Ball Applientlon No.

1720/2022
State Va. AMIT SAXENA
FIR No. 309/2022
PS: Harl Nagar
U/S: 323/354/506/34/376 IPC

02.08.2022
438 CrP. (iled on behulf of
This iw neeond ball nppllentlon under Sectlon
bal,
aeeused Amit Saxena for grunt of nntielpntory

PreNCnt: Mx. Shubhra (ioel, 1ad. Adll. PP lor Stute.

MN. Nishu, Ld. Counscl for DCW.

Arguments ulrendy heurd on the buil upplication.

Werc

of complint made
The prewent FIR wus rcgistcred on the busis
lari Nug1r Suntoshi Mata
by the complainnnt that on 14.01.2022. she went to
her lriend Aurti her lricnd Aurti had told her ubout the
Temple alongwith as

Tcmple where one "Bubu' (priost) who is also called "Mutu' solvcs the life
Il is lurtier nllegcd
problems ofl people through his years of religious pruetice.
went to the tenmple md
thnt believing thesc representations, the compluinant
nlone where she wus told she would meel the "Babu', The
wcnt upluirn
complaint then in the temple und shurood her life problew
met the Baba'
und so, tupon coming
with him belicving tht he would solve her problems too,
to know thut the compluinnt wus in trouble, the 'Bubu' told Uic complainnt
that all her problems shall disuppcur soon us she had come to the riglht persom

and thnt slhe whould start staying in the tomple itsclf until all her problenns are

'Bubu' told the

solved. Iisnlleped that uller making sueh represcntations, the
scok his blewsings nd
compluinnnt to bend forwurd and touch his fecl and
when complainant bernt forward to louch "Baba's' locl, he slarted rubbing. his
hnds nll over her body nnd sturted to fondle und touch her inapproprintcly

P'Hge Nv, 1 ot 12
NIate va AmlI NuxeDN
 around her chest, on which the complainant pushed the 'Baba' away and
complainant hurriedly left the place and started running downstairs and in the
middle, she met a large built woman, to whom the complainant narrated the
entire incident of sexual assault. It is further alleged that at this moment, the
Baba' rushed downstairs and told the woman to catch hold the complainant as
she had disagreed to become his disciple and threatened to kill her. It is further
alleged that on 27.03.2022, the complainant gathered courage to speak up

against the sexual assault and hence, revisited the temple to confront the
accused, however, the disciple of the accused alongwith other 4-5 women and

some men caught hold of the complainant and started assaulting the
complainant upon the directions of the accused for raising her voice against

the incident of sexual assault.

The first bail application of the applicant/accused was disposed
off by the Court of Ms. Neha Paliwal Sharma, Ld. ASJ, West District, THC on

30.06.2022 with the direction to the 1O to serve 07 working days prior notice

him to seek legal remedies in case it is found

upon the accused for enabling
that his custodial interrogation is required for concluding the investigation.
It is submitted on behalf of the accused that on 25.07.2022, the

accused received a notice sent on Whatsapp by the IO of the case informing

him that she wished to arrest the accused/applicant and thus gave him time till

03.08.2022. Hence, the accused/applicant has moved the present anticipatory

bail application. It is submitted that the delay in the FR is clearly to negate

coming on record to support the

.*
any chances of any corroborative evidence
Further it is submitted that at no point of time it
wild and baseless allegations.
when there are not several devotees and temple staff present in the
happens
temple and in such a gathering of several number of people, it is impossible
for such an act to be committed and it is not possible for a prudent person to
:

Page No. 2 of 12
State vs. Amit Saxena
 believe that despite her modesty being outraged, the alleged complainant
come to the
would not report the matter to any authority and thereafter, will
same place without any reason and provocation. Further, prior to registration
of the FIR, the complainant re-visited the temple with regard to the alleged

chose to go the
incident on 27.03.2022, which establishes that the complainant
no
on that day with a malafide intent with ulterior motive and
temple
explanation has been offered in this regard. Also, the complainant has not
stated in her complaint that she ever informed anyone, including her family,

agency that such an incident had

friends, relatives or any law enforcing
no as to why the complainant chose
occurred with her and there is explanation
to remain silent for such an inordinate period of time. Furthermore, the

seen interviews to media persons immediately after

complainant can be giving
filing of the complaint at PS Hari Nagar, a tactic clearly aimed at maligning
more than
the pious image of the accused/applicant. An inordinate delay of
one and a half months in registration of the complaint clearly reflects the

malafide manner in which the FIR has been gotten registered against the

order to harass and humiliate him. It is pertinent to

accused/applicant just in
mention that the accused/applicant is falsely implicated in the present case by
the complainant in connivance with Nitin Saxena, who is brother of the

accused as a family dispute has arisen between the brothers pertaining to the

properties as inherited by them from their parents. It is submitted that

filed a civil suit before the Hon'ble High Court of Delhi
accused/applicant has
for declaration and permanent injunction restraining his brother Nitin Saxena

from disturbing the peaceful running of temple and day to day activities and
further restraining them from selling. parting with possession, alienating or

creating third party interest.

It is further stated that initially on 28.03.2022, an FIR bearing

Page No. 3 of 12
State vs. Amit Saxena
 no.308/2022 came to be
registered against the brother of the accused Nitin
Saxena, registered at PS Hari Nagar under Sections 354A/341/509/34 IPC and
the present FIR is nothing but a motivated retaliatory FIR based upon false
and baseless allegations, and the present FIR came to be registered only after
registration of FIR bearing no.308/2022. Also, it has come to the knowledge of
the applicant/accused upon
receiving of a notice regarding bail cancellation
wherein the new fact of subsequent leveling of
charges of rape upon him. The
accused/applicant was also threatened that he will be implicated in a false rape
case which was duly intimated to PS Hari Nagar vide DD no.101A dated

26.02.2022. Also, as till date the accused/applicant had joined the investigation
on being served upon with notice under section 41A CrPC. The accused had

joined investigation in the present matter not once but on two dates i.e.
30.04.2022 and 02.05.2022 upon being served with a notice to join the

investigation under section 41A CrPC. Also, the brother of the

accused/applicant namely Nitin Saxena and his business partner namely

Jatender Pal Singh upon being granted anticipatory bail in case bearing FIR

no.308/2022 registered at PS Hari Nagar threatened the accused/applicant for

lodging numerous false complaint of rape by unknown women. Accordingly,
the accused had made a complaint for the threats received on 02.06.2022 with
PS Hari Nagar vide DD entry bearing no. 101A. On the same day, Jatender Pal

Singh came to the temple alongwith his goons and threatened and misbehaved
with the wife of the accused.
It is further submitted that in the statement under Section 164
CPC which was recoded on 08.04.2022, no allegation with regard to rape
were raised by the complainant and instead the allegation was that when she
.i
had bent down in order to take the blessings of the accused, he caressed her
back from upper to lower portion and thereafter, suddenly put his hand inside

Page No. 4 of 12
State vs. Amit Saxena
her worn suit on the chest portion. The allegation with regard to the accused
touching her private part was also leveled in her statement recorded on

08.04.2022. It is only in her hand written complaint dated 04.06.2022, that she

had for the very first time raised the allegation against the accused that he had
inserted his finger on her lower portion and prior to the said date no such
allegation was ever raised. Hence with this background, it is submitted that the

10 would have to satisfy this Hon'ble court as to on basis of what fresh

material collected by her since 30.06.2022, she is now seeking the custodial

interrogation of the accused.

It is submitted by the Ld. Counsel for accused/applicant that

accused has clean antecedents and has maintained good character throughout
his life and is a permanent resident of aforesaid address and is ready to abide

by the conditions imposed by this Court in case he is granted bail and will not
hamper the investigation nor will he influence the witness in the event of

being granted bail to him.

It is submitted that the allegation of touching of private parts can

attract at the most only the offence of outraging of modesty as defined under
section 354 IPC and not section 376 IPC, and it is evident in this case that the
complainant has improved her version at each stage coupled with the fact

about the delay in FIR with ulterior motives, hence on these grounds also, the

present bail application may be allowed

In support of the bail application, the accused has relied on
judgments of Hon'ble Supreme Court titled as "Jai Prakash Singh v. State of
Bihar (2012) 4 SCC 379, Sushila Aggarwal and Ors vs State and Anr. (2020)
5 SCC 1, and "Siddharam Satingappa Mhetre v. State of Maharashtra and
Ors. (2011) 1 SCC 694".
The reply had been filed by the 10 wherein it is submitted that

State vs. Amit Saxena Page No. 5 of 12

 on 27.03.2022, PCR calls vide DD no.49A, DD no.40A were received at PS

Hari Nagar regarding the quarrel and physical assault at Santoshi Mata Mandir
and the 10 reached the spot at the Mandir wherein she found the complainant
and complainant stated that she was sexually assaulted by 'Bhagat Ji' i.e.
accused on 14.01.2022 and had been further manhandled on 27.03.2022 by his
devotees. She further submitted that she would file a written complaint at Ps
Hari Nagar. In the complaint, the complainant alleged that on 14.01.2022 a
about 8 pm, she along with her friend Aarti had visited at Santoshi Mata

Mandir, Hari Nagar, Delhi to talk about her problems and seek suggestions
from 'Bhagat Ji' and she was called by the accused into his private chamber
and when she bent own to touch his feet, the accused started touching her
inappropriately, put his hands her clothes and started groping her chest. The

FIR No.309/2022 dated 28.03.2022 u/s 323/354/506/34 IPC was registered on

the basis of the complaint dated 28.03.2022 and investigation was initiated.
During the course of investigation, the statement of the complainant under

Section 164 CrPC was recorded on 08.04.2022 wherein she reiterated her
allegations against the accused that he molested her on 14.01.2022 and when
she went to the mandir to confront the accused, she was manhandled by a

group of women- the devotees/staff of the accused and during the scuffle, one

unknown boy squeezed her chest. It is further submitted by the I0 that the

CCTV recording equipments including hard drives were seized on 27.04.2022

and it was found that the data of 27.03.2022 was available in the CCTV while
the date from 14.01.2022 was not found. The data of 27.03.2022 corroborates
the incident of that date. It is submitted that the complainant had identified two

women namely Sunita and Abhinanda and they were added as accuseds in the

. .
investigation. Regarding the CCTV footage of 14.01.2022, the accused had
been issued a notice where he was asked about the data in the hard drive of

State vs. Amit Saxena Page No. 6 of 12

 14.01.2022 which was not available and he stated that the data automatically
gets overwritten after 15-20 days. The seized hard drive of the CCTV footage
has been sent to the FSL to report whether the data of 14.01.2022 can be

extracted and also whether the data gets automatically overwritten or has been

manually deleted.
At this juncture, it is pertinent to mention that during the

arguments on this bail application the copy of FSL report dated 12.07.2022
has been furnished where in FSL has been reported that the requisite data
dated 14.01.2022 cannot be found in the data retrieved from the exhibits and it

was als0 not possible to ascertain whether the data was overwritten or

manually deleted. Hence, the court is of the opinion that the FSL report has
been inconclusive on the determination of the issue that whether the CCTV

footage of 14.01.2022 overwritten or has been manually deleted.

As regard the Mandir involved in the case, the 10 has reported
that Mandir situated at property no. GC-28, Jail road, Hari Nagar and the

temple was inaugurated on the private property by Mr. S. B. Saxena (father of

accused), and the accused had taken charge of the property in 2005. It is
mentioned in the reply that the ground floor and first floor were designed as
public facing areas where accused conducted Bhajan and Pooja. The
documents of the property were seized and it has been found out that the
mother of the accused namely Late Smt. Kanta Saxena had willed this
property to the accused and his brother Nitin Saxena and there is civil suit CS
(OS) no. 192/2022 pending between the brothers before the Hon'ble High
* **

court over title and possession of the Mandir property.

Further on 04.06.2022, on the complaint of the complainant, the
offence under section 376 IPC was added in the FIR and further she had
named the wife of accused namely Rekha.

State vs. Amit Saxena Puge No. 7 of 12

 to mention at this stage that the first
It is also pertinent
bail of the accused had been disposed off by the
application for anticipatory
dated 30.06.2022 with
Court of Ms. Neha Paliwal, Ld. ASJ vide order
notice upon the accused for
directions to I0 to serve 7 working days prior

to seek remedies in case custodial interrogation is required

enabling him legal
in the investigation of the case.The copy of the order dated 30.06.2022 had

also been furnished alongwith bail and it can be clearly seen in the
application
to the recovery and deletion
of CCTV
same that the directions with regard
the first anticipatory bail
footage was given by the Ld. ASJ while disposing off
as mentioned
application, and the FSL report has been consequently procured

above.
had issued a notice to the accused
After the FSL result, the 1
Ld. ASJ stating that custodial
dated 25.07.2022 in compliance of the order of
in this case. It has been also
interrogation is required for further investigation
mentioned in the reply of the IO that the accused is involved in the
briefly
are as follows: FIR no. 269/2017 u/s 420/406 IPC PS.
various cases which
365/394/323/506/120B/342/34 IPC PS Patel
Rohtak, FIR no.449/2005 U/s
filed complaints
Nagar. It is further stated in the reply that the complainant has
21.06.2022 vide DD no.127
vide DD no.76 dated 11.05.2022, and dated
associates that she has been
regarding threat from the accused and his
threatened with dire consequences if she does not take
the
pressurized and
on these
case back against the accused. Hence, bail application opposed

ground.
The Ld. Addl. PP has also strongly opposed the bail application
nature and
stating that the offence of the accused is serious and grave in
accused is an influential person. It is further submitted that there is possibility

with the
that accused may induce and threaten the victim and could tamper

Page No. 8 of 12
State vs. Amit Saxena
 evidence and manipulate the witnesses.
has vehemently
Also, the Ld. Counsel for the complainant
accused that
the allegations of the
opposed the bail application, submiting that
her statements is absolutely
the complainant has made vast improvements in
dated 28.03.2022,
incorrect. It in the initial complaint
is submitted that even
touched by the
been inappropriately
the complainant had stated that she had
mechanism has been
stressed that the investigation
accused. It is strongly
the offence and that is the
consistently trying to underplay the gravity of
section 323/34/506 IPC.
reason that firstly the FIR was registered only under
is young girl of 19 years old already
It is submitted that the complainant
accused who
family problems and she is pitted against the
facing personal and
staff and associates to do
his bidding
is an influential person and has numerous

entire
it is submitted that the
and also has money and muscle power. Hence,
and has been very
and protected the accused
police force has rather supported
matter. It is submitted
that it is for this
lethargic in the investigation in this
was compelled to approach
the Hon'ble High
r e a s o n that the complainant
when she
from PS Hari Nagar and only
Court to transfer the investigation
this
that the police started working in
approached the Hon'ble High Court,
case.

It is further submitted on behalf of complainant that in the

stated that "mere peeth ko
complaint dated 04.06.2022, she had clearly
sehlana shuru kar diya aur mere neeche wali jagah par ungli daal di,"

hence, the offence under section 376 PC was added after this complaint. It is
police had not recorded the
submitted that the fact of the matter is that the
the complainant in order to the accused. It
complete allegations made by save

influence of the accused be ascertained by the very fact

is stressed that the can

that even if the FIR was under section 354 IPC, the police did not affect arrest

Page No. 9 of 12
State vs. Amit Saxena
as even the section 354 IPC is cognizable and non bailable offence.

It is submitted that the property dispute between the brothers is

of no concern to the complainant and it has nothing to do with the offence

which has been committed against her. It is submitted that the complainant has

challenged the order 30.06.2022 passed by the Ld. ASJ before the Hon'ble

High Court and at present notice has been issued in this matter to the opposite
is
parties. Hence, it is submitted that the entire scenario reflects that there
grave perception of threat to the victim and on this ground the bail application

may be rejected.
bail threat
In support of the submission about denial of
on

perception the complainant has relied on "Sant Sh. Asharam Bapu v. State of
CBI Amarmani Tripathi" and
Rajasthan", "State of U.P. through v

"Saurabh Bali v. State (Del HC) ".

that the nature of
Further, in support of the submission
of tampering
accusation, severity of punishment, reasonable apprehension
are

has relied Lt Col. Prasad

also important factors, the complainant on

Shrikant Purohit v. State of Maharashtra", and "Monson v. State of

Kerala".
Further to support the submission that delay in FIR not fatal

sexual assault cases, the complainant has relied on Dildar

especially in
Singh v. State of Punjab", "State of Chhattisgarh v. Derha", and "Chaman

Ali v. State".
More importantly to stress on the point that penetration not

necessary for offence of rape and touching or rubbing of private part is enough

to attract S. 376 IPC, the complainant has relied on "Statev. Satish Sharma &

Ors", "Babul Khan Wali v. State of Maharashtra", and "Cheerfulson

Snaitang . State of Meghalaya".

State vs. Amit Saxena Page No. 10 of 12

 at
The Court has heard the arguments of the respective Counsels
length and has gone through the record.
has made
Whether the complainant has made false allegations or

when evidence
vast improvements, can only be ascertained at the stage of trial
of the case as
1s led. At this stage, the court is concerned with the background
The court
the witnesses.
well as the of influencing and the safety of
possibility
likelihood of the accused
Is of the opinion that in this
matter there is
of justice. The
with the witnesses and polluting the process
interfering
with regard to the
filed two written complaints
complainant had already overlooked
cannot be
received from the accused/his
associates, which
threats
accused is
on record that the
at this critical juncture. It has amply
come

are not as clean as

antecedents
involved in a few other cases, hence, the
situation that
application. Given this fact,
coupled with the
claimed in the bail
influence and resources,

the accused is prominent member of society having

complainant are reasonably
justified.
the apprehensions of the
notice issued by the I0, she has clearly
In the seven days prior
the accused is
is necessary as
custodial interrogation of
mentioned that arrest
to mention
for further investigation. At this point, it is also pertinent
required
not e x o n e r a t e the
data of date 14.01.22, does
that the FSL report qua the
inconclusive. Be
of the court, the FSL report is
accused, rather in the opinion
the position and status of the accused,
that as it may, in this case considering
the
the witnesses being tampered with, and
the reasonable apprehension of
thwarted by grant of bail, the court is not
danger of legal process being
inclined to accept the present application for anticipatory bail.
The Ld. Counsel for the accused had submitted during the course

of arguments that as per his knowledge, the chargesheet has already been filed,

submitted that investigation remains to be done in this

but the IO had orally

Page No. 11 of 12
State vs. Amit Saxena
 matter. Hence, for all purpose the investigation ongoing in this matter, and also

in light of the conclusion that there is possibility of threat and tamperinE itl

the witnesses, the present bail application is rejected.

Application stands disposed off. Dasti on request.

(RIYA GUHA)
ASJ (FTSC) (RC)-02/West/THC

02.08.2022

Sc:

E A q i n i s t f a i i v e C f f f c e (Juqicial)

District &
Seasions

Flling
udgeVWest

Brann
Bail ancd Dehinl
Couris,
Hazeri
Tis

Page No. 12 of 12
State vs. Amit Saxena