Full Text
NIKHIL JAIN ......Petitioner
Through: Mr. Gaurav Kochar, Advocate
Through: Mr. Panna Lal Sharma, Additional Public Prosecutor for State with
SI Dheer Singh Ms. Supriya Juneja, Advocate for complainant
JUDGMENT
1. Vide present petition, petitioner is seeking bail in FIR No. 302/2020, under Sections 376/376-D/323/506/109/34 IPC, registered at police station Farsh Bazar, Delhi.
2. The petitioner is in judicial custody in this case since 23.07.2020. The complainant of this FIR is none else than petitioner’s wife. The present petition has been filed on the ground that petitioner is innocent and the FIR in question is an outcome of matrimonial dispute between the parties. 2021:DHC:1812
3. The brief background of this case, as spelt out in the FIR in question, is that the marriage of complainant with one Paras, brother of petitioner, was solemnized on 06.12.2014. Since Paras had frequent quarrels with his parents, he committed suicide on 22.05.2015. Thereafter, with the consent of parents of both the sides, marriage of complainant was solemnized with petitioner herein on 11.06.2015.
4. The allegations levelled by the complainant in the FIR in question are that petitioner and his parents forced her to enter into illicit relations with other men, whom petitioner used to bring home for money. The complainant has specifically named Praveen, Raghav, Dinesh and Deepak as the persons whom petitioner brought home and forced her to make physical relations with them on different occasions. The complainant has also alleged that petitioner forced her to make relations with Deepak on different occasions even though when she was pregnant. On one such occasion, petitioner made an obscene video of her and threatened that if she refused to do it, he will upload the same on You Tube and will also use this video to extort money from Deepak. It is also alleged that on 05.04.2020, Nikhil (petitioner), on the pretext of taking her and their son for outing, took them to Rudrapur, Uttrakhand and on their way their vehicle met with an accident. But thereafter, petitioner took her to the residence of one Dinesh Khanna, where four five friends of Nikhil made her drink alcohol and thereafter, made sexual relations with her one by one.
5. At the hearing learned counsel for petitioner submitted that marriage between petitioner and complainant was solemnized on 11.06.2015 and since complainant/wife is a quarrelsome lady, matrimonial differences arose between them. Learned counsel further submitted that there is no medical or scientific evidence/material available on record to connect petitioner with the alleged offence.
6. Learned counsel for petitioner has brought to the notice of this Court, which has not been disputed by the prosecution, that the persons named in the FIR, i.e. Deepak Jai and Praveen, have been granted bail by the trial court on 17.08.2020 and 20.09.2020 respectively. Moreover, co-accused Kishan Raghav and the mother of petitioner - Geeta Jain, have also been granted anticipatory bail by this Court on 07.10.2020 and 28.07.2020 respectively. Another co-accused Dinesh Khandelwal has been granted bail by this Court on 17.08.2020.
7. Learned counsel further submitted that since petitioner is married to respondent No.2, no offence under Section 376 IPC is made out and Sections 323/506/109/34 IPC are bailable offences and so, petitioner deserves to be released on bail.
8. On the other hand, learned Additional Public Prosecutor for State opposed the present petition and submitted that charge sheet in this case has been filed and FSL report regarding mobile and laptop of petitioner is still awaited. Further submitted that statement of complainant in this case is yet to be recorded and if petitioner is released on bail, there is strong possibility of his threating the complainant.
9. A perusal of material placed on record reveals that in the impugned order dated 11.02.2021 while dismissing petitioner’s application for bail, the learned trial court has observed that complainant had difficulty in speaking and she was hard of hearing. Further observed that the Disability Certificate of complainant placed on record showed 60% disablement /impairment.
10. The status report dated 27.05.2021 placed on record by respondent/State, notes as under:-
11. The Hon’ble Supreme Court in Ramesh Bhavan Rathod Vs. Vishanbhai Hirabhai Makwana Makwana (Koli) and Another 2021 SCC OnLine SC 335 while deciding bunch of five appeals arising from orders of the High Court of Gujarat granting bail under Section 439 of the Code of Criminal Procedure 1973 to six persons, who were implicated in five homicidal deaths, observed as under:-
12. A cursory look upon copy of charge sheet placed on record reveals that prior to filing of impugned complaint on 21.07.2020, complainant had also filed a complaint on 03.07.2020 at police station Farsh Bazar, Delhi regarding family dispute between her and her husband and mother-in-law but no allegation of rape has been levelled in the said complaint. It is also recorded in the charge-sheet that complainant along with petitioner and their son in the month of April, 2020 had quarantined themselves in Metropolis Society due to Covid pandemic and the official register of enter /exit in the Society, has no entry for the persons namely Praveen Jain, Deepak Jain and Krishan Raghav.
13. Further, the contents of status report also note certain discrepancies between FIR and statement of complainant recorded under Section 164 Cr.P.C. In the opinion of this Court the contents of status report and charge sheet prima facie do not appear to support the case of complainant. However, the parties shall establish their case during trial.
14. It is not disputed that there are matrimonial differences between the parties. Petitioner in this case was arrested on 23.07.2020 and since then he is behind bars. The Previous Conviction /Involvement Report SCRB, Delhi placed on record reveals that no other case is pending against the petitioner. Charge sheet in this case has been filed and trial will take substantial time. Accordingly, this Court is of the considered opinion that petitioner deserves to be released on bail.
15. Consequently, without commenting on the merits of the case, the petitioner is directed to be released on bail forthwith upon his furnishing personal bond in the sum of Rs.20,000/- with one surety in the like amount, to the satisfaction of the Trial Court/ Duty Magistrate, while making it clear that any observation made herein shall not influence the prosecution case during trial.
16. The petitioner shall not directly or indirectly influence complainant and any other witness and shall appear before the trial court as and when directed.
17. A copy of this order be transmitted to the Trial Court and Jail Superintendent concerned for information and compliance.
JUDGE JUNE 04, 2021 r