On 5th January 2021, the Delhi High Courts granted bail to an accused in a case of rape, stalking and criminal intimidation to a scheduled caste woman.
Background:
The allegations made against the petitioner, Danish Khan, were of rape under sec.376, along with sections 354d and 506 of IPC, being stalking and criminal intimidation respectively. After a statement given by the victim, a further charge under Sec.3 (2) (v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (SCST Act) was also added.
Khan sought for anticipatory bail under Sec.438 of CrPC.
Maintainability of Bail application:
Submission by the counsel for the State:
The anticipatory bail application was not maintainable as Sec.18 of the SCST Act bars application of bail when an offence has been committed under the Act.
The applicant was charged with Sec.3 (2) (v) of the SCST Act, which provides life imprisonment with fine for a person committing an offence under IPC which has imprisonment of ten years or more. Since rape is an offence holding imprisonment up to ten years, the bail application was not maintainable.
According to the prosecutrix’s statement, the applicant knowing her to be of a scheduled caste, on a false pretext of marriage committed rape on her, hurled caste slurs and even told her that at best if he makes her his second wife that too was a favour.
Citing various precedents, it was submitted that while considering maintainability, a plea of false/malicious complaint against the applicant could not be looked into at this stage of cognizance and issuance of process. It could have been looked at during the time of trial.
Submission by counsel on behalf of applicant:
The present FIR does not make a prima facie case under the SCST Act. Citing precedents, he stated that an offence committed must be on the mere ground that the victim was from SCST category. There is no such allegation here that the applicant subjected her to rape on the mere fact that she was from a scheduled caste.
Looking at the complaint, only an offence of intentionally insulting with intent to humiliate a member of SC/ST may be made out. However, even such humiliation has to be caused “in public view”, which is not the case here as it happened in private at the house of the victim which cannot be held as “in public view”. Thus, the allegation under Sec.3 (2) (v) of the SCST Act was arbitrarily invoked and cannot stand in the way of the application.
The court considered the issue of maintainability in detail, and agreed with the counsel for the applicant, thus allowing the bail application.
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Merits of the bail plea:
The counsel for the applicant stated that the prosecutrix had been friends with the applicant since 2013. The two took trips together to Shimla and Himachal Pradesh in 2014 and 2016 respectively. There was a seven-year long consensual relationship between the parties. It was only 1-1.5 years after the 2019 sexual assault allegation that the FIR has been filed. Their seven-year relationship and the trips were a pure fact of their consensual relationship and thus other offences of stalking and criminal intimidation can also not be made out.
The applicant had also facilitated the prosecutrix/her family to buy a property in Wazirabad and helped them to shift. He later bought the property from the mother and let out certain portions to tenants. One of these portions was rented by the prosecutrix and her mother. Due to the reason that the applicant asked them via a legal notice to vacate, the FIR was a direct counter-blast of the eviction.
The court, however, did not wish to delve any further into the factual controversies or merits of the allegations and counter-allegations in the present proceedings.
Non-Bailable Warrant Issue:
The applicant was never arrested even after filing the charge-sheet and thorough investigation. According to the investigating officer, the applicant had failed to appear before the Sessions Court due to which his bail application was rejected and non-bailable warrants were issued. However, the reason that the NBW’s were not acted upon was that the applicant had not been traceable. New NBWs have also been issued by the lower court, which are returnable by 26/2/21.
The prayer before the court was only for bail and no mention of NBWs was made. The court thus had to address the issue if bail can be granted when NBWs are issued against a person. However, nothing was barring the court from granting bail even when NBWs have been issued.
Decision:
Looking at the facts of the case, the Hon’ble Justice Anup Jairam Bhambhani allowed bail to the applicant with necessary precautions. Reasons Stated were as follows:
According to her own statement that there wasa relationship between the parties and they even travelled together. Even her parents had agreed for their marriage.
The issue of property seems to have become that of civil nature due to legal notices having been issued by the applicant.
FIR is been registered alleging various episodes of sexual assault from 2013-19, however, had been only filed 1.5 years later.
The applicant had not been arrested even after filing charge-sheet and proceeding investigation.
Story by Sai Kulkarni-Intern
