xxxxx ….Petitioner
Versus
STATE (GOVT. OF NCT OF DELHI) & ANR ……Respondents
REASON FOR FILING PRESENT PETITION
The present petition was filed u/s 482 of the Code of Criminal Procedure, 1973 (‘Cr.P.C’) by the petitioner seeking setting aside of order of bail dated 13.10.2020, passed by learned Additional Sessions Judge-02, South-West, Dwarka Courts, Delhi in B.M.4006/2020 whereby anticipatory bail has been granted to accused.
The present case is about FIR no.574/2020, dated 19.08.2020 u/s 376/506 of Indian Penal Code, 1860 (‘IPC’) at Police Station Palam Vihar.
On the basis of a complaint lodged by the petitioner/complainant alleging therein that respondent no. 2 had committed rape upon her on false pretext of marriage and had cheated the complainant.
That the complainant/petitioner was a single mother of two children and was doing her own business in Punjab, and the accused /respondent no. 2 used to send messages to petitioner on regular basis since August, 2019 on her WhatsApp number, however, she never used to reply to the same.
It is further alleged that in the very first audio and video call, she had informed the respondent no. 2 that she has two children, however, the accused always insisted to meet her in person, but the complainant had refused to meet him. It is stated that on 27.10.2019, respondent no. 2 had again started sending WhatsApp messages to her on one pretext or the other and had also started making video calls to her which she never used to answer.
The victim was allured and the accused/respondent no. 2 had succeeded in making the petitioner fall in love with him.
The Accused had stayed with the complainant in Delhi for two days i.e. on 28.01.2020 and 29.01.2020 at her residence and had continued to make physical relations with her. On 02.02.2020, he had again visited Delhi and had again made physical relations with her at her home in Delhi on the pretext of getting married to her at the earliest.
On 16.03.2020, he had met her at her residence and he had formatted the mobile phone of the complainant on the pretext of calling some other person. He had done so with ulterior motive to delete the entire data including photographs, messages, chats etc. of respondent no. 2 from time to time with the complainant and her family members.
Thereafter, whenever the complainant used to make phone calls to him, he used to threaten her to destroy her family in case she will take any legal action against him, and always used abusive language with her and threatened her with dire consequences.
Hon’ble Delhi High Court Obesevations
The Hon’ble High Court while going through the impugned order of Ld. ASJ noted that the learned ASJ has made observations on the merits of the case and while granting anticipatory bail to the accused, has commented on the merits of the case at the stage of grant of anticipatory bail itself when the matter was still under investigation.
The Ld.ASJ order records that it appears that the complainant is trying to harass the accused/respondent no. 2, though he has clean antecedents. The learned ASJ should have refrained from saying so at the time of passing of a bail order or even otherwise. Though the Courts have to pass a reasoned order while granting or denying bail, but they are not required to decide the merits of the case or of the contentions in detail without mentioning in the order that the same will not be considered as opinion on the merit of the case.
Hon’ble High Court said, When the issues in question are still under investigation, regarding which evidence is yet to be collected by the prosecution; it would be a dangerous trend to give a categorical opinion about the same at the stage of grant of anticipatory bail. Delhi High Court observed that the categorical observations made at the time of passing of the anticipatory bail order were uncalled for and should have been avoided.
Therefore, High Court directed that nothing expressed in the impugned anticipatory bail order dated 13.10.2020 shall have any bearing on the merits of the case when the concerned learned Trial Court will decide the present case, at the stage of passing of final judgment. The learned Trial Court will decide the case irrespective of these observations, without being influenced by the same, on the strength of merit of the case as per law.
USE OF DEROGATORY LANGUAGE IN PLEADINGS
High Court noted that the language used in the Counter affidavit filed on behalf of the accused /respondent no.2 includes certain derogatory terms when referring to the complainant, including phrases such as ‘art of seduction,’ which High Court strongly condemned.
Necessity of Reasonable Diligence While Drafting Pleadings
High Court said, reasonable diligence must be followed while drafting pleadings. This necessitates refraining from the use of derogatory or offensive language against the opposite party.
The goal is to ensure that all legal pleadings maintain the highest standards of respect, and legal ethics as well as promote the goal of justice for the person filing it, thereby fostering a legal system that is not just equitable, but respectable too.
Balancing the Use of ‘Strong Language’ with the Cause of
Justice
High Court said, Lawyers are entitled to present their clients’ cases to the best of their abilities while maintaining fairness. However, this does not justify the use of offensive, abusive, disrespectful, derogatory, and misogynistic language in pursuit of this goal. This case serves as a gentle reminder to all involved in the judicial process that they should refrain from using such derogatory and demeaning language. Such language is not only offensive but also damaging to the honor and reputation of the parties involved.
While strong language may be necessary at times in legal pleadings to further the cause of justice, it must not cross the line into offensiveness and should always be in keeping with the dignity of the legal profession. The pleadings should, as far as possible, maintain a
dignified tone.
As already taken note of in preceding discussion, the learned ASJ in the impugned order, while granting anticipatory bail to the accused, had recorded several findings on the merits of the case
While there is no dispute on the proposition that the Courts are authorized as well as judicially required to record reasons while granting or denying bail, drawing conclusive findings even before the investigation is complete and evidence is collected, solely based on contents of FIR and arguments addressed before the Court at the
time of hearing of anticipatory bail application, should be avoided..
In this background, Delhi High Court issued the
following directions/guidelines:
i. The Trial Courts at the time of passing orders on bail
applications or Revisionist Courts while adjudicating upon the orders challenged before them, must add a paragraph in their orders/judgments that conveys that nothing expressed in the said order/judgment shall be construed as expression of opinion of the Court on the merits of the case, so that there is no confusion to the learned Trial Court at the time of final disposal of the case.
ii. Similarly, at the time of passing orders in other miscellaneous
applications or revision petitions, which may not finally dispose of the case, a similar paragraph may be added in the order/judgment for the above-mentioned reason.
iii. Even otherwise, Trial Courts should desist generally from
passing remarks which have tendency to be treated as the finalconclusion on an issue in question, at the stage of grant of bail itself when the chargesheet is yet to be filed by the prosecution.
Insofar as the prayer regarding cancellation of bail is concerned, for the reasons recorded in paragraph no. 15, there are no grounds for cancellation of anticipatory bail granted to the accused/respondent no. 2 by virtue of impugned order.
Date:-24.09.2023
Delhi
Read, Reviewed and Edited by:-
Neeraj Gogia, Advocate
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