$~13 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 17th December, 2019 + BAIL APPLN. 1845/2019 SHAMIM AHMED Petitioner Through: Mr. [ENTITY], Advocate versus STATE Respondent Through: Mr. [ENTITY], APP with Inspector [ENTITY] PS:K. Khas, Delhi CORAM: HON'BLE MR. JUSTICE [ENTITY] [ENTITY], J. (ORAL)
1. This is an application filed by the petitioner under [SECTION] of the [ACT] ([ACT] for the grant of anticipatory bail in case FIR No.603/2018 under Sections [SECTION] of the [ACT] and [SECTION] of the [ACT]).
2. It would be quite relevant to go through the facts of the case as per the status report before embarking upon the merits of the present application. The present case was registered on the statement of Smt. [ENTITY] regarding her daughter aged 16 years, who was missing since 30.11.18. After which, the investigation was taken up and several attempts were made to search the missing girl but all in vain. Later, in the supplementary statement under [SECTION] [ACT], the complainant/mother of the victim alleged that she suspects that one [ENTITY] had kidnapped her daughter as he used to stalk her and he is also not at his home. It is further alleged by the complainant that family members of [ENTITY] are also involved in this kidnapping, to which search was carried out at the home of [ENTITY] but he and his family members absconded and avoided their arrest. Later, on 21.12.2018, the missing girl/victim was produced before the Court by the counsellor and thereafter the statement of the victim under [SECTION] [ACT] was recorded, wherein the victim stated that, on 30.11.2018, she went away from her home as her parents wanted her to get married. She slept on the road, sometimes near GTB Hospital and sometimes near AIIMS. She did not want to go back to her home as she was afraid of her family members.
3. During the course of the investigation, no CCTV footage was found in the said hospitals of the date mentioned by the victim in her supplementary statement. Thereafter, on examining the victim, she revealed in her supplementary statement under [SECTION] [ACT] that, on 30.11.2018, one [ENTITY] enticed her and took her away in a cab and they wandered all night. Next day, they met [ENTITY]'s friend and brother-in-law- the petitioner herein, namely, [ENTITY]. The petitioner/accused [ENTITY] took them to a room in Loni, Ghaziabad and there in the room, the friend of [ENTITY] (the name of whom the victim doesn't remember) raped the victim at gunpoint in the presence of [ENTITY] and the petitioner [ENTITY]. Thus, for ascertaining the S.O.C., the victim was taken to Loni, Ghaziabad, but the victim was not able to remember the same. Further, several attempts were made in order to arrest the petitioner, but he avoided his arrest.
4. Learned counsel for the petitioner submitted that the petitioner has been falsely implicated in the present case. Learned counsel for the petitioner further submitted that the name of the petitioner was not mentioned by the prosecutrix in her statement under [SECTION] of the [ACT], however, in her supplementary statement under [SECTION] of the [ACT], she mentioned about the petitioner.
5. Learned counsel for the petitioner has relied upon the order dated 28.12.2018 passed by the learned Metropolitan Magistrate, whereby the bail application of the accused [ENTITY], the mother of accused [ENTITY] was allowed, which reads as under:
"I have gone through the statement of victim u/[SECTION] [ACT] according to which she had gone on her own and no one had kidnapped her.
Perusal of the record shown that there is no evidence as against accused/applicant [ENTITY] that she had kidnapped the minor girl.
In view of the same, she is entitled to bail.
Applicant/accused [ENTITY] is admitted to bail in the sum of Rs. 10,000/- with one surety in the like amount.
Application is disposed off."
6. On the other hand, learned APP, on instructions from the IO, submitted that the petitioner has not joined the investigation. Learned APP further submitted that the custodial interrogation of the petitioner is required and that the petitioner has already been declared a proclaimed offender by the Trial Court.
7. It is also submitted by the learned APP that in view of the gravity of the offence and the severity of punishment in the event of conviction, the bail application may be dismissed.
8. It would be quite relevant to reproduce the order dated 1.5.2019 passed by the learned Additional Sessions Judge, whereby the anticipatory bail application of the petitioner was dismissed as withdrawn, which reads as under:
"This is an application for grant of anticipatory bail to the applicant.
As it is a case of gang rape and the victim being less than 16 years, there is no provision for grant of anticipatory bail in such cases.
At this stage, learned counsel for the applicant wants to withdraw the present bail application. The application at hand is accordingly dismissed as withdrawn."
9. Anticipatory bail may be granted when there is material on record to show that prosecution was inherently doubtful or where there is material on record to show that there is a possibility of false implication. However, when the element of criminality is involved and/or the custodial interrogation is required and/or the other aspects and facts are required to be unfolded in investigation, the applicant is not entitled for anticipatory bail.
10. It is a well-settled law that while considering the question of grant of anticipatory bail, the Court prima facie has also to look into the nature and gravity of the alleged offence and the role of the accused. The Court is also bound down and must look into, while exercising its power to grant bail, the antecedents of the applicant and also the possibility of the applicant fleeing from justice, apart from other factors and parameters in view of the facts of each and every case.
11. The Supreme Court in the matter of [PRECEDENT]., in [CASE NUMBER], decided on 20.3.2018, held as under:
"112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:
(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
(ii) 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;
(vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of [SECTION] and [SECTION] of the [ACT] the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;
(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
(ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
(x) 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."
12. The Supreme Court, in [PRECEDENT], has held that normally, when an accused is declared a proclaimed offender, he should not be granted anticipatory bail. The relevant para of the judgment is reproduced as under:
"12. From these materials and information, it is clear that the present appellant was not available for interrogation and investigation and was declared as "absconder". Normally, when the accused is "absconding" and declared as a "proclaimed offender", there is no question of granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of [SECTION] of the Code he is not entitled to the relief of anticipatory bail."
13. Similarly, in the case of [PRECEDENT], the Supreme Court, while reiterating the law laid down in [PRECEDENT] (supra), held that if anyone is declared as an absconder/proclaimed offender in terms of [SECTION] of the [ACT], he is not entitled to the relief of anticipatory bail.
14. In view of the pronouncements of the Supreme Court in [PRECEDENT] (supra) and [PRECEDENT] (supra) as well as the judgment of this Court in [CASE NUMBER], [PRECEDENT] decided on 14.2.2017, the anticipatory bail application of the petitioner is required to be dismissed.
15. It is an admitted case of the parties that in the supplementary statement of the prosecutrix under [SECTION] of the [ACT], the prosecutrix has specifically alleged that she was raped at gunpoint by a friend of [ENTITY] in the presence of the petitioner.
16. Taking into consideration the nature and the gravity of the offence, severity of punishment and to unearth the conspiracy and the alleged roles of the accused persons in the commission of the offence, the possibility to repeat similar or other offences and impact on the public in case the anticipatory bail is granted to the petitioner as well as the fact that the petitioner has been declared a proclaimed offender, I am of the opinion that the petitioner is not entitled to anticipatory bail. This Court does not find anything on the record to satisfy itself, at this stage, that there are grounds or more to say reasonable grounds for granting anticipatory bail to the petitioner, hence, this Court does not find any merit in the anticipatory bail application of the petitioner.
17. Accordingly, the anticipatory bail application is dismissed.
[ENTITY], J DECEMBER 17, 2019 tp