observed that arresting a person based on mere allegations has the potential to destroy the reputation of that person, and thus it is necessary to apply great care while dealing with an arrest done at a pre-conviction stage.HE Delhi High Court in its recent order
Justice Subramonium Prasad, on November 16, passed an order granting anticipatory bail to the petitioner in the said case under Section 438 of the Criminal Procedure Code (CrPC), and was of the opinion that the question as to whether or not the sexual intercourse which took place between the petitioner and the complainant was consensual in nature or not is to be dealt with on merits during the trial.
In the present case, the complainant had joined the company owned by the petitioner last year in June. The latter allegedly allured her to meet him at a hotel in November last year and had forcible sexual intercourse with her. He allegedly raped her again in December of the same year. However, when the petitioner attempted to repeat the conduct in January this year, she refused to do so and was thus fired from the company.
However, the complainant rejoined the company after talking to the reporting manager who, too, had allegedly been harassed by the owner. In the first information report (FIR), it was also stated that the complainant was promoted and given a raise, and that another employee who had joined as a receptionist also was coerced into having physical relations with the petitioner.
Senior Advocate Mohit Mathur, appearing for the petitioner, submitted that the petitioner and complainant were in an employer-employee relationship which later on developed into a consensual physical relationship. He also contended that if the complainant had been raped, she ought to have lodged an FIR within the shortest time possible, but she did not file one six months after the first allged incident of rape was committed.
Meenakshi Chauhan, Assistant Public Prosecutor for the State, had submitted that the charges against the petitioner are serious, especially given that the complainant and petitioner were in an employer-employee relationship, with the petitioner having the upper hand due to his position as the company’s owner. Also, during the investigation, it was discovered that the petitioner had acted in a similar manner with other female employees of his company, enticing them to engage in physical relations in exchange for raises in pay and promotions.
In the present case, the trial court had rejected the petitioner’s anticipatory bail plea in July this year, relying upon the submission of two recorded telephonic conversations made by the Investigating Officer, wherein the petitioner had approached other female employees of his company for sexual favors.
The Delhi High Court, in its order, said 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.
However, the court noted that:
“[The] 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 the arrest at a pre-conviction stage.”
The Supreme Court judgment in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra (2010) was taken as a precedent, wherein the apex court had held that the gravity of the charge and the exact role of the accused must be properly comprehended and before an arrest, the arresting officer must record the valid reasons which led to the arrest of the accused in the case diary.
The high court, with regard to the grant of anticipatory bail, said that 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 July 1, 2021 had dismissed the anticipatory bail application of the petitioner 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, the high court observed 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, the high court held that “mere apprehension of tampering with evidence or influencing the witnesses cannot be a ground for rejecting an application for anticipatory bail.”
Recent similar case
In a similar case, Mumbai-based journalist Varun Hiremath had got anticipatory bail from the Delhi High Court in the rape case registered against him by the Delhi Police in February. Hiremath was granted interim protection from arrest by the court on April 9 and later joined the investigation. But this order was a unique one as, the court disposed of the application, granted anticipatory bail but did not upload the order on the website because it had quoted extensively from the victim’s statement under Section 164 of CrPC, thereby violating the complainant’s right to confidentiality till the trial gets concluded .
The Delhi High Court, on May 13, while granting bail to Hiremath said that insistence on the part of the accused cannot be construed as coercion or fear. This case is of some relevance herein as in this case as well, the accused’s application for anticipatory bail was dismissed by the lower court before being granted by the high court.
Prima facie evidence
Preliminary investigation, according to the prosecution, appears to suggest that the petitioner was a repeated offender and there are multiple allegations against him of inducing and pressurizing female employees of his company to have physical relations with him. As the owner of the company, he holds a power over his employees, which makes it difficult for female employees to voice their concerns, as there would naturally be the fear of retaliation from the petitioner in the form of loss of their jobs.
The Delhi High Court’s order construes the standard of apprehension of tampering with evidence or witnesses on the basis of which anticipatory bail may be denied to an accused strictly.
(Utkarsh Jha is a second year B.A., LL.B. (Hons.) student at the National Law University and Judicial Academy, Assam. The views expressed are personal.)