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Position of the accused to be considered while granting bail: Delhi High Court

If there are chances of the accused tampering with evidence and also looking at the severity of punishments, the chances of the accused absconding or jumping the bail are present, then the grant of bail must be declined. This was held by Hon’ble Justice Subramonium Prasad in the case of Kuldeep Vs. State (NCT of Delhi) BAIL APPLN. 2206/2021 on the 31st of August, 2021 before the Hon’ble High Court of Delhi at New Delhi.

The brief facts of the case are, FIR No.510/2020 dated 25.10.2020 was registered on the statement of the prosecutrix. The prosecutrix is aged about 16/17 years. the prosecutrix lost her father about 10 years back before the lodging of the FIR and her mother left them. All the siblings were living with their grandmother who also passed away four years prior to the filing of the FIR. her aunt (father’s sister) kept the prosecutrix with her and brother of the prosecutrix started living with his aunt. certain differences arose between the prosecutrix and her aunt (father’s sister) and when she narrated out the incident to her aunt and uncle (father’s brother), they kept the prosecutrix with them. It is stated that certain difference arose with them also and the prosecutrix later shifted to her father’ brother and his wife, i.e. accused/Suman. accused/Suman used to work in a Spa and the prosecutrix went with her aunt to the Spa where she was introduced to accused/Poonam, who was running the Spa. It is stated that the next day accused/Suman took the prosecutrix to the parlor where the prosecutrix noticed that there were cabins and there were beds inside the cabins. Accused/Suman threatened her and asked the prosecutrix not to reveal anything otherwise she would kill her. r. The prosecutrix was sent to various customers in the Spa and also to persons in various hotels. The Spa was taken on rent/lease deed in the name of the Petitioner.

The counsel for the petitioner submits that, the petitioner was unaware of what was happening in the Spa. He further states that the lease deed had already expired and, therefore, the petitioner cannot be said to be the tenant. The counsel for the state however submitted that, Material on record shows i.e. the CCTV footage obtained from the premises shows that the petitioner was regularly visiting the Spa. It cannot be said that the petitioner was unaware of the activities of his own wife and that the petitioner was unaware that the girl aged 16/17 years was forced into prostitution and she was being physically exploited in the Spa. Furthermore, The Call Detail Records of the numbers used by the petitioner and his wife shows that the petitioner was in constant touch with his wife. The learned judge heard both the parties and observed that, “While granting bail the court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations. Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail. While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge. Frivolity in prosecution should always be considered and 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.”

The petition was rejected by looking at the age of the prosecutrix and the fact that the petitioner is a man of means, the chances of the petitioner influencing the witnesses cannot be ruled out. There are chances of the petitioner tampering with evidence and also looking at the severity of punishments, the chances of the petitioner absconding or jumping the bail also cannot be ruled out. As stated above, it cannot be said that the petitioner was unaware of the activities of his wife, rather material on record shows that the petitioner was in constant touch with his wife and was a regular visitor to the Spa and, therefore, it can be reasonably presumed at this stage that the petitioner was fully aware of the activities of his wife in the Spa.

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