IN THE COURT OF LD. DISTT. & SESSION JUDGE;

(NORTH-WEST) ROHINI COURTS, DELHI.

BAIL APPLICATION NO.    OF 2016.

IN THE MATTER OF:-

__________________________,

Delhi-110086                                                         …Applicant

Versus

________________                                                   ….Respondent

INDEX

Delhi                                                                          Applicant/ Accused   

Dated: - ___________             Through

                                                   ___________________________

                                                                                Advocate

                                                                         Off:_____________________________

                                                              Mob: __________________________

IN THE COURT OF LD. DISTT. & SESSION JUDGE;

(NORTH-WEST) ROHINI COURTS, DELHI.

BAIL APPLICATION NO.    OF 2016.

IN THE MATTER OF:-

__________________

Add:_____________________

,

Delhi-110086                                                      …..Applicant

Versus

_________                                                            ….Respondent

                                                          F.I.R. __________

                                                  U/S 376/328/506 IPC     

                                                  P.S. _____________

ANTICIPATORY BAIL APPLICATION UNDER SECTION 438 OF CR.P.C. ON BEHALF OF APPLICANT NAMELY _______________IN FIR NO.__________ U/S 376/328/506 OF IPC REGISTERED WITH THE POLICE STATION. ______________, DELHI.

MOST RESPECTFULLY SHOWETH:-

1.       That the applicant is peace loving and law abiding citizen of India and residing at the abovementioned address and enjoying the clean antecedent in his life.

2.       That the applicant is innocent and has been falsely implicated in the present case by the police officials of Police Station _________ at the instance of the complainant _______________________ who is the wife of the elder brother of the applicant. The applicant is not involved in any case as alleged by the complainant.

3.       The applicant belongs to respectable family in the society. The complainant is hell bent to humiliate and harass the applicant and has filed a totally false case against the applicant by concocting false and imaginary story. She alleged incident of rape never happened at any point of time.

4.       That the parents of the applicant are carrying on business of wholesale and retail of selling the Lace, Embroidery Butta etc by the name and style of _______________, Delhi wherein the applicant is also working. The applicant used to go daily to business place along with his parents at the said shop except on holiday.

5.       That in fact the complainant is married with the elder brother of the applicant namely ____________ as per the Hindu rites and customs on ____________. That after the marriage, the complainant joined her matrimonial home at __________________, Delhi. The applicant’s family gave her a very warm welcome, love and affection at her matrimonial home. After some days of the marriage, __________ and his parents found that the complainant was totally non-cooperative, arrogant and her behavior towards her husband and other family members was unacceptable.

6.       That at the time of marriage the complainant and her parents told _________ and his parents that the complainant is Xth standard pass. But later on when parental family and matrimonial family of the complainant visited _______________, Rajsthan on ___________ to recite Hanuman Chalisa, ________and his parents came to know that the complainant and her parents were telling a lie that the complainant is Xth standard passed because the complainant could not read and recite the Hanuman Chalisa.

7.       That on 15.04.2016 both the families returned back to their respective homes but since then the complainant deliberately used to pickup quarrel with __________ and his parents without any rhyme and reasons. That the complainant is a lady of quarrelsome nature and of rude behavior and from the very beginning she did not adjust herself in her matrimonial family. The complainant always refused to do household work. The complainant after quarrel said that “I have to go my home and I do not want to live here”.

8.       That the complainant went to her parental home on __________ along with her Mother, Uncle and Brother on her own wishes after quarrel with the brother and parents of the applicant. Thereafter on _________ the complainant came to her matrimonial home along with her both the brothers.

9.       That on ________ on the occasion of Rakshabandhan, the brother of the complainant namely ________ and _______(cousin brother) came to the matrimonial home of the complainant for tying the Rakhi but after some time the complainant was ready to go to her parental home without the consent of her in-laws. The parents and brother of the applicant asked the complainant about the reason of leaving the matrimonial home without their consent then the complainant used filthy language and quarreled with them. The mother of the complainant called to the mobile of the mother of the applicant and she used the abusive language and stated that “Ham pure pariwar ko khatam kar denge or pure buddh vihar mein aag laga denge or easa dan-dahej ka case lagayenge ki pura pariwar jivan bhar jail mein sadta rahega”. (we will finish the whole family and put the whole Budh Vihar to fire and implicate him in dowry demand case so that the whole family is put behind the bars for their whole lives).

10.   That on __________ the complainant said to her husband and his mother that earlier her Engagement ceremony took place with a boy namely ________ at _________ (U.P) but later on the marriage ceremony could not take place.  The complainant also stated that “she likes Saurabh now and she did not forget him, she used to talk to him on his phone and he also used to call him. After 3-4 days the complainant also told that she has conversation with the other boy namely _____________ and also stated that she used to talk to both the said boys.

11.   Thereafter the brother of the applicant namely ________ listened to the conversation of the complainant and her parents, sister and brother in the mobile phone, and was surprised to know that they are planning to implicate the family of the ___________ in false and frivolous cases.

12.   That the mother of the complainant told the complainant on the mobile phone that “Naina tu darna mat pure khandan mein aag laga denge. In sabko ghar se bhaga denge or tu rani banker rahegi”. Naina stated that “Mein ghar se bhagkar atamhatya kar lungi ya jahar kha lungior sabhi ko fasa dungi tab tum dekhte rahna ki jindgi bhar tumhe jail se jamanat nahi mil payegi”. The sister of the complainant namely______ and father of the complainant also talked to the complainant on the mobile phone in a rude and harsh manner and they incited the complainant and her father threatened the complainant to kill him. The voice recording of the conversation between the complainant and her family member are annexed herewith for kind perusal of the Hon’ble Court.

13.   Thereafter the brother and mother of the applicant tried to persuade the complainant and her parents by way of telephone personally as well as through ________ but they said that they and their daughter are right and the husband of the complainant and his family member are wrong.

14.  That the husband of the complainant was left with no option and lodged a complaint dated ___________ before SHO ______, Delhi registered vide DD No. _____  and Copy of the same sent to Commissioner of Police (Delhi Police), DCP Outer Distt. Delhi and SHO. PS. Sahibabad Ghaziababd (U.P.) The copy of the said complaint and postal receipts are annexed herewith.

15.  That the brother of the complainant namely________ came to the matrimonial home of the complainant on __________at about 8.00 pm and took away the complainant without the consent of the husband of the complainant. The complainant on __________submitted an information with the police station Vijay Vihar in this regard which was registered vide DD ______ A dated _______ and Copy of the same was sent to Commissioner of Police (Delhi Police), DCP Outer Distt. Delhi and SHO. PS. Sahibabad Ghaziababd (U.P.).  The copy of the said information and postal receipts are annexed herewith.

16.   That the applicant invokes the jurisdiction of this Hon’ble Court Under Section 438 of Cr.P.C. for grant of anticipatory bail on account of false complaint filed by _________________ against the applicant and his parents and on the basis of said false complaint an F.I.R. bearing No. ___________ has been registered against the applicant and his parents. The copy of the FIR is annexed herewith.

17.    That the applicant has been falsely implicated in the above noted case and the allegations made therein are false, fabricated, malafide and unfounded and shall have no legs to stand at the time of trial as the applicant is an innocent person and has not committed any offence whatsoever.

18.   That F.I.R. No. ________ which has been registered on the basis of false compliant filed by complainant is per se illegal, based on false facts. This is evident on reading the FIR as whole. The facts mentioned in the FIR as under;-

A.  Date of FIR                                   ___________

B.  Sections                                       376/328/506 IPC

C.  Occurrence of Offence                  __________

D.  Time of occurrence                      _________________

E.  Information received at the PS      _____________

F.   Contents of FIR;-

i.            __________________________________

G.  Date & time of occurrence            ________at ______ p.m.

H.  Place of occurrence                      ________________-------

I.    Time of sending tehrir                  __________ at _________ p.m.

19.     The applicant is entitled to anticipatory bail inter-alia on the following grounds:-

GROUNDS:-

(a)         That the applicant is a respectable, responsible citizen of the country, enjoying the respect,  goodwill in the society, due to his sincerity, honesty and responsible conduct and behaviour in the society. The applicant is enjoying the clean antecedent in his life and never gave any chance of any complaint to anybody in his life.

(b)         That the applicant is innocent and has been falsely implicated in the present case by the police officials of P.S. ___________ at the instance of the complainant____________. The applicant is not involved in any case.

(c)         That the story of the complainant itself is totally false as on ______________ the applicant was already present at his shop at __________, Delhi from ____________a.m. till _______ p.m. In fact the complainant had come along with her husband _______________ together at the shop at about _________ am and both of them left the shop _______ p.m. Hence, the entire story of the complainant that the applicant raped her at _______ at________________, Delhi is false to the knowledge of the complainant and the applicant has been falsely implication.

(d)         That in fact there are 12 CCTV Cameras installed at the said shop and the CCTV Footage of ______________is available in the instruments/ DVR which can be seen by the Hon’ble Court by giving the direction to the concerned I.O to collect the Hard Disc of the CCTV Cameras. In the said CCTV Footage the complainant is clearly visible that she is sitting in the shop.

(e)         That in fact CCTV Camera No.11 shows the following events;-

i.            Time ______hrs.           Applicant ______ is shown sitting

at the counter and ______ is inside the shop.

ii.          Time 16:00 hrs.          ______is shown with _______.

iii.         Time 16:20 hrs.          ______, _______and ______are seen

together.

iv.         Time 17:00 hrs.          _______is sitting behind parcel.

v.           Time 18:44 hrs.          _______, _______, their mother and

_______ are sitting together.

vi.         Time 19:33 hrs.          All the above four are sitting

together near the cash counter.

(f)          Hence, the aforesaid detail which is caught in the camera makes the written of the complainant as totally false and unbelievable.

(g)         That as a matter of fact, applicant is implicated in the aforesaid case on a concocted story for putting the pressure upon the family of the applicant to cover up the bad character of the complainant. In fact the complainant has affair with two persons namely __________and _____________

(h)         That in fact the complainant married with the brother of the applicant ______________ against her wishes as she wanted to marry either_______________.

(i)          That the story of the complainant itself is falsified that why the complainant remained silent approx. for 6 months from the date of the marriage till__________. There is not a single complaint filed before the police in this regard. In fact nothing has happened as alleged by the complainant at any point of time.

(j)          That the complainant alleged in her complaint/FIR that the complainant was not permitted to go out of the home and talk to her parents. The story of the complainant is totally baseless in this regard that there are so many telephone recordings available with the husband of the complainant which proves that the complainant talked to her mother, father and sister at different time from _________to ________ and told them about the aforesaid two persons namely ________________.

(k)         That even otherwise it is the case of the complainant that she was ill and the applicant gave her medicine. This story of the complainant is baseless and has no legs to stand upon as it can be clearly seen in the CCTV Footage that the complainant is eating the fast food like patties in the shop on_________.

(l)          That from the voice recording it is clear that the complainant used to talk to her mother and sister 4-5 times in a day. The details of conversation are as under;-

Date                Time                Conversation between

________             _______               ______________________

(m)       The truth can came out on considering the voice recording from ________ to _______ and CCTV Footage of ___________ is necessary and also in the interest of justice that the police should seized and verify and the truth will come out.

(n)         That at the time of the alleged incident as per the FIR, the complainant was sitting inside the shop at the cash counter, therefore the story of the complainant is a bundle of lies and nothing else.

(o)         That the investigation of the said case already being over and there being absolutely no chance of the applicant fleeing away from the process of law, the applicant is entitled to bail.

(p)         That the applicant is always available to submit himself to the custody of the Hon’ble Court at any point of time if the Hon’ble Court reached the opinion that the custody of the applicant is necessary.

(q)         That it may not be out of context to point out that the Hon’ble Supreme Court in the matter of Sanjay Chandra Vs. CBI (2012) 1 SCC 40 has again upheld the fundamental principle of criminal jurisprudence “bail and not jail” and has observed that time and again has stated that bail is the rule and committal to jail an exception. It is also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution.

(r)          That, it is the basic criminal jurisprudence that the applicant is considered innocent until held guilty.

(s)         That in the case of State of Rajasthan vs. Balchand, (1977) 4 SCC 308, Hon’ble Supreme Court opined:

“That the basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement n bail from the Court. We do not intend to be exhaustive but only illustrative. It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of justice and must weigh with us when considering the question of jail. So also the heinousness of the crime. Even so, the record of the petitioner in this case is that, while he has been on bail throughout in the trial court and he was released after the judgment of the High Court, there is nothing to suggest that he has abused the trust placed in him by the court; his social circumstances also are not so unfavorable in the sense of his being a desperate character or unsocial element who is likely to betray the confidence that the court may place in him to turn up to take justice at the hands of the court. He is stated to be a young man of 27 years with a family to maintain. The circumstances and the social milieu do not militate against the petitioner being granted bail at this stage. At the same time any possibility of the absconsion or evasion or other abuse can be taken care of by a direction that the petitioner will report himself before the police station at baren once every fortnight.”

(t)          That in the case of Siddharam Satlingoppa Meheto Vs. State of Maharashtra (2011) 1 SCC 694 Hon’ble Court observed that:

“Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case.”

(u)        In Bhadresh Bipinbhai Sheth Vs. State of Gujarat & Anr.;  2015 (8) JT 125, 2015 (9) SCALE 403; The Supreme Court has said that custodial interrogation should be avoided if the accused cooperates in the probe, as "a great ignominy, humiliation and disgrace is attached to arrest".

"In cases where the court is of the considered view that the accused has joined the investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided. A great ignominy, humiliation and disgrace is attached to arrest.

"Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre-conviction stage or post-conviction stage,"

(v)         Because while dealing with anticipatory bail plea, the gravity of charge and the exact role of the accused must be properly comprehended and before arrest, the officer must record valid reasons for the arrest in the case diary.

(w)        Because there is no requirement that the accused must make out a 'special case' for exercise of power to grant anticipatory bail.

(x)         Because a person seeking anticipatory bail is still a free man entitled to the presumption of innocence," it said. The court, however, made it clear that "no inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail because all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail.

(y)         Because while dealing with anticipatory bail, the nature and gravity of the accusation and the exact role of the accused must be properly comprehended before his arrest.

(z)          Because the possibility of the applicant to flee from justice, the possibility of the accused's likelihood to repeat similar or other offences," must also be considered.

(aa)      That on the touch stone of the aforesaid test it would be clear that the applicant / accused is absolutely innocent and not involved at all in any rape on ________ at ________p.m. and hence entitled to anticipatory bail.

(bb)     Because the FIR is preferred belatedly. The alleged incident took place on _______ at ________ p.m. whereas the FIR was registered on ___________ and there is no credible reason given for such delay of eight days.

(cc)      Because the place and time when the offences are alleged to have been committed are improbable on account of the fact that the complainant, her husband, the applicant / accused and his mother are all present at the shop as is clear from the CCTV Camera mentioned above.

(dd)     Because the complainant had various opportunities to complain about the incident, but she does not disclose the incident nor does she make allegations against any of the accused till____________.

(ee)      Because there is total lack of medical evidence to support the allegation of rape.

(ff)         Because there is no evidence in form of any pathological report or serologist's report which may support the case of the complainant about rape.

(gg)      Because the victim had every opportunity to inform about the alleged incident to her husband and others in the family but she did not do so and that by itself shows that it is a false and concocted story.

(hh)     The Supreme Court in Tameezuddin @ Tammu vs. State of (NCT) of Delhi, 2009 (4) JCC 2809, has held as under:

"It is true that in a case of rape, the evidence of prosecutrix must be given predominant consideration but to hold that her evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which governs the appreciation of evidence in a criminal matter."

(ii)         The Supreme Court in Rajoo & Ors. vs. State of M.P., AIR 2009 SC 858, has held that :

"The evidence of the prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as gospel truth. Additionally, her statement can, at best, be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved."

(jj)         As held by the Supreme Court in Mumtaz vs. State (Govt. of NCT of Delhi), 2013 (2) JCC 1308, the court has to discern truth after considering or evaluating the testimony of material prosecution witnesses on the touchstone of basic human conduct, improbabilities and effect of deposition before the Court.

(kk)     In the case at hand, the complainant’s version suffers from acute improbabilities and is highly unbelievable in view of the conduct of the prosecutrix as reflected by her statement recorded in the FIR and CCTV Footage of __________ and voice recording of the mobile from____________.

(ll)         Because the allegations of rape seemed to be highly farfetched, baseless and fabricated.

(mm)  Because the complainant has failed to give any credible, clinching or trustworthy version to prove the involvement of the accused in the rape.

(nn)     Because in determining whether to grant bail, both the seriousness of the charge and the severity of the punishment should be taken into consideration. The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the applicant. The primary purposes of bail in a criminal case are to relieve the applicant of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the applicant constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required.

(oo)      That the applicant is a permanent resident at the above said address Flat No_____, Second Floor, _______________, Delhi-110086 and used to go daily with his parents at the shop situated at____________. The applicant has got clean antecedents and also has got no influence over the prosecution witnesses and there is no likelihood of tempering with the same.

(pp)     That the applicant is ready to furnish the sound surety to the entire satisfaction of this Hon’ble court.

(qq)      That it may be submitted that the applicant has a complete clean record. The applicant has never been convicted in past in any case. It cannot be construed under any circumstances that the applicant has bad record which suggest that he is likely to commit, similar or serious offences while on bail.

(rr)       That the applicant belongs to respectable family in the society. The complainant is hell bent to humiliate and harass the applicant and has filed a totally false complaint against the applicant and his family member on the strength of false story.

(ss)      That applicant has deep roots in the society and commands social respect and the attempt of the complainant is to disgrace by arresting the applicant.

(tt)        That the necessity for granting anticipatory bail in this case arises mainly because the said FIR is lodged on the strength of false story.  The applicant has been implicated in a false case for the purpose of disgracing him and for getting him detained in jail for some days as a pressure tactic to yield to their illegal demands from the family of the complainant. There seems no justification to require the applicant first to submit to custody, remain in prison for some days and then apply for bail because there is absolutely no ground for assuming or presuming that the applicant will either abscond, misuse his liberty or temper with the evidence after granting the bail.

(uu)     That in the above facts and circumstances there is absolutely no need for the I.O. to arrest the applicant and this Hon’ble Court must protect the applicant to save him from unnecessary humiliation in the eyes of his near and dear ones and even in the eyes of public at large as the applicant holds a respectable position in the society. The applicant is permanent resident of Delhi since childhood. It is not only the applicant, but his family members who will suffer if the applicant detain in the jail for no fault of the applicant.

(vv)      That the Hon’ble supreme court in “Narinderjit Singh Sahni Vs. Union of India” (2002 (2) SCC 210 restated the object of section 438 Cr.P.C. as the object being to relieve a person form unnecessary harassment or disgrace and it is granted when the court is otherwise convinced that there is no likelihood of misuse of liberty granted since he would neither abscond nor take such step so as to avoid due process of law.

(ww)    That the Constitution Bench Judgment of Hon’ble Supreme Court of India in the case of Gurbaksh Singh Sibbia and Others vs. State of Punjab has held that:

“The provision of anticipatory bail enshrined in Section 438 of the Code is conceptualized under Article 21 of the Constitution which relates to personal liberty. Therefore, such a provision calls for liberal interpretation of Section 438 of the Code in light of Article 21 of the Constitution. The Code explains that an anticipatory bail is a pre-arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail. The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore, effective at the very moment of arrest. A direction under Section 438 is therefore intended to confer conditional immunity from the 'touch' or confinement contemplated by Section 46 of the Code. The essence of this provision is brought out in the following manner:

“26. We find a great deal of substance in Mr Tarkunde’s submission that since denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when no such restrictions have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An over-generous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficent provision contained in Section 438 must be saved, not jettisoned. No doubt can linger after the decision in Maneka Gandhi v. Union of India, (1978) 1 SCC 248, that in order to meet the challenge of Article 21 of the Constitution, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. Section 438, in the form in which it is conceived by the legislature, is open to no exception on the ground that it prescribes a procedure which is unjust or unfair. We ought, at all costs, to avoid throwing it open to a Constitutional challenge by reading words in it which are not to be found therein.”

(xx)      That there is no evidence whatsoever against the applicant. That as a matter of fact, applicant is implicated in the aforesaid case on a concocted and false story.

(yy)      That the applicant has not committed any offence as alleged by the complainant/prosecution.

(zz)       That the falsity of the present case is apparent from the bare perusal of contents of F.I.R.

(aaa)   That the applicant undertakes that he shall regularly join the investigation in present F.I.R. whenever and wherever the concerned I.O. called the applicant.

(bbb)  That the applicant will never misuse the bail in future and not tamper with the evidence of the aforesaid case during trial.

(ccc)    That the applicant is permanent resident of above mentioned address and there is no chance of her absconding and fleeing from justice.

(ddd)  That the applicant undertakes to furnish sound surety to the satisfaction of this Hon’ble Court.

(eee)    That the applicant undertakes to abide by all terms and conditions, if any, imposed by this Hon’ble Court while granting the bail to him.

(fff)       That the applicant craves leave of this Hon’ble Court to raise any other or further ground at the time of hearing of the bail application.

PRAYER:-

It is therefore, most respectfully prayed that this Hon’ble Court may kindly be granted anticipatory bail to the applicant, in the interest of justice.

DELHI                                            APPLICANT/ACCUSED

DATED: - _________________            THROUGH

                                                   __________________________

                                                                                Advocate