Accused will not be kept in custody merely because the complainant was allegedly getting threatening calls from him: High Court of Delhi

 IN THE HIGH COURT OF DELHI AT NEW DELHI BAIL APPLN.1520 2021 Date of decision: 22nd JULY 2021 IN THE MATTER OF: NIKHIL BHATTAL THE STATE ..... Petitioner Through Mr. Viraj Datar Senior Advocate with Mr. Krishanu Adhikary ..... Respondent Through Ms. Kusum Dhalla APP for the State Mr. Rahul Chandlok Advocate for the complainant. HON BLE MR. JUSTICE SUBRAMONIUM PRASAD SUBRAMONIUM PRASAD J. This petition filed under Section 439 Cr.P.C. is for grant of regular bail to the petitioner in FIR No.118 2021 dated 10.04.2021 registered at Police Station South Rohini for offences punishable under Sections 328 389 and 34 IPC. The brief facts leading to this bail application are as follows: a) A complaint was filed by one Rishab Jain stating that has a business of marble and tiles and he runs a Shop at B 81 Marble market Mangolpur Kalan opposite Indian Bank New Delhi. He stated that the petitioner herein came to his shop and asked for some good quality marble stones tiles for renovation of his residence and he insisted that the complainant must visit his house. It is stated that when the complainant visited the house of the BAIL APPLN. 1520 2021 petitioner. The petitioner the complainant to his girlfriend lshu @ Bobby who lives with the petitioner. It is stated that the said Ishu @ Bobby offered soft drink to the complainant. It is stated that after consuming the drink the complainant started feeling dizzy. It is stated that the petitioner asked the complainant to take rest and he left the room. It is stated that after the petitioner left the room the said Ishu @ Bobby came close to the complainant and started rubbing his head and thereafter the complainant became unconscious. It is stated that when the complainant regained consciousness he was shocked to see that Ishu @ Bobby was rubbing his private part. It is stated that the complainant went outside the room and when the petitioner came back the complainant narrated the incident to him. It is stated that the petitioner got furious and broke the phone of his girlfriend. It is stated in the complaint that the petitioner started demanding a mobile phone a TV and Rs.2 00 000 in cash from the complainant and threatened him that if his demands are not met his girlfriend would file a case of rape against the complainant. It is stated that after the incident the petitioner called the complainant for money more than 25 times. The complainant also produced various voice recordings in which the petitioner and his girlfriend are demanding money from the complainant and threatening him that if their demands are not met a case of rape would be filed against the complainant. On the complaint FIR No.118 2021 dated 10.04.2021 was registered at Police Station South Rohini for offences punishable under Sections 328 389 and 34 IPC. BAIL APPLN. 1520 2021 It is pertinent to mention here that the petitioner and his girlfriend Ishu @ Bobby also filed a complaint against the complainant herein being FIR No.119 2021 dated 10.04.2021 for offences under sections 376 506 IPC. c) The petitioner was arrested on 11.04.2021. d) The petitioner filed an application for bail being Bail application No.1280 2021 before the learned Sessions Judge North West District Rohini Courts which was rejected vide order dated e) A second application for bail was filed by the petitioner on 23.04.2021 which was rejected by the learned Sessions Judge North West District Rohini Courts vide order dated 28.04.2021 on the ground that the investigation of the case is at a nascent stage and the possibility of the petitioner threatening the complainant cannot be f) The petitioner has thereafter approached this Court by filing ruled out. the instant bail application. Notice was issued on 10.05.2021. Status Report has been filed. The Status Report indicates that the voice sample of the petitioner was obtained after taking the permission of the Court and the same has been sent to Forensic Science Laboratory. The Status Report also indicates that opinion regarding intoxication of the complainant was obtained from the Medical Superintendent of Bhagawan Mahavir Hospital by giving a notice under Section 91 Cr.P.C. During the Course of hearing on 14.07.2021 Ms. Kusum Dhalla learned APP states that the charge sheet has been filed. BAIL APPLN. 1520 2021 Heard Mr. Viraj Datar learned Senior Counsel for the petitioner Mr. Rahul Chandlok learned counsel for the complainant and Ms. Kusum Dhalla learned APP for the State and perused the material on record. 6. Mr. Viraj Datar learned Senior Counsel appearing for the petitioner states that the petitioner is in custody since 11.04.2021. He states that since the charge sheet has been filed therefore there is no necessity of keeping the petitioner in custody and the petitioner be released on bail. Per contra Mr. Rahul Chandlok learned counsel for the complainant submits that the complainant has been receiving threatening phone calls. He further states that the co accused is still at large and therefore bail ought not be granted to the petitioner. 8. Ms. Kusum Dhalla learned APP for the State also opposes the bail by stating that the co accused is still at large. The petitioner is accused of offences punishable under Sections 328 389 and 34 IPC. An offence under Section 389 IPC is a bailable offence. The Status Report reveals that the voice sample of the petitioner has been sent to the Forensic Science Laboratory. The Status Report also indicates that opinion regarding intoxication of the complainant was obtained from the Medical Superintendent of Bhagawan Mahavir Hospital where the complainant was admitted on 04.04.2021 by giving a notice under Section 91 Cr.P.C. There is nothing more required to be recovered from the petitioner. Just because the complainant is alleging that he is getting threatening calls it will not be appropriate to keep the accused in custody and the Court can lay down conditions to ensure that the complainant is not harassed. There is nothing to show that till the co accused is not arrested the petitioner has to be kept in custody. In view of the above this Court is BAIL APPLN. 1520 2021 inclined to grant bail to the petitioner on the following conditions: a) The petitioner shall furnish a personal bond in the sum of ₹1 00 000 with one surety of the like amount who should be a relative of the petitioner to the satisfaction of the Trial Court. b) The complainant is a resident of C 57 Ahinsa Vihar Secor 9 Rohini New Delhi and the petitioner resides at House No. A 31 2nd Floor Pocket 0 Sector 2 Rohini North West Delhi 110085. The petitioner is directed not to enter Sector 09 Rohini till the c) The petitioner shall not leave NCT of Delhi without prior examination of the complainant. permission of this Court. d) The petitioner shall report to the concerned Police Station every alternate day at 10:30 AM and should be released after completing the formalities within half an hour. e) The petitioner is directed to give all his mobile numbers to the Investigating Officer and keep them operational at all times. f) The petitioner has given his address in the memo of parties and shall continue to reside in the same address. In case there is any change in the address the petitioner is directed to intimate the same to the IO. g) The petitioner shall not directly or indirectly tamper with evidence or try to influence the witnesses. h) Violation of any of these conditions will result in the cancellation of the bail given to the petitioner. It is made clear and needless to state that the observations made in this order are only for the purpose of grant of bail and cannot be taken into BAIL APPLN. 1520 2021 JULY 22 2021 11. Accordingly the bail application is disposed of along with the consideration in the trial. pending applications if any. SUBRAMONIUM PRASAD J. BAIL APPLN. 1520 2021 

Summary: Having made threatening phone calls to the complainant or a co-accused person absconding are not valid grounds to deny bail to an accused person whose offence is bailable. This was held by a single member bench of the High Court of Delhi consisting of Justice Subramonium Prasad in the case of Nikhil Bhattal v The State [Bail Application. 1520/2021] on 22nd July 2021. The complaint was filed by Rishab Jain who owns a marble and tiles business in New Delhi. The petitioner, Nikhil Bhattal placed an order with the complainant for tiles to renovate his house and insisted that the complainant visit the house to determine the specifics. Upon visiting the petitioner’s house, the petitioner’s girlfriend Ishu offered the complainant soft drink which made him dizzy and lead to him passing out soon after. As the complainant was slowly regaining consciousness, he was shocked to see Ishu rubbing his private parts. The complainant left the room he woke up in and narrated the incident to the petitioner who made a show of rage and anger. It is alleged that the petitioner started demanding a mobile phone, a television set and Rs. 2 lakhs from the complainant and threatened that if these demands were not met, he would file a rape charge against the complainant. The petitioner and his girlfriend allegedly called the petitioner over 25 times to threaten him and the complainant also produced various voice recordings of their demands. An FIR was filed by the complainant on 10th April 2021 at South Rohini Police Station under Sections 328, 389 and 34 of the Indian Penal code for poisoning and for putting person in fear of accusation with the intention of extortion. The petitioner was arrested on 11th April 2021 but his girlfriend who is a co-accused is still absconding. The petitioner filed this petition before the High Court of Delhi under Section 439 of Cr.P.C. for grant of bail. The medical report indicated that the complainant had been intoxicated, however without delving into the merits of the case, it was established that the offences which the petitioner was accused of were bailable in nature. The petitioner also contended that he had been in custofy since 11th April 2021 despite not being convicted. However the counsel appearing for the complainant contended that the complainant was receiving threatening phone calls and that releasing the petitioner would compromise on the complainant’s safety.