Where nothing is left to be recovered from the petitioner, no purpose would be served in taking the petitioner in custody: High Court of Delhi

The case of the prosecutrix that the consent for physical relationship was given only because of a commitment by the petitioner that he would marry her and that that promise was fake right from the beginning can only be established when the prosecutrix steps into the witness box and leads evidence. This was held in DIVAKAR CHOUDHARY. V. STATE OF NCT OF DELHI. [W.P.(C) 7526/2020] in the High Court of Delhi by a single bench consisting of JUSTICE SUBRAMONIUM PRASAD.

The facts are that the prosecutrix was introduced to the petitioner her aunt and since then they were friends. The petitioner and the prosecutrix had undergone a fake marriage ceremony on the pretense of which the petition had established physical relations with the petitioner and had also promised to marry her by proper religious ceremony later but has stating to avoid her. Thus petition under Section 438 Cr.P.C has been filed for grant of bail in the event of arrest in FIR u/s 376/323/509/34 IPC.

The counsel for the petitioner contended that the prosecutrix has alleged that the petitioner established physical relations with her till February 2020 but the FIR was lodged in December 2020. The prosecutrix has not given any reason for the delay but for the saying that her parents were not supporting her and that there is a serious inconsistency in the statement of the prosecutrix.

The counsel for State contended that after filing of the FIR the petitioner did not join the investigation and It is further contended that the prosecutrix has stated that the phone which was handed over by the petitioner was not the phone which was used for taking photographs of the alleged fake marriage.

The court made reference to the judgment of Apex court in Siddharam Satlingappa Mhetre v. State of Maharashtra, wherein parameters for granting anticipatory bail have been laid down it was held that “The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence; (iii) The possibility of the applicant to flee from justice; (iv) The possibility of the accused’s likelihood to repeat similar or other offences;(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people”.

The court also made reference to para 113 the above-mentioned judgment of the Apex court, wherein it was observed that “Arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record”.

Considering the facts of the case and the legal precedents, the court observed that, investigation in the matter is more or less complete, statements of the parents of the prosecutrix and the parents of the petitioner had been recorded under Section 161 Cr.P.C. Mobile phone of the prosecutrix and the petitioner was already in the custody of the Police. Thus it was a fit case to grant anticipatory bail. The court granted anticipatory bail on certain conditions to be met.

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