In the fitness of things, it is most gratifying to learn that the Delhi High Court has in a learned, laudable, landmark and latest judgment titled Radhye Shyam vs State in Bail Appln. 2475/2021 delivered as recently as on November 16, 2021 has been quite vocal in holding that the arrest of a person based on mere allegations has the potential to destroy his reputation and thus it is necessary to apply great care while dealing with arrest at pre-conviction stage.
It deserves mentioning that Justice Subramonium Prasad observed so most sagaciously while granting anticipatory bail to one Radhye Shyam in an FIR filed by a woman working in the HR department of his company alleging that he induced and pressurize her and other female employees to have physical relations with him. It merits mentioning that the Court observed that the question as to whether or not the sexual intercourse which took place between Shyam and the Complainant was consensual in nature or not is to be dealt with at the trial.
To start with, the ball is set rolling in para 1 of this notable judgment authored by a single Judge Bench of Justice Subramonium Prasad wherein it is put forth that:
This petition under Section 438 Cr.P.C has been filed for grant of bail to the petitioner in the event of arrest in FIR No. 235/2021 dated 25.05.2021, registered at Police Station Janak Puri for offences under Sections 376 IPC.
To put things in perspective, the Bench then envisages in para 2 that:
The factual matrix which has transpired in this case is as under:
- It is stated that the complainant was working in the Human Resource Department at the company of the Petitioner, M/s Dabas Securities and Allied Services. It is stated that the Petitioner would induce and pressurize female employees of his company to have physical relations with him. The complainant/prosecutrix states that she joined the company of the Petitioner during the Covid-19 lockdown, in June 2020, and the Petitioner in November 2020 allured her to meet him at a hotel and had forceful sexual intercourse with her. It is stated that the Petitioner forcefully raped the complainant at Holiday Inn in Agra on 30.12.2020. The FIR states that in January 2021, Petitioner again coaxed her to meet him at a hotel room and the same was refused by the complainant. The Petitioner herein without any notice or reason, fired the complainant from her job in the company.
- However, the complainant rejoined the job after talking to the reporting manager, who informed the complainant about how she had been harassed in the same manner by the Petitioner. The FIR further states that after rejoining the company, she was promoted and her work had increased, consequently raising her salary. It is stated that another employee who had joined as receptionist also was dragooned into having physical relations with the Petitioner, and the complainant due to imposition by the Petitioner, succumbed under pressure after repeatedly airing her discomfort in the workplace. It is stated that the complainant recounted this incident to one of her colleagues and friend, one Rajiv Jha, who told the Petitioner, on a phone call, to desist from exploiting his employees through allurement. She further states that due to this call made by her friend, he filed an FIR against the complainant's friend for criminal intimidation.
- Investigation is still ongoing in the instant matter and Chargesheet is yet to be filed with the Sessions Court. The statement of the victim under Section 164 of the Code of Criminal Procedure has been recorded by the Ld. Magistrate Dwarka Court on 27.05.2021. The statement of Ms. R.S., a former employee at the company of the Petitioner was recorded telephonically under Section 161 Cr.P.C. The statement of another employee - VB, was recorded by the I.O. telephonically on 30.05.2021. The telephonic conversations of the Petitioner and the complainant during her tenure of employment in Petitioner's company have been transcribed and attached on the record.
- The Ld. Sessions Court, Dwarka, Delhi dismissed the Petitioner's plea for anticipatory bail vide order dated 01.07.2021. The Ld. Court reasoned that the contents of FIR are supported by the Section 164 statement of the prosecutrix complainant. Secondly, the Court relied upon two conversations presented before that Court by the I.O. wherein the Petitioner had approached other lady employees of his company for sexual favors.
The order also records that these statements were later retracted by both the employees in question on 02.06.2021. Further, the Ld. Court relied upon the transcriptions of conversations exchanged between the Petitioner and Complainant, and opined that the Petitioner was in a position of authority as the employer of the complainant and abused his superior position to forcefully subjugate the complainant to enter into an involuntary sexual relationship during the course of her employment, despite the resistance shown by the complainant. Further, on refusal shown by the complainant to have intercourse with the Petitioner, in January 2021, he fired her from the job and asked her to look for employment elsewhere.
Needless to say, the Bench then observes in para 11 that:
I have perused the case file, materials placed in the sealed cover and the annexure containing transcribed version of the telephone calls made between the Petitioner to the complainant.
While citing the relevant case law, the Bench then points out in para 12 that, Law relating to grant of anticipatory bail has been succinctly laid down by the Supreme Court in Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694, wherein it has observed as under:
85. It is a matter of common knowledge that a large number of undertrials are languishing in jail for a long time even for allegedly committing very minor offences. This is because Section 438 CrPC has not been allowed its full play. The Constitution Bench in Sibbia case [(1980) 2 SCC 565 : 1980 SCC (Cri) 465] clearly mentioned that Section 438 CrPC is extraordinary because it was incorporated in the Code of Criminal Procedure, 1973 and before that other provisions for grant of bail were Sections 437 and 439 CrPC. It is not extraordinary in the sense that it should be invoked only in exceptional or rare cases. Some Courts of smaller strength have erroneously observed that Section 438 CrPC should be invoked only in exceptional or rare cases. Those orders are contrary to the law laid down by the judgment of the Constitution Bench in Sibbia case [(1980) 2 SCC 565 : 1980 SCC (Cri) 465] .
88. The gravity of charge and the exact role of the accused must be properly comprehended. Before arrest, the arresting officer must record the valid reasons which have led to the arrest of the accused in the case diary. In exceptional cases the reasons could be recorded immediately after the arrest, so that while dealing with the bail application, the remarks and observations of the arresting officer can also be properly evaluated by the court.
89. It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion must be exercised on the basis of the available material and the facts of the particular case. In cases where the court is of the considered view that the accused has joined investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided.
90. A great ignominy, humiliation and disgrace is attached to the 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.
Most significantly, what forms the cornerstone of this extremely commendable, cogent, composed and convincing judgment is then laid bare in para 13 wherein it is postulated that:
Whether or not the sexual intercourse which took place between the Petitioner and the Complainant was consensual in nature is to be dealt with during the course of the trial and this Court refrains itself from commenting on the merits of the same. However, this Court finds it pertinent to note that consequent arrest of an individual on the basis of mere allegations has the potential to destroy the reputation of the said individual. Therefore, it is necessary to apply great care and circumspection while dealing with arrest at a pre-conviction stage.
Be it noted, the Bench then stipulates in para 14 that:
With regard to grant of anticipatory bail, it is to be analyzed whether the Petitioner is in the position of tampering with evidence or influencing the witnesses. In the instant case, the Trial Court vide order dated 01.07.2021 had dismissed the anticipatory bail application of the petitioner herein on the ground that the petitioner was in a position of authority and he could exert dominance over the complainant as well as over other employees who were witnesses in this matter. However, it is to be noted that two witnesses who were the employees, have now left the company and, therefore, it can safely be said that the petitioner is no longer in a position to influence them. Further, mere apprehension of tampering with evidence or influencing the witnesses cannot be a ground for rejecting an application for anticipatory bail.
As a corollary, the Bench then holds in para 15 that:
For the above said reasons, this Court is inclined to grant bail to the Petitioner in the event of arrest on the following conditions:
- The Petitioner shall furnish a personal bond in the sum of Rs 50,000/- with two sureties of the like amount, one of them should be a relative of the petitioner, to the satisfaction of the Trial Court/Duty Magistrate.
- The petitioner is directed to surrender his Passport with the Trial Court.
- It is mentioned in the Memo of Parties that the petitioner is a resident of RZ-H-705/1, Gali No.1, Raj Nagar - 2, Dabri, New Delhi. The petitioner is directed to reside at the same address and if there is any change in the address, he is directed to intimate the same to the Investigating Officer.
- The Petitioner shall visit the concerned Police Station three times a week i.e. on every Monday, Wednesday and Friday at 10:30 AM and be relieved by the I.O. by 12:00 PM after recording the presence in the daily register.
- The Magistrate shall verify whether the Petitioner has a revolver/fire-arms, if yes then the Petitioner then would have to surrender the fire-arms and its license before the Magistrate.
- The Petitioner shall be available to join the investigation as and when required by the I.O.
- The Petitioner should attend all the proceedings of the Trial through VC or physically.
- The Petitioner should not contact the complainant or her family or tamper with any witnesses. In case Petitioner attempts to contact any witness, his protection shall stands forfeited forthwith.
For the purpose of clarity, the Bench then observes in para 17 that:
It is made clear that the observations made in this order are only for the purpose of grant of bail and cannot be taken into consideration during the trial.
Finally, the Bench then concludes by holding in para 18 that:
Accordingly, the bail application is disposed of along with the pending application(s), if any.
In summary, the single Judge Bench comprising of Justice Subramonium Prasad of the Delhi High Court while according paramount importance to the reputation of an individual minces no words to hold unequivocally that arrest on mere allegations has the potential to destroy the reputation of an individual and so it is necessary to apply great care at pre-conviction stage. All the Judges must always adhere to what Justice Subramonium Prasad has held so rightly in this notable case so outrightly! It goes without saying that no individual should be made to suffer hugely on mere allegations only and in such cases bail should be granted generally.
All in all, great care must be taken in the pre-conviction stage and benefit of doubt must definitely go to the accused against whom just allegations are made but there is no proof to back it up! This is exactly what forms the touchstone also of our criminal jurisprudence system. It must certainly be implemented also in totality!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh
