'Lives In Victim's Neighborhood, Took Advantage Of Her Mental Faculties': Delhi High Court Cancels Bail Of Rape Accused

The Delhi High Court has cancelled the bail of a man accused of raping a 37 year old woman suffering from bipolar mental disorder episodic mania and psychotic features after taking her undue advantage, while directing him to surrender in custody within a week.

Justice Mukta Gupta noted that the Trial Court failed to notice that the accused was living in the neighbourhood of the prosecutrix, thus was aware of her mental faculties.

The Court said "The learned Additional Sessions Judge failed to notice that the respondent No.2 was living in the neighbourhood of the prosecutrix, thus was aware of the mental faculties of the victim and taking advantage thereof, as her marriage was broken and she was eager to get married, he lured her stating that he would get the evil spirit out of her soul, get her married to a boy and called her on 21st July, 2021."

"On the pretext of taking her to Vaishno Devi, the respondent No.2 took her to Nainital where he performed sexual relationship by giving intoxicants in the cold drinks. The learned Trial Court failed to notice that consciousness and orientation are different from being able to exercise sound mental judgment and to realise that the victim is being enticed to fall prey to the accused."

The Court therefore set aside the order granting bail to the accused considering the fact that the impugned order suffered from gross-illegality as the trial court totally ignored the statement of the prosecutrix recorded under sec. 164 Cr.P.C., the seriousness of the offence, the fact that the statement of the prosecutrix was yet to be recorded before the Trial Court and that the accused was living in the vicinity of the prosecutrix and was likely to influence her by luring her again or by intimidating her.

The petition was filed through the father being the legal guardian of the victim who was suffering from bipolar mental disorder episodic mania and psychotic features since the year 2002 and was diagnosed in 2015 with shortly after her marriage. The same also resulted in initiation of divorce proceedings between the victim and her husband.

The counsel appearing for the petitioner argued that despite the trial court called for report from IHBAS on numerous occasions, however the impugned order was passed without waiting for the final report which was received on 15th September, 2021.

The accused was arrested on 30th July, 2021. It was argued by the petitioner that while granting bail, though the Trial Court took notice of the initial statement of the victim recorded before the Police, however failed to note her detailed statement recorded under Section 164 Cr.P.C. before the Metropolitan Magistrate.

The Court was informed that the statement of the prosecutrix recorded under Section 164 Cr.P.C. and the call detail record showed that she came in touch with the accused three days prior to 21st July, 2021, when he lured her on the pretext that there was an evil spirit of a dog in her body which needs to be removed.

It was also stated that the accused took the prosecutrix to Nainital instead of Vaishno Devi by putting vermilion in her head, the prosecutrix was made to believe that they were married and committed sexual intercourse with her.

It was also submitted that the statement of the prosecutrix recorded by the Metropolitan Magistrate clearly showed that she was threatened and that the accused was a neighbour and knew her medical condition.

On the other hand, it was the case of the accused that the prosecutrix had entered into a settlement with her husband for seeking divorce by mutual consent which showed her cognitive faculties. It was also stated that after being brought to Delhi, the prosecutrix gave her first statement on 23rd July, 2021 wherein she stated that she went voluntarily with the accused and that she established physical relationship of her own volition.

It was also argued that since the prosecutrix was a major and had consented to establishing relationship, the accused was rightly released on regular bail by the Trial Court.

"It is trite law that cancellation of bail granted can be directed either because the the order granting bail is perverse, illegal, contrary to law or unjustified or if the accused violates the conditions of grant of bail such as tempering with the evidence, interfering with the investigation, influencing the witnesses or fleeing away from justice. In the present case, the petitioner seeks cancellation of bail on the first ground that the order granting bail is perverse, illegal and contrary to the settled principles of law of grant of bail," the Court said.

The Court noted that the trial court failed to notice that the prosecutrix also stated that the accused was in touch with her or speaking to her for the last 2-3 days only and that he was taking her to Vaishno Devi to take out the evil spirit from her and thus on 21st July, 2021 she left without telling her parents.

"While granting bail to the respondent No.2, the learned Additional Sessions Judge totally ignored the statement of the prosecutrix recorded under Section 164 Cr.P.C. and also history noted in the MLC on 23rd July, 2021 itself," the Court said.

At the outset, the Court reiterated some of the main factors to be borne in mind while considering an application for grant of bail as follows:

- whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

- nature and gravity of the accusation;

- severity of the punishment in the event of conviction;

- danger of the accused absconding or fleeing, if released on bail;

- character, behaviour, means, position and standing of the accused;

- likelihood of the offence being repeated;

- reasonable apprehension of the witnesses being influenced; and

- danger, of course, of justice being thwarted by grant of bail.

"The bail granted to the respondent No.2 is cancelled. Respondent No.2 will surrender to custody within one week," the Court ordered.

Case Title: X v. STATE (NCT OF DELHI) & ANR.

Citation: 2022 LiveLaw (Del) 169

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