S.B.YADAV Petitioner Through Mr. O.P. Khadaria, Adv. v. THE STATE OF DELHI Through

1. By these applications the Petitioners seek anticipatory bail in case FIR BAIL APPLNS. 788/2011 & 824/2011 page 1 of10 2011:DHC:7084.r^ No. 100/2011 under Section 7/13 POC Act and 384/201/120-B IPG registered at P.S. JahangirPuri.

2. Learned counsel for the Petitioner contends that FIR against the Petitioners have been lodged belatedly and that too not on the complaint of the complainant but on cross-examination ofthe complainant by putting him leading questions in the vigilance enquiry. The version ofthe complainant is not supported by any documentary or other evidence. As a matter of fact when the prosecutrix was recovered inthe FIR lodged at the Police Station, the Petitioner S.B. Yadav was the SHO and Petitioner HC Dalip Singh was the Investigating Officer. She made clear allegations against the complainant for raping her. Since the Petitioners did not succumb to the pressure of senior officers who were interested in helping the complainant, the Petitioners have been made a scapegoat. Despite applications for bail filed before the Hon'ble Court by the complainant and the complaints made to the senior officer, It is not alleged that the Petitioners demanded or were paid bribe. Even in the complaint dated 8^*^ February, 2011 filed on 1?"^ February, 2011 after a periodof morethan 7 months there are no allegations against the Petitioner.

3. Reliance is placed on Rashtriya Mukti Morcha Vs. Suraj Mandal 1996 BAIL APPLNS. 788/2011 & 824/2011 page 2 of10

'V. IIIAD (DELHI) 481 to contend that no FIR can be registered on the basis of cross-examination conducted of the complainant. Relying on Hari Gopal Wadhwa & Ors. Vs. State Bail Application No. 1239/07 decided by this Court on 20"" August, 2010 to contend that bail should be granted in a case where offence is made out on the basis of allegations brought out in the suggestions. The conduct of the Petitioners have been that during their tenure the second statement of the prosecutrix under Section 164 Cr.P.C. was not permitted. However, once the investigation was transferred from them, the Investigating Officer conceded for grant of anticipatory bail to the complainant in a case under Section 376 IPG at the instance of senior officers on the ground that the prosecutrix is making contradictory statements. The call details of the ACP of the Petitioner with the senior officer clearly reflects that at the instance of senior officers, the Petitioner was instructed not to arrest the accused Naresh Gupta. Reliance is placed on Sidharam Satingappa Mhetre Vs. State of Maharashtra and Ors. 2010 XII AD (S.C.) 340.

4. It is further contended that the statement of Naresh Gupta, the complainant proceeds on the assumption that the applicant entered into a criminal conspiracy with the prosecutrix and her mother to extort money BAIL APPLNS. 788/2011 & 824/2011 page 3 of10 r> from the complainant. This assumption is totally contrary to the facts on ^ record. Even co-accused Anil Gupta had filed an application on 2"'' January, 2011 seeking further investigation under Section 173(8) Cr.P.C. wherein also he alleges that prosecutrix and her mother were trying to extort money. However there was no allegations that the Petitioners demanded money. The Petitioners have joined and cooperated with the investigation. There is no possibility that they would tamper with the evidence which is only oral in nature and hence they should be granted bail.

5. Learned APP on the other hand contends that there are clear allegations of demand and acceptance of money by the Petitioner. Reference is made to the statement of Rattan Lai the co-brother of the complainant who paid the money. In his statement he has stated that the complainant was called a number of times to the Police Station and demanded money. He was informedthat to sort out the entire matter Rs. 10 lakhs would have to be spent. He had given Rs. 20,000/- to HC Dalip Chauhan to finish ofthe case when HC Dalip Singh said that the prosecutrix was under his control and she would give the statement as desired. On reaching the Police Station he was shown the statement of prosecutrix recorded under Section 164 Cr.P.C. to which Rattan Lai stated that this was BAIL APPLNS. 788/2011 & 824/2011 page 4 of10 I © a difficult task and HC Dilip Singh said that the money was demanded for the same and he has settled the matter for Rs. 8 lakhs. He paid him an amount of Rs. 2.[5] lakhs. He further paid a sum of Rs. 3 lakhs to HC Dalip Chauhan in the presence of SHO S.B. Yadav. When an application was moved, the Learned Trial Court refused to re-examine the prosecutrix under Section 164 Cr.P.C. Despite all this notices were issued to the complainant and money was demanded every time he went to join the investigation. It is stated that delay in reporting the matter is explained by the complainant in his representation dated 8^*^ February, 2011 wherein he has stated that he got the courage to report the matter only when he learnt of a similar case being registered against the same set of officers by an order of the Court. The abovementioned FIR was registered after a detailed enquiry. In view of the conduct of the Petitioners and the serious offences committed by them, no case for grant of anticipatory bail is made out.

6. I have heard learned counsel for the parties. The gist of the prosecution case is that the prosecutrix went missing from her house in Jahangir Puri on the 18^'' September, 2009. Prior thereto the prosecutrix was working as a maidservant at the house of the complainant. Initially S.I. Shri Bhagwan was entrusted withthe investigation, who made efforts to tracethe BAIL APPLNS. 788/2011 <& 824/2011 page 5 of10 r L. prosecutrix and the alleged Niranjan, an employee of Naresh Gupta the complainant in the present case. Since the prosecutrix could not be located on 2"^* February, 2010 the SHO handed-over the investigation to HC Dalip Singh for further investigation. HC Dalip Singh made efforts to trace the prosecutrix at Kolkata and various other places. Ultimately on 2"'' July, 2010 the prosecutrix was found at Moradabad by HC Dalip Singh and other staff accompanied by the mother ofthe prosecutrix Smt. Ansaroo Khatoon. On 3'"'' July, 2010 she was brought to Delhi and her statement under 161 Cr.P.C. recorded. On 4'^ July, 2010 the statement of prosecutrix was recorded under Section.164 Cr.P.C. in which she alleged that the complainant Naresh Gupta, Niranjan and Santosh raped her. She however spared Anil Gupta whose name she had taken in her statement under Section 161 Cr.P.C. on 3'"'' July, 2010. On 15'^ July, 2010 a notice was sent to Naresh Gupta under Section 160 Cr.P.C. by HC Dalip Singh to join the investigation on 19'^ July, 2010. On the 16^'' July, 2010 in the early morning a raid was conducted at the residence of the complainant Naresh Gupta. However his co-brother contacted a senior officer posted out ofDelhi who in turn contacted the ACP who asked the SHO to leave the residence of complainant. Thus the complainant was not arrested and the Petitioner left BAIL APPLNS. 788/2011 & 824/2011 page 6 of10 \ his residence. However, SI Shri Bhagwan and HC Dalip Singh remained there to arrest Santosh, the servant of complainant Naresh Gupta. It is alleged that after this stage negotiations took place between co-brother ofthe complainant Rattan Lai and HC Dalip Singh atthe instance ofInspector S.B. Yadav for withdrawing the name of the complainant from the statement of the prosecutrix. Shri Rattan Lai the co-brother ofNaresh Gupta paid a sum of Rs. 8 lakhs. However, this allegation was not leveled by the complainant in his application for bail made before the Court or in complaints made to the Commissioner of Police. Application was filed in the Courtto record the statement of prosecutrix along with an affidavit of the prosecutrix and her mother stating that the name of the complainant was inadvertently mentioned in her previous statement made before the Court and thus a fresh statement under Section 164 Cr.P.C. be recorded. The Learned Trial Court rejected the application for re-recording the statement of the prosecutrix under Section 164 Cr.P.C. In view of the conduct of the Petitioners the investigation was transferred to SI Vinita Prasad. Thereafter other accused Santosh @ Sumit @ Rahul was arrested by her and non-bailable warrants against the accused Naresh Gupta and Niranjan were obtained from the Court of Learned Additional Sessions Judge. Non-bailable warrants were BAIL APPLNS. 788/2011 & 824/2011 page 7 of10 obtained against Naresh Gupta, Niranjan by ASI Tejpal on the instruction of the Petitioner S.B. Yadav while investigation was being done by SI Vinita. The complainant Naresh Gupta was granted anticipatory bail on the ground that the prosecutrix was making contradictory statements on the 28^^ October, 2010. On completion of investigation the charge-sheet was filed on November, 2010.

7. On 2"'' January 2011 an application was filed by the co-accused Anil Gupta for further investigation under Section 173 (8) Cr.P.C. wherein the r Court passed orders for further investigation on the points raised. On 17' February, 2011 a typed complaint dated 8"^ February, 2011 was filed by the complainant before the Commissioner of Police stating that he has been falsely implicated in case FIR No. 540/2009 under Section 363/366/376/506/34 IPC P.S. Jahangir Puri. Even in this detailed typed complaint there is no allegation that the Petitioners extorted money from the complainant. The only allegations were against the prosecutrix and her mother for extorting money. A vigilance enquiry was ordered in the said complaint by the Commissioner of Police. When Naresh Gupta and Rattan Lai were called for the enquiry and they were cross-examined by the Inquiry Officer, they revealed that the Petitioners got Naresh Gupta falsely BAIL APPLNS. 788/2011 & 824/2011 page 8 of10 A ^ implicated and extorted money from them. Subsequently Rattan Lai also produced CDs of statements between himself and the prosecutrix revealing how Petitioner was falsely implicated.

8. The issue at the present stage is whether the Petitioners should be granted anticipatory bail or not. The allegations are serious in nature. The Complainant and his co-brother in the statement before the vigilance enquiry and the statements recorded during investigation have brought out that how \(||||^ they were falsely implicated. After initially getting implicated the complainant by the prosecutrix who was under the control of HC Dalip Singh thereafter money was taken to sort out the matter. This is evident even from the fact that though a notice was given on 15^^ July, 2010 to the complainant to jointhe investigation on 19^ July, 2010, however, without waiting for him to join the investigation a raid was conducted in the early morning at his house on the 16^*^ July, 2010. Further, though the investigation was transferred to SI Vinita Prasad, an application was got moved through ASI Tejpal on the instructions of the Petitioner S.B. Yadav seeking non-bailable warrants against the complainant. As per the statement ofRattan Lai the co-brother recorded during investigation SI Dalip Chauhan was made to return Rs. 1 lakh by the subsequent SHO of the Police Station, BAIL APPLNS. 788/2011 & 824/2011 page 9 of10 PS Jahangir Puri. Not only they demanded and accepted money, HC Dalip Singh also asked the favour of getting 5 tyres of a Santro Car changed and items like rice and wheat for his house. In view of the fact that the allegations are serious in nature and the investigation is at a crucial stage, I am not inclined to grant anticipatory bail to the Petitioners.

9. Petitions and pending applications are dismissed. r ij ' fy MUKTA GUPTA,J SEPTEMBER 01, 2011 'ga' BAIL APPLNS. 788/2011 & 824/2011 page 10 of10