Delhi High Court
Sudhir Kumar vs The State Nct Of Delhi on 17 January, 2025
Author: Swarana Kanta Sharma
Bench: Swarana Kanta Sharma
$~87
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 17.01.2025
+ BAIL APPLN. 4091/2024 & CRL.M.A. 33727/2024
SUDHIR KUMAR .....Petitioner
Through: Mr. Sumit Kumar,
Advocate
versus
THE STATE NCT OF DELHI .....Respondent
Through: Mr. Raj Kumar, APP for
the State
CORAM:
HON'BLE MS. JUSTICE SWARANA KANTA SHARMA
JUDGMENT
SWARANA KANTA SHARMA, J. (ORAL)
1. The present application under Section 439 of the Code of
Criminal Procedure, 1973 (hereafter „Cr.P.C.‟)/Section 483 of
Bharatiya Nagarik Suraksha Sanhita, 2023 (hereafter „BNSS‟) has
been filed on behalf of the applicant seeking grant of regular bail in
case arising out of FIR bearing no. 72/2024, for offence punishable
under Section 376/506 of Indian Penal Code, 1860 (hereafter „IPC‟),
registered at Police Station Neb Sarai, Delhi.
2. Briefly stated, the facts of the present case, as evident from the
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complaint filed by the complainant, are that she was living in Delhi
since 2018 with her children, while her husband was working in
Gujarat. She had come in contact with the accused aged about 26
years, through her sister, as he was working in Kuwait with her
sister‟s husband. As alleged, the accused had begun talking to the
complainant over the phone and had subsequently enticed her. He
had given her ₹3.5 lakhs to enroll in the course, which the
complainant had promised to repay after securing a job. Thereafter,
the accused had begun blackmailing her, compelling her to comply
with his sexual demands. The complainant had complied with
whatever the accused used to ask her to do. He allegedly had
instructed her to undress during WhatsApp video calls. She has
further alleged that at the end of 2023, the accused had come to Delhi
had shown her a naked video of hers on his mobile phone, and had
forcibly established physical relations with her for two days under the
threat of making her videos public. He had also made a video of the
complainant in which she was forced to admit having obtained ₹5
lakh from the accused. Later, he had started defaming her by sending
the said videos to people in her native village. Later, he had posted
her inappropriate video on social media platforms such as Facebook,
WhatsApp, and Instagram. On these allegations, the present FIR was
registered on 17.01.2024. The complainant was medically examined
at AIIMS, Delhi and her statement under Section 164 of Cr.P.C. was
recorded. The present accused/applicant was arrested on 20.01.2024.
3. The learned counsel appearing for the accused/applicant argues
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that the allegations leveled by the complainant herein are vague and
false. It is argued that it is a case of a long friendly relationship
between the accused and the complainant, turning sour due to a
dispute over money and, since the complainant was unable to repay
the loan she had obtained from the accused, this false complaint has
been lodged. In this regard, the learned counsel draws this Court‟s
attention to a copy of a loan agreement, claimed to have been entered
into between the accused and the complainant. The learned counsel
further states that the applicant has already remained in jail for about
one year, the FSL report has not yet been obtained and
supplementary chargesheet has not been filed, and the trial is
expected to take time to conclude; therefore, bail be granted to the
accused.
4. The learned APP for the State, on the other hand, draws the
Court‟s attention to the statement of the complainant recorded under
Section 164 of Cr.P.C. It is contended that it is not a case where the
complainant is blackmailing the accused but the accused is
blackmailing the complainant, as he has captured inappropriate
videos of hers. The learned APP further submits that the FSL report
in this case is awaited, and the allegations against the accused are
very serious; therefore, the present bail application ought to be
dismissed.
5. The learned amicus curiae, appearing for the complainant
argues that the complainant had trusted the accused, and that trust
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was exploited by him to create inappropriate videos against her
consent. It is also contended that the accused not only created such
inappropriate videos but also made them public, aggravating the
offence in question. The learned amicus also states that the applicant
had also manipulated and uploaded pictures of the minor daughter of
the prosecutrix on social media/Instagram, further aggravating the
matter. She, therefore, argues that the present bail application should
be rejected.
6. This Court has heard arguments addressed on behalf of both
the parties and has perused the material available on record.
7. As evident from a perusal of the statement recorded under
Section 164 of Cr.P.C as well as the complaint, it has been alleged by
the complainant that she had come in contact with the
accused/applicant, who was living in Kuwait, and both of them had
developed friendship. The friendship was to the extent that the
accused herein had himself given her an amount of ₹3.5 lakhs over a
period of time so that she could pursue a course to become a
beautician. It is to be noted that the accused herein has not alleged
that the complainant had forced him to part with that money or had
taken it through any illegal means.
8. The learned counsel for the accused argued before this Court
that the complainant was in a consensual relationship with the
accused and she had taken loan from him, and since she herself had
entered into a consensual relationship with the accused despite being
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married and having children, she cannot accuse the accused of having
sexually assaulted her. In the bail application also, it has been
repeatedly mentioned that the complainant was working in a massage
parlour. This Court, however, is of the view that the mere fact of the
complainant working in a massage parlour – absent any evidence of
her being engaged in illicit or unlawful activities – cannot be used to
undermine or mitigate the seriousness of the alleged offences
committed against her. In any case, the factum of her working in a
massage parlour was not hidden by her at any point of time and
knowing so, the applicant had befriended her and continued his
relationship with her.
9. Moreover, while on the one hand, it has been averred on behalf
of the accused in the bail application, and also argued before this
Court by the learned counsel, that he was in a friendly and consensual
relationship with the victim, but on the other, he wants to blame the
complainant of having entered into a relationship with him, allegedly
consensual, despite being married – totally forgetting that the
friendship was mutual, and not unilateral. While the accused now
wants to categorize and differentiate this friendship as if imposed on
him by the complainant after filing of the present complaint and
plead innocence, his own pleadings and arguments reflect to the
contrary.
10. Even if the consent for sexual relations had been given at any
point of time by the complainant, such consent cannot, in any
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manner, be construed as consent to capture and post her inappropriate
videos on social media platforms. Consent to engage in physical
relations does not extend to the misuse or exploitation of a person‟s
private moments or their depiction in an inappropriate and derogatory
manner. Thus, even if the first episode of the sexual relationship
between the complainant and the accused herein had been
consensual, the subsequent acts of the accused were clearly rooted in
coercion and blackmail. The complainant alleges that while she had
put her trust in the accused as they had developed friendship with
each other, the accused had started threatening her that in case she
will not show her body parts inappropriately to him during the video
calls, he will commit suicide and put the blame on her. Once the
accused had recorded the complainant’s inappropriate videos without
her consent, these videos became tools of manipulation and control.
The complainant, as per the allegations, was coerced into continuing
the relationship and complying with the accused‟s demands under the
threat of having these videos made public. As alleged, the accused
used such videos to blackmail the complainant into further
compliance, thereby exploiting her vulnerability. Therefore, the
subsequent sexual encounters were no longer consensual but were
carried out under duress, with the complainant being put in fear of
public humiliation and reputational damage.
11. Thus, while the first sexual encounter may have been
consensual, the subsequent ones were allegedly based on blackmail,
with the accused taking advantage of the videos to exert control over
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the complainant. The accused‟s actions in preparing the videos and
using them to manipulate and sexually exploit the complainant
prima-facie reflects a strategy of abuse and exploitation, transcending
any initial consensual interaction.
12. In view of these allegations, it is evident that the accused‟s
conduct transcended the boundaries of a mere friendship. The
relationship between the complainant and the accused cannot be
termed as a “friendship simpliciter” wherein financial assistance was
extended by one friend to another. Instead, it prima facie appears that
the accused had exploited this relationship under the guise of a loan
transaction. A loan arrangement, even between friends, does not
entitle one party to exploit the other‟s vulnerability or dignity.
13. Further, the assertion made in the bail application that the
complainant, “being a married woman, was mature and intelligent
enough to understand the significance and consequences of her
actions” is a specious argument that cannot absolve the accused of
the allegations levelled against him. Admittedly, initially both of
them had become friends, and the complainant had never hidden
from him that she was married and he himself had entered into
friendship and relationship with her, sexual or otherwise, and had
financially helped her. To now unilaterally blame it on the
complainant that since she was already a married woman, it was she
who was on the wrong side of law, will be unacceptable. Thus, in this
Court‟s opinion, the attempt to weaponize the complainant‟s marital
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status and professional background to diminish the gravity of the
allegations is unacceptable.
14. The allegations further assume seriousness when the statement
recorded under Section 164 of Cr.P.C. also records that the applicant
herein, after forcibly on many occasions, sexually assaulting the
complainant by blackmailing her on the strength of inappropriate
videos and photographs, had gone a step further and had even
morphed and used the photograph of the other female family
members of the complainant, including the complainant‟s minor
daughter, aged about 13 years, on social media and had written that
they indulge in sex trade. The complainant had started receiving
unsolicited phone calls from multiple persons as to how much she
will charge for having sex for a night. The alleged use of the
photograph of the complainant‟s daughter by the accused has no
explanation. Admittedly, a pen drive containing such videos and
photographs of the victim as well as the daughter of the victim, which
were uploaded by the accused on social media, were handed over to
the IO, and the same are matter of investigation.
15. Thus, at this stage, considering the aforesaid facts and
circumstances of the case, the gravity and seriousness of the offence,
and in view of the fact that material witnesses are yet to be examined
before the learned Trial Court, this Court does not find it a fit case for
grant of bail.
16. Accordingly, the present bail application stands dismissed
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alongwith pending application.
17. However, the Director, FSL is requested to ensure that the FSL
report in this case is prepared and handed over to the I.O. at the
earliest since the accused is in judicial custody, lest the trial is
delayed due to non-availability of the FSL report. The I.O. of the case
shall ensure that a copy of this order is forwarded to the Director,
FSL.
18. Nothing expressed hereinabove shall tantamount to an
expression of opinion on merits of the case.
19. The judgment be uploaded on the website forthwith.
SWARANA KANTA SHARMA, J
JANUARY 17, 2025/ns
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By:AANCHAL TAGGAR
Signing Date:21.01.2025
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