In BAIL APPLN. 1647/2022-DELH HC- Provisions of Sec.438 CrPC have their genesis in Article 21 of Constitution, observes Delhi HC while granting anticipatory bail to practicing Advocate in alleged case of sexual assault where FIR was lodged after 3 years Justice Swarana Kanta Sharma [26-05-2022]

Read Order: NIZAMUDDIN KHAN Vs. THE STATE & ANR 

LE Correspondent

New  Delhi, June 1, 2022: Reaffirming the cardinal principle of criminal jurisprudence that a man is presumed to be innocent till proven guilty, the Delhi High Court has granted anticipatory bail to an advocate in an alleged case of sexual assault and discussed the ambit of anticipatory bail as enumerated in detail by the judgment of the Apex Court  in Siddharam Satlingappa Mhetre vs. State of Maharashtra and Ors.

Observing that matters regarding liberty of a person have to be dealt with cautiously and a balance has to be struck between respect for his fundamental rights and free and fair investigation, the Bench of Justice Swarna Kanta Sharma said, “ It is not the case of the prosecution that there is probability of petitioner not joining the investigation and therefore, as per the mandate of the Hon’ble Supreme Court in various cases, it is clear that the provisions of Section 438 CrPC have their genesis in Article 21 of the Constitution of India, which deals with liberty of an individual.”

The factual matrix of this case was such that the complainant, who is the real sister of the petitioner, had lodged a complaint and an FIR under Sections 376D/506/34 IPC was lodged in April, 2022 i.e. after about three years of the alleged incident. The incident in question allegedly took place in 2019. This case involved sexual assault of the real sister by two brothers and also involvement of the wife of the present applicant/petitioner who had allegedly stood guard outside the room where the alleged incident had taken place. This application under Section 438 of the CrPC was on behalf of the petitioner seeking anticipatory bail.

The Court’s attention was brought to the statement recorded under Section 164 Cr.P.C. wherein it was mentioned by the complainant that the video of the incident in question had been made and she had been threatened that in case she would disclose it, the video would be made public.But, the Bench noted that in the FIR the complainant had not made any mention of such video recording of the sexual assault. 

The Bench clarified that it is not merely the seriousness of the allegations levelled but also the facts and circumstances of the case that need to be examined, as to whether in case the accused is released on bail, he would flee from justice or not and if he would cooperate in the investigation or would attempt to influence the witnesses or tamper with evidence, and if he would participate as and when the trial commences.

Thus, the High Court directed that in the event of arrest, the petitioner be released on his furnishing personal bond in the sum of Rs  50,000 with a surety of like amount to the satisfaction of IO/SHO concerned and also imposed various directions.