It is easier to reject an application for bail in a non-bailable case than to a bail once granted: High Court Of New Delhi

This petition has been filed under Section 439(2) CrPC for cancellation of bail granted vide order dated 18.08.2021, and the same issue was held in the judgement passed by a single bench judge HON’BLE MR. JUSTICE SUBRAMONIUM PRASAD, in the matter BHAGYASHREE V. STATE OF N.C.T. OF DELHI & ANR dealt with an issue mentioned above.

The Petitioner was a 27-year-old woman wher Respondent No.2 was the student who was pursuing her BCom in Invertis University in the year 2015, later the Petitioner fell in love with Respondent No.2 and they both were in a relationship.

One day Petitioner reached Delhi at 3:30 PM, CRL.M.C. 2392/2021 the Respondent No.2 said to her that he was hungry and they should go to her room to have food, as well as to rest and talk. At about 4:30 PM, Respondent No.2 reached the Petitioner’s flat and, allegedly, at 5:00 PM, he started touching her. So the petitioner questioned the respondent for the action which took place

In return, Respondent No.2 stated that he loved the Petitioner, intended to marry her and that after the marriage they would be in such physical relations, Later it is alleged that Respondent No.2 forcefully had sexual intercourse with the Petitioner. When the Petitioner started crying and told Respondent No.2 that she would file a police complaint against him, Respondent No.2 threatened to kill her and her mother if she filed a complaint or if she informed anyone.

It was also mentioned that During the relationship between the Petitioner and Respondent No.2, it has been stated that Respondent No.2 visited her flat many times, and despite her refusal, he would have sexual intercourse with her, And also when Petitioner would bring up the prospect of marriage, Respondent No.2 would counter the same with some excuse or CRL.M.C. 2392/2021 the other.

On 13.02.2020, Respondent No.2 visited the flat of the Petitioner around 7:00 PM and had sexual intercourse with her against her wishes, and on 14.02.2020, Respondent No.2 left the flat informing the Petitioner that he would be going home to speak to his family about their marriage. On the said complaint, the instant FIR was registered against Respondent No.2 herein.

Mr Deepak Sharma, learned Counsel for the Petitioner, states that the learned Additional Sessions Judge has passed the impugned Order dated 18.08.2021 without considering all the essential facts and has also failed to peruse the detailed WhatsApp chats and conversations which have been filed by both the parties. Mr Sharma has submitted that the impugned Order passed by the learned Additional Sessions Judge is devoid of the version of the Petitioner and, therefore, is against the principle of natural justice and the Petitioner’s right to a fair trial.

Furthermore, when an order granting bail is passed by a lower court, the appellate court must be slow to interfere with such an order until and unless it is shown that the said order was passed without due application of judicial mind. In Mahipal v. Rajesh Kumar, 2020 (2) SCC 118.

This was a case of breach of promise to marry, thereby amounting to rape. To establish whether sexual intercourse was committed in the backdrop of a false promise of marriage, it has been held by the Supreme Court that the consent for sexual intercourse which is derived from the prosecutrix must be coerced or misguided or obtained through deceit.

Meanwhile, In the impugned Order dated 18.08.2021, the learned Additional Sessions Judge has set the following conditions while granting bail to the accused:

  • The accused must furnish a personal bond in the sum of Rs. 50,000/- with one surety of the like amount to the satisfaction of the Learned MM/Link MM/Duty MM.
  • The accused shall not make any attempt to contact the prosecutrix or any of the prosecution witnesses either directly or indirectly.
  • The accused shall not threaten the witnesses or tamper with the evidence.

And few more conditions were stated by the Additional Sessions Judge.

The court perused the facts and argument’s presented, it believed that-  “In case of any violation of the conditions of bail set by the learned Additional Sessions Judge, this Court grants liberty to the Petitioner herein to approach the competent Court following the law to seek cancellation of the bail which has been granted to the Respondent No.2 The petition is dismissed with the above observations along with the pending application(s) if any”.

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Judgment Reweied by: Mandira BS

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