Shamim Ahmed vs State

Delhi High Court

$~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. Paritosh, Advocate versus STATE .....
Respondent Through: Mr. Mukesh Kumar, APP with Inspector Rajnikant, PS:K. Khas, Delhi CORAM:
HON'BLE MR. JUSTICE CHANDER SHEKHAR CHANDER SHEKHAR, J. (ORAL)

1. This is an application filed by the petitioner under Section 438 of the Code of Criminal Procedure, 1973
(Cr.P.C.) for the grant of anticipatory bail in case FIR No.603/2018 under Sections 363/365/366A/376-
D/342 of the Indian Penal Code, 1860 and Section 6 of the Protection of Children from Sexual Offences
Act, 2012 (POCSO 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.
Rekha 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 BAIL APPLN. 1845/2019 Page 1 of 8 supplementary statement under Section 164 Cr.P.C., the
complainant/mother of the victim alleged that she suspects that one Usman 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 Usman are also involved in this kidnapping, to which search was carried out at the home of
Usman 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 164 Cr.PC 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 161 Cr.P.C. that, on 30.11.2018, one Usman
enticed her and took her away in a cab and they wandered all night. Next day, they met Usman's friend
and brother-in-law- the petitioner herein, namely, Shamim. The petitioner/accused Shamim took them to a
room in Loni, Ghaziabad and there in the room, the friend of Usman (the name of whom the victim doesn't
remember) raped the victim BAIL APPLN. 1845/2019 Page 2 of 8 at gunpoint in the presence of Usman
and the petitioner Shamim. 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

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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 164 of the Cr.P.C, however, in her
supplementary statement under Section 161 of the Cr.P.C., 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 Muniba, the mother of accused
Usman was allowed, which reads as under:

"I have gone through the statement of victim u/s 164 Cr.P.C. 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 Muniba
that she had kidnapped the minor girl.

In view of the same, she is entitled to bail.

Applicant/accused Muniba is admitted to bail in the sum of Rs. 10,000/- with one surety in the
like amount.

Application is disposed off."

BAIL APPLN. 1845/2019 Page 3 of 8

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 BAIL APPLN. 1845/2019 Page 4 of 8

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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 Dr. Subhash Kashinath Mahajan v. State of Maharashtra & Anr., in
Criminal Appeal No.416/2018, 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;

BAIL APPLN. 1845/2019 Page 5 of 8

(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 Sections 34 and 149 of the Penal Code, 1860
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;

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 (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 Lavesh vs. State, (2012) 8 SCC 730, 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 BAIL APPLN. 1845/2019 Page 6 of 8
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 82 of the Code he is not entitled to the relief of anticipatory bail."

13. Similarly, in the case of State of Madhya Pradesh vs. Pradeep Sharma, AIR 2014 SC 626, the Supreme
Court, while reiterating the law laid down in Lavesh vs. State (supra), held that if anyone is declared as an
absconder/proclaimed offender in terms of Section 82 of the Cr.PC, he is not entitled to the relief of
anticipatory bail.

14. In view of the pronouncements of the Supreme Court in Lavesh vs. State (supra) and State of Madhya
Pradesh vs. Pradeep Sharma (supra) as well as the judgment of this Court in Bail Appln. No.306/2016,
Gaurav Bhardwaj vs. State 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 161 of the Cr.P.C., the prosecutrix has specifically alleged that she was raped at gunpoint by a
friend of Usman in the presence of the petitioner.

16. Taking into consideration the nature and the gravity of BAIL APPLN. 1845/2019 Page 7 of 8 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.

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17. Accordingly, the anticipatory bail application is dismissed.

CHANDER SHEKHAR, J DECEMBER 17, 2019 tp BAIL APPLN. 1845/2019 Page 8 of 8

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