Bail Appl. No.1317/2012 Page 1 of 15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPL. NO.1317/2012
Date of Decision: 29.11.2012
JAGDISH NAUTIYAL …… Petitioner
Through : Mr. K.K. Sud, Sr.
Advocate with Mr. Jayant
K. Sud, Mr. Vishal Dabas, Mr. Ujas
Kumar and Mr. Chirag Khurana,
Advocates.
Versus
STATE …… Respondent
Through: Mr. Sunil Sharma, APP
CORAM:
HON’BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. (Oral)
1. This is a petition for grant of anticipatory bail in respect
of FIR no.67/2011, u/S 376/420/495 IPC registered by
PS Crime Against Women Cell, Nanakpura.
2. Briefly stated the facts of the prosecution case are that
on 15.9.2010, the complainant one Geeta, a permanent
resident of Dehradun filed a complaint in Crime Against
Women Cell, Nanakpura, New Delhi against the present Bail Appl. No.1317/2012 Page 2 of 15
petitioner/Jagdish Nautiyal working as a Private
Secretary in the National Human Rights Commission. In
the said complaint, the complainant levelled allegations
that she was married to one Sushil Kumar in the year
1994 and from the said wedlock, she was blessed with a
daughter, who was born in December, 1995.
Unfortunately, the husband of the complainant Sushil
Kumar expired because of heart attack on 22.3.2010.
The present petitioner was on friendly terms with the
deceased husband of the complainant and he started
visiting the complainant. The present petitioner is
alleged to have made a proposal of marriage to the
complainant and stated that he was unmarried and he
would take care of the complainant as well as her
daughter. Believing the representation of the present
petitioner, the complainant is stated to have contracted
the marriage on 10.5.2010 in Buddhist Temple, Mandir
Marg, New Delhi near Birla Mandir as per Hindu Law.
Photographs and necessary documentations in this Bail Appl. No.1317/2012 Page 3 of 15
regard were completed. After the marriage on 10.5.2010,
the petitioner applied for registration of the marriage on
17.5.2011 in the Marriage Registration Office, Dehradun
whereupon, he filled up the requisite forms in his own
handwriting and showed his status as unmarried. It is
alleged by the complainant that after the marriage, the
petitioner cohabited with the complainant. It is stated in
the complaint that on 4.6.2010, the complainant learnt
that the present petitioner was already married to one
Sunita and was living with her at the address mentioned
in the Memo of Parties. It is also stated by her that the
petitioner was having two children from the said
marriage. Because of these revelations, the complainant
confronted the petitioner, whereupon, the petitioner is
stated to have started abusing, misbehaving, threatening
the complainant to teach her a lesson. This resulted in
strained relationship between the present petitioner and
the complainant whereupon the present complaint was
filed by the complainant alleging that she had been Bail Appl. No.1317/2012 Page 4 of 15
s*xually exploited and her life has been spoiled by the
present petitioner by obtaining her consent for marriage
by misrepresentation. On the basis of the aforesaid
allegations, a case of rape, cheating and bigamy was
registered against the present petitioner.
3. The petitioner had earlier filed an application for grant of
anticipatory bail in the Court of Sessions which was
decided by the learned Sessions Judge on 29.8.12
holding that the allegations against the present petitioner
are serious and it is not a fit case for grant of
anticipatory bail.
4. Feeling aggrieved, the present petition for grant of
anticipatory bail has been filed in the High Court.
5. I have heard Mr.Sud, the learned senior counsel for the
petitioner as well as the learned APP. The private
counsel representing the complainant had also assisted
the learned APP.
6. The main contention of the learned senior counsel is that
the petitioner has been falsely implicated in the instant Bail Appl. No.1317/2012 Page 5 of 15
case. It is stated that the petitioner and his wife were
the Members of a Yoga club where the complainant also
used to visit and she was aware of the fact that the
petitioner is a married person. It is denied by him that
the petitioner had contracted a marriage with the
complainant. It is stated by him that it was only a
friendly relationship between the petitioner and the
complainant. It is also stated by him that in a Buddhist
Mandir, no Hindu marriages can be contracted because
no formalities are required to be carried out as is
required to be done in an Arya Samaj Temple.
7. It is contended that the alleged incident is purported to
have taken place on 17.9.2010 while as, the present FIR
has been lodged on 15.9.2011 that is after more than a
year. It is contended in the status report filed before this
Court that the police has already seized the documents
required for the purpose of investigation, therefore, no
further custodial interrogation is required to be done. It
has also been submitted by him that the status report Bail Appl. No.1317/2012 Page 6 of 15
filed by the police shows that there were certain
conversations going on between the petitioner and the
complainant on certain specified telephone numbers. In
order to show that the petitioner was not responsible for
making calls, the learned senior counsel has contended
that during the period from 01.5.2010 to 11.5.2010, the
complainant had made 165 calls to the petitioner and his
relations, the details of which have been furnished by
him by way of an affidavit which will clearly show that it
was the complainant who had been ringing up the
petitioner on various numbers. It is further stated by
him that the petitioner is prepared to join the
investigation. It has also been stated that the petitioner
has roots in the society and he is not going to run away
from the processes of law and no useful purpose would
be served by simply denying him the benefit of grant of
anticipatory bail.
8. The learned APP has vehemently opposed the application
for grant of anticipatory bail on the ground that the Bail Appl. No.1317/2012 Page 7 of 15
allegations made against the present petitioner are very
serious in nature inasmuch as he has committed fraud
not only qua the complainant but also with his first wife
by concealing the fact that he was already married and
still he contracted the second marriage. It has also been
contended by him that custodial interrogation of the
petitioner is required to recover the telephone
instruments used in the conversations between the
petitioner and the complainant. It has been contended
by him that the consent which is purported to have been
given by the complainant in the present case for the
purpose of contracting marriage with the petitioner is not
consent because it was obtained by misrepresentation
inasmuch as the petitioner had represented himself to be
an unmarried person while as, he was actually a married
person. In this regard, the learned APP has also referred
to a judgment of the Apex Court in case titled Deelip
Singh @ Dilip Kumar Vs. State of Bihar (2005) 1 SCC Bail Appl. No.1317/2012 Page 8 of 15
88 to contend that a consent which is obtained by
misrepresentation is not a consent at all.
9. The learned APP has also contended that the State has
already got non bailable warrants issued against the
petitioner and, therefore, the petitioner does not deserve
to be granted the benefit of anticipatory bail.
10. I have carefully considered the submissions made by the
respective sides.
11. No doubt, the allegations made against the petitioner are
very serious in nature but the severity of the allegations
is not the only consideration which should result in denial
or the grant of bail to the petitioner. The totality of
circumstances deserves to be seen before a person is
granted or denied the anticipatory bail. The Supreme
Court in case titled Siddharam Satlingappa Mhetre
Vs. State of Maharashtra (2011) 1 SCC 694 has laid
down that the Court should be loath to reject the grant of
anticipatory bail inasmuch as it impinges on the personal
liberty of a person. Meaning thereby, unless and until Bail Appl. No.1317/2012 Page 9 of 15
there is an imminent and a great imperative to have a
custodial interrogation of an accused, the anticipatory
bail does not deserve to be denied. In the instant case,
assuming the allegations against the petitioner to be
correct, at best, a case of consent of the complainant for
contracting marriage having been obtained by fraud or
misrepresentation is made out. This fact does not
require any custodial interrogation because the
complainant herself has to testify before the Court as and
when the petitioner is put to trial as to whether her
consent was obtained by misrepresentation or fraud.
12. The contention of the learned APP that the telephone
instruments are required to be recovered also does not
convince me as being a ‘sufficient ground’ for denying
the grant of anticipatory bail to the petitioner. The
recovery of instrument is not an important matter. It is
not denied by either of the parties that conversations by
using certain telephone numbers were made between the
parties. This information has already been made Bail Appl. No.1317/2012 Page 10 of 15
available or got recovered by the respondent from the
service provider. So much so, even the contents of the
conversations which have been exchanged between the
petitioner or his relatives with that of the complainant
has also been recovered, therefore, the recovery of the
instrument or the SIM number is of no consequence in
advancing the case of the prosecution. The custody of
the accused is not required to be granted to the police
only on the whims and fancies of the complainant to
satisfy her ego. In the instant case, the petitioner was
not granted any police protection for the last more than a
year and the police has not been able to arrest him till
date. This clearly shows some kind of complicity on the
part of the police in being loath in arresting the
petitioner.
13. It has been further contended by the learned APP that
the process under Section 82 Cr.P.C. has been issued
against the petitioner inasmuch as he has fled away from Bail Appl. No.1317/2012 Page 11 of 15
the processes of law and, therefore, does not deserve to
be enlarged on bail.
14. I do not agree with this contention of the learned APP
that merely because process under Sections 82 and 83
Cr.P.C. has been issued against the accused that this
should be a sufficient ground for denying the grant of
anticipatory bail if it is otherwise made out. Every
reasonable person who has approached the Court for
grant of anticipatory bail will keep away from the
investigation for sometime so that his bail application
does not become infructuous.
15. In the instant case, the petitioner has been able to make
out a case for grant of anticipatory bail on account of the
fact that no recovery of any article is to be effected
inasmuch as this is a case where all the articles have
been seized by the police as per their status report. The
case of the prosecution is that the consent of the
complainant for the marriage was obtained by
misrepresentation and under the guise of the so-called Bail Appl. No.1317/2012 Page 12 of 15
marriage or promise to marry the complainant was
s*xually abused by the accused. This can be proved by
the complainant by entering into the witness box and it
also does not require any custodial interrogation and
consequent recovery of any object which is involved in
the instant case.
16. There are two more considerations which are being taken
into account for grant of anticipatory bail. Firstly, the
petitioner is admittedly employed in National Human
Rights Commission and has a fixed place of residence
and, therefore, there is no chance of his fleeing away
from the processes of law or in other words, he has
roots in the society.
17. So far as the allegations of the petitioner tampering with
the evidence or threatening the witness are concerned,
no doubt, a generalized statement has been made by the
complainant that she has been threatened by the
petitioner but she has not been able to show to the Court
any cogent and prima facie evidence which would show Bail Appl. No.1317/2012 Page 13 of 15
that she has actually been threatened by the present
petitioner. In any case, this aspect of the matter can be
taken care of by putting a stringent condition on the
petitioner.
18. The learned APP during arguments has placed reliance on
the judgment of the Apex Court in Deelip Singh’s case
(supra). I have considered the said judgment. No doubt,
the said judgment deals with the interpretation of the
word ‘consent’ holding that the consent obtained by
force, misrepresentation or fraud, will not be a valid
consent but in any case, the said judgment does not say
that a person who is accused of having committed the
offence of rape does not deserve to be enlarged on bail.
On the contrary, that was a case where the person
concerned was convicted and sentenced by the trial court
as well as by the High Court and he had preferred the
Special leave petition before the Apex Court. Therefore,
the factual matrix of the present case is totally different
from the facts of Deelip Singh’s case. Accordingly, the Bail Appl. No.1317/2012 Page 14 of 15
said judgment is distinguishable. Similarly, in other
judgment the custodial interrogation was required in the
peculiar facts of the case or that a person was declared
proclaimed offender does not ipso facto, imply that in all
cases where a person declared as a proclaimed offender,
the Court may not extend the benefit of anticipatory bail
to him. Both these submissions are turned down.
19. Having regard to the aforesaid facts, I am inclined to
admit the petitioner to the anticipatory bail on his
furnishing a personal bond in the sum of `50,000/- with
one surety of the like amount to the satisfaction of the
IO/SHO/AO, subject to the following conditions:-
(i) That the petitioner shall file an affidavit mentioning
therein all the documents/instruments as are required
by the police for the purpose of investigation have been
either surrendered by him and the petitioner shall make
himself available for the purpose of investigation on
04.12.2012 at 4.00 p.m. in the Crime against Women
Cell and on all other dates as may be fixed by the CWC Bail Appl. No.1317/2012 Page 15 of 15
for investigation;
(ii) He shall not leave the National Capital Region of Delhi
without the permission of the trial court;
(iii) He shall not threaten the complainant and her
daughter by sending persons to the residence of the
complainant to terrorize her as she has testified against
him; and
(iv) He shall not tamper with the evidence.
20. It is made clear that in case these conditions are violated,
the complainant or the prosecutor shall be free to move an
appropriate application for revocation of the grant of bail
to the present petitioner.
21. Subject to the aforesaid conditions, the petition is allowed.
V.K. SHALI, J.
November 29, 2012
RN
