Abdul Hannan v. State (NCT of Delhi)

1. These applications have been filed under Section 438 of the Code of Criminal Procedure, 1973 (Cr.P.C.) for the grant of 2019:DHC:7364 Sections 354/354-A/354-D/376/385/506/509/34 of the Indian Penal Code,1860(IPC).

2. The brieffacts emanating from the case ofthe prosecution are that the FIR in the case has been registered on the basis of the complaintlodged by the prosecutrix wherein she has alleged thatshe befriended one Adnan Ashraf, co-accused in the year 2013. In the month ofJuly,2015,Adnan Ashrafinvited her to a hotel for a party and there he intoxicated her and took obscene photographs of the prosecutrix to blackmail her in the future. Thereafter,Adnan Ashraf along with his two friends, namely, Abdul Hannan and Md. Adil ('petitioners', herein) sexually harassed/assaulted her on many occasions after blackmailing her onthe basis ofthe above-mentioned photographs. It is further alleged that on 22.6.2016, the accused persons took her before a Maulana and there Adnan Ashrafmarried her after compelling her to do so in the presence ofthe petitioners. Further, in the month of November, 2016, Adnan Ashraf and the petitionersforciblytouchedthe prosecutrixinappropriatelyin aphoto studio andtriedtorape herbutsomehow she managedto escape.

3. The prosecution has filed the status report wherein it is stated that during the course of investigation, the statement of the prosecutrix under Section 164 Cr.P.C. was recorded by the Metropolitan Magistrate on 10.9.2018 in which, she supported the facts mentioned in the FIR of the present case and stated that the accused Adnan Ashraf had married her after putting her m fear, Thereafter, on 10.9.2018, Adnan Ashraf got arrested in the present case whereas the petitioners are absconding and against whom application for declaring them proclaimed offenders is already pending before the concerned Court.

4. It is perused that the first anticipatory bail application filed on behalf of the petitioner-Abdul Hannan before this Court was withdrawn vide order dated 17.12.2018 and the first anticipatory bail application filed on behalf of petitioner-Md. Adil before this Court was withdrawn vide order dated 19.12.2018 and these are the second anticipatory bail applications which have been moved before this Courtbythe petitioners.

5. Learned counsel for the petitioners submitted that the coaccused Adnan Ashrafafter being injudicial custody for four months has already been granted bail by the Sessions Court vide order dated 17.1.2019 copy whereofis onthe record.

6. It is also submitted by the learned counsel for the petitioners that the letters as well as the photographs placed on the record show that the complainant on her own will married the main accused and the rest ofthe allegations regarding the exploitation,etc.are false and jfrivolous which is also evident from the letters written by the complainantinthe year 2016 and 2017.

7. Per contra, the learned APP for the State submitted that the charge-sheethas already been filed and the proceedings under Section 82Cr.P.C.initiated againstthe petitioners are going on. I there is material on record to show that there is a possibility offalse implication. However, when the element of criminality is involved; the custodial interrogation is required and/or the other aspects and facts are required to be unfolded in investigation,the applicant is not entitled for anticipatory bail.

9. It is also well-settled law that while considering the question of grant ofanticipatory bail,the Courtprimafacie has to look into the nature and gravity ofthe alleged offence and the role ofthe accused. The Court is also bound down and mustlook into,while exercising its power to grant bail, the antecedents of the applicant and also the possibility of the applicant fleeing from justice, apart from other factors and parametersin view ofthefactsofeach and every case.

10. In the matter ofDr. Subhash Kashinath Mahajan v. State of Maharashtra & Anr., in Criminal Appeal No.416/2018, decided on 20.3.2018,the Supreme Courthas held as under: "112.The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: (i)The nature and gravity ofthe accusation and the exact role of the accused must be properly comprehended before arrest is made; (ii)The antecedents ofthe applicantincluding the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect ofany cognizable offence; (iii)The possibility ofthe applicanttofleefromjustice; (iv)The possibility ofthe accused's likelihood to repeat similar or other offences; a (vi)Impact of grant of anticipatory bail particularly in cases oflarge magnitude affecting a very large number of people;

(vii) The courts must evaluate the entire available material against the accused very carefiilly. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help ofSections 34and 149of the Penal Code, 1860 the court should consider with even greater care and caution because over implication in the cases is a matter ofcommon knowledge and concern;

(viii) While considering the prayer for grant of anticipatory bail,a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention ofthe accused;

(ix) The court to consider reasonable apprehension of tampering ofthe witness or apprehension ofthreatto the complainant; (x)Frivolity in prosecution should always be considered and it is only the element ofgenuineness that shall have to be considered in the matter ofgrant ofbail and in the event ofthere being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order ofbail."

11. Our own High Court in the matter of Vivek Gaur v. Naresh KumarKarotia& Ors.,2012(1)JCC450has held as under; "12. The power of grant of anticipatory bail has been conferred by the Code of Criminal Procedure, concurrently,on the Sessions Court and the High Court. Normally, as a matter of fact, the practice which is prevalent in Delhi is that an accused is first relegated to Court which is considered by way ofjudicial review,in as much as, it reconsiders not only the order passed by the learned Sessions Court but also independently assess the facts as to whether the accused person, in the given case, is entitled to grant of bail or not. Once these two opportunities are utilized by an accused and he is unsuccessful, ordinarily,the accused must submit to the processes oflaw. The law does not countenance that a person who fails to avail the protection of law files successive/repeated anticipatory bail applications, get them rejected and yet does notsubmittothe processes of law, and thereafter, sits on the fence observing the proceedingsandthensuddenlyresurfaces afterthecharge sheet has been filed and applies to the Courtfor grant of anticipatory bail.

13. This is precisely what has happened in the instant case.The respondents anticipatory bail applications were rejected earlierthree orfourtimes after whichthey ought to have submitted to the processes oflaw. Normally, a person who seeks protection oflaw must submit to the processes oflaw. On the contrary,the respondents were declared proclaimed offendersaftertheir anticipatory bail application having been rejected. Certainly, a person declared as a proclaimed offender may not be denied the benefit of anticipatory bail in all circumstances. A A distinction has to be made where a person has been ^ declared as a proclaimed offender withouthisknowledge and cases where a person knows abouthis being required by law enforcing agency yet tries to escape fi"om the same by hook or by crook and then suddenly finds an opportune time to obtain an order to insulate his liberty. Such a benefit conferred on this kind of unscrupulous accused persons,in my view,is a dis-servicetothe law.I feel that the learned Additional Sessions Judge, in the instantcase,by grantingthe benefitofanticipatory bailto anticipatory bail had been rejected."

12. I have gone through the material on record. The material on record, primci-fcicie, does not in any manner, reflect that the prosecution is inherently doubtful or there is a possibility of false implication. A perusal ofthe FIR also showsthatthe prosecutrix has specifically alleged the role of the petitioners vis-a-vis the blackmailing and sexual assaults. She has specifically named the petitioners in the complaint as well as in the statement under Section 164 Cr.P.C. The allegations against the petitioners are grave and serious in nature. In view ofthe allegations made in the FIR and the statement ofthe prosecutrix under Section 164 Cr.P.C.,the custodial interrogation ofthe petitioners is essential. The petitioners have not co-operatedinthe investigation,ratherthey havefledfromthejustice.