbourhood came to their house on the pretext of giving them Prasad from Ajmer Sharif. She consumed the same and became unconscious. After 3-4 hours, when she regained consciousness, she was having pain in her stomach and felt that something wrong had happened with her. Counsel also submits that numerous complaints were lodged by the complainant after the said incident to the police but all in vain as no action was taken by the police on the said complaints made by the complainant. Counsel also submits that the CCTV camera was installed just with a view to embarrass and unveil the complainant.

5. Learned APP for the State has apprised this Court that the mobile phones ofthe petitioners were seized by the police and had been sent to the FSL for expert opinion and the FSL report falsifies the allegations of the complainant that she was video-graphfed by the petitioners at the N / time of alleged commission of rape upon her. Learned APP for the State submits that only a few videos were found but the same were not related to the complainant.

6. Counsel also submits that earlier the mother of the complainant filed a complaint dated 03.10.2011 complaining about the alleged threats extended by the petitioners to grab the property. Counsel submits that the said complaint lodged by the mother also falsifies the allegations made by the complainant.

7. I have heard the learned counsel for the petitioners and the learned APP for the State.

8. One of the parameters to be considered while deciding the application for anticipatory bail is the frivolity of prosecution. It has been held in Jai Prakash Singh v. State ofBihar and Anr., AIR 2012 SC1676, thai "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."

9. Considering the facts and circumstances of the present case, wherein the version ofthe prosecution appears to be tainted, in the light of the above legal position, I am inclined to grant anticipatory bail to the petitioners.

10. In the event of arrest, the petitioners shall be granted bail, subject to their furnishing personal bond in the sum of Rs.50,000/- each with one surety each in the like amount to the satisfaction of the SHO/IO of the concerned police station, subject to the condition that the petitioners shall fully cooperate in investigation and will not create any hindrance or impediment during the course of investigation.

11. With these directions, the petition is disposed of. DASTI.

APRIL 23,2013 V A kailXsh gambhir, j.