Matters Regarding Personal Liberty To Be Dealt Cautiously, Balance To Be Struck Between Respect For Fundamental Rights & Fair Investigation: Delhi HC

The Delhi High Court has observed that matters regarding liberty of a person have to be dealt with cautiously and that a balance has to be struck between respect for his fundamental rights and free and fair investigation as well.

Justice Swarna Kanta Sharma made the observation while granting bail to a man in an FIR registered under sec. 376D, 506 and 34 of Indian Penal Code.

It was the case of the complainant, real sister of the petitioner, that the incident in question had allegedly taken place in March 2019. When a query was put to the counsel for the complainant regarding reason for the delay in lodging of the FIR, it was stated that since it was a sensitive relationship, at the instance of their father who had unfortunately passed away in October, 2021, the complainant did not lodge any complaint.

It was stated that the prestige of the family was paramount for her and that after passing away of her father and after consultation with her husband the present FIR was lodged in April, 2022 i.e. after about three years of the alleged incident. No other reason was put forth by the State or the counsel for the complainant.

The Court was of the view that it has to remain conscious and keep in mind that the case involved sexual assault of the real sister by two brothers and also involvement of the wife of the petitioner who had allegedly stood guard outside the room where the alleged incident had taken place.

"I am of the view that prima facie there is delay of three years in lodging of the present FIR and in the statement under Section 164 it is mentioned that since her father had requested her not to disclose the same, she had refrained from lodging the FIR," the Court said.

The Court was also of the prima facie view that was is the case of the complainant herself that after giving careful thought for three years, she had lodged the FIR.

"Therefore while the FIR was neither lodged in a hurry nor under threat, the video recording still did not find mention in the FIR," it noted further.

At the outset, the Court observed:

"However, in view of the rulings of the Hon'ble Supreme Court in various cases, it is not merely the seriousness of the allegations levelled but also the facts and circumstances of the case that need to be examined, as to whether in case the accused is released on bail, he would flee from justice or not and if he would cooperate in the investigation or would attempt to influence the witnesses or tamper with evidence, and if he would participate as and when the trial commences."

"Matters regarding liberty of a person have to be dealt with cautiously, a balance has to be struck between respect for his fundamental rights and free and fair investigation as well."

It was argued by the counsel appearing for the petitioner that he was a practicing Advocate and there was no question of him leaving the country or not abiding with any condition imposed by this Court in case he is granted bail.

Accordingly, bail was granted by the Court.

Case Title: NIZAMUDDIN KHAN v. THE STATE & ANR.

Citation: 2022 LiveLaw (Del) 511

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