Delhi High Court – Orders
Manish Tanwar vs The State Govt. Of Nct Of Delhi on 24 December, 2024
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 4803/2024
MANISH TANWAR .....Applicant
Through: Mr. Hari Krishan and Mr.
Prashant Kumar, Advs.
versus
THE STATE GOVT. OF NCT OF DELHI .....Respondent
Through: Mr. Rajkumar, APP for the
State with W/SI Soni Lal,
PS Nabi Karim Delhi.
Mr. Girish Kumar, Adv.
for the complainant /
victim.
CORAM:
HON'BLE MR. JUSTICE AMIT MAHAJAN
ORDER
% 24.12.2024
CRL.M.A. 39155/2024 (exemption from filing certified copies of
annexures)
1. Exemption allowed, subject to all just exceptions.
2. The application stands disposed of.
BAIL APPLN. 4803/2024
3. The present application is filed seeking pre-arrest bail in
FIR No. 454/2024 dated 30.11.2024, registered at Police Station
Nabi Karim, for offences under Sections 74/75/351(3) of the
Bharatiya Nyaya Sanhita, 2023 (‘BNS’) and Section 8 of the
Protection of Children from Sexual Offences Act, 2012
(‘POCSO Act‘).
4. The brief facts of the case as per the allegations are that the
prosecutrix had approached her acquaintance in relation to her
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poor financial condition, who then gave her the contact number
of the applicant. When the prosecutrix called the applicant, he
called her to his residence. On 30.11.2024, at around 9:30AM,
when the prosecutrix reached the residence of the applicant, he
allegedly told her that he will get her a job but asked as to what
she could do for him. It is alleged that the prosecutrix told the
applicant that she was still a minor, however, the applicant pulled
her towards him forcibly, hit her chest and also touched her
private parts. When the prosecutrix objected to the same, the
applicant threatened her with dire harm.
5. The victim in her statement under Section 183 of the
Bharatiya Nyaya Suraksha Sanhita, 2023 (‘BNSS’) reiterated the
allegations and further stated that the applicant had inserted his
finger in her private parts. Pursuant to the same, Section 64 of the
BNS and Section 4 of the POCSO Act were added to the case.
6. The learned counsel for the applicant submits that the
applicant is innocent and he has been falsely implicated in the
present case at the instance of some gundas of the area, namely,
Deenu and Ravinder, due to some personal animosity. He
submits that the prosecutrix is related to the said Ravinder.
7. He submits that the incident is alleged to have taken place
in the morning, however, the FIR was registered late at night at
the instance of the prosecutrix.
8. He submits that the place of incident is alleged to be the
residence of the applicant where he lives with his entire family
and it is implausible that such an incident happened there in
broad daylight.
9. He further submits that the CCTV Footage obtained by the
prosecution is out of the area and not the relevant gali.
BAIL APPLN. 4803/2024 Page 2 of 6
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10. He submits that the applicant did not receive any notice
under Section 38 (2) of the BNSS.
11. Per contra, the learned Additional Public Prosecutor
(‘APP’) for the State vehemently opposes the grant of any relief
to the applicant. He submits that the offence as alleged against
the applicant is grave in nature and the applicant has never joined
the investigation.
12. He submits that there is CCTV footage that shows the
victim running from the house of the applicant.
13. He further submits that the case is still at a nascent stage
and the applicant is not joining the investigation.
14. I have heard the counsel and perused the record.
15. The considerations governing the grant of pre-arrest bail
are materially different than those to be considered while
adjudicating application for grant of regular bail, as in the latter
case, the accused is already under arrest and substantial
investigation is carried out by the investigating agency.
16. It is trite law that the power to grant a pre-arrest bail under
Section 482 of the BNSS is extraordinary in nature and is to be
exercised sparingly. Thus, pre-arrest bail cannot be granted in a
routine manner. The Hon’ble Apex Court, in the case of State of
A.P. v. Bimal Krishna Kundu : (1997) 8 SCC 104, held as
under:
“8. A three-Judge Bench of this Court has stated in Pokar
Ram v. State of Rajasthan [(1985) 2 SCC 597 : 1985 SCC
(Cri) 297 : AIR 1985 SC 969] : (SCC p. 600, para 5)
“5. Relevant considerations governing the court’s
decision in granting anticipatory bail under Section
438 are materially different from those when an
application for bail by a person who is arrested in
the course of investigation as also by a person who
is convicted and his appeal is pending before the
higher court and bail is sought during the pendencyBAIL APPLN. 4803/2024 Page 3 of 6
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of the appeal.”
9. Similar observations have been made by us in a recent
judgment in State v. Anil Sharma [(1997) 7 SCC 187 : 1997
SCC (Cri) 1039 : JT (1997) 7 SC 651] : (SCC pp. 189-90,
para 8)
“The consideration which should weigh with the
Court while dealing with a request for anticipatory
bail need not be the same as for an application to
release on bail after arrest.”
xxx
12. We are strongly of the opinion that this is not a case for
exercising the discretion under Section 438 in favour of
granting anticipatory bail to the respondents. It is disquieting
that implications of arming the respondents, when they are
pitted against this sort of allegations involving well-
orchestrated conspiracy, with a pre-arrest bail order, though
subject to some conditions, have not been taken into account
by the learned Single Judge. We have absolutely no doubt
that if the respondents are equipped with such an order
before they are interrogated by the police it would greatly
harm the investigation and would impede the prospects of
unearthing all the ramifications involved in the conspiracy.
Public interest also would suffer as a consequence. Having
apprised himself of the nature and seriousness of the
criminal conspiracy and the adverse impact of it on “the
career of millions of students”, learned Single Judge should
not have persuaded himself to exercise the discretion which
Parliament had very thoughtfully conferred on the Sessions
Judges and the High Courts through Section 438 of the Code,
by favouring the respondents with such a pre-arrest bail
order.”
17. It is the case of the prosecution that the applicant called the
prosecutrix, who is a minor, to his residence under the guise of
helping her secure a job, and thereafter, he sexually assaulted her
and inserted his finger in her private part as well.
18. It is argued on behalf of the applicant that he has been
falsely implicated due to some prior animosity and the FIR was
registered belatedly at around 11:30PM even though the incident
as alleged took place at around 9:30AM. It is also stated that
there is no CCTV footage of the gali.
19. On the other hand, the learned APP states that the CCTV
BAIL APPLN. 4803/2024 Page 4 of 6
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Footage establishes the presence of the prosecutrix at the place of
incidence. He has stressed that the prosecutrix has reiterated the
allegations in her statement under Section 183 of the BNSS.
20. While the allegations and defences would be seen by the
learned Trial Court, however, it cannot be ignored that the
investigation is at a nascent stage in the present case.
21. Insofar as the bald averment regarding the applicant
having been falsely implicated is concerned, at this stage, it
cannot be presumed that the investigation is being carried out
with the intention to injure or humiliate the applicant. Serious
allegations have been made by a minor girl against the applicant
which attracts stringent provisions of POCSO Act.
22. The nature and gravity of allegations are serious. The
Investigating Agency needs to be given a fair play in the joints to
investigate the matter in the manner they deem appropriate.
23. The learned APP, on instructions, has also stated that the
applicant has not jointed the investigation in the present case. In
such circumstances, the investigation ought not to be curtailed by
passing an order granting pre-arrest bail.
24. The relief of pre-arrest bail is a legal safeguard intended to
protect individuals from potential misuse of power of arrest. It
plays a crucial tool in preventing harassment and unjust detention
of innocent persons. However, the court must carefully balance
the individual’s right to liberty with the interests of justice. While
the presumption of innocence and the right to liberty are
fundamental principles of law, they must be considered in
conjunction with the gravity of the offence, its societal impact,
and the need for a comprehensive and unobstructed investigation.
25. It is also settled law that the custodial interrogation is
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qualitatively more elicitation oriented than questioning a suspect
who is well ensconced with a favourable order of pre-arrest bail
[Ref. State v. Anil Sharma : (1997) 7 SCC 187]. Granting pre-
arrest bail to the applicant would undoubtedly impede the
investigation. An order of bail cannot be granted in a routine
manner so as to allow the applicant to use the same as a shield.
26. Considering the facts and circumstances of this case, this
court is not inclined to grant pre-arrest bail to the applicant at this
juncture.
27. The application is therefore dismissed.
28. It is made clear that the observations made in the present
case are only for the purpose of considering the bail application
and should not influence the outcome of the trial and also not be
taken as an expression of opinion on the merits of the case.
AMIT MAHAJAN, J
DECEMBER 24, 2024
BAIL APPLN. 4803/2024 Page 6 of 6
This is a digitally signed order.
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The Order is downloaded from the DHC Server on 28/12/2024 at 02:45:18