Anticipatory Bail is court's discretion: Delhi High Court refuses relief to Yoga teacher accused of sexually harassing minor

Stating that courts have the discretion whether or not to grant anticipatory bail, the Delhi High Court refused to grant relief to a Yoga teacher accused of sexually harassing a minor girl (Swami Ganeshanand v. State)..The accused was charged with committing bailable offences under Sections 354-A (sexual harassment) and 509 (insulting the modesty of a woman) of the Indian Penal Code, as well as Section 12 (punishment for sexual harassment) of the Protection of Children from Sexual Offences (POCSO) Act, 2012..The order was passed by a Single Judge Bench of Justice Prathiba M Singh in the anticipatory bail plea moved by one Swami Ganeshanand, a Yoga teacher (petitioner)..As per the FIR, the petitioner took photographs of the minor complainant, committed indecent acts, made obscene gestures towards her and used abusive/filthy language..Counsel for the petitioner submitted that the crime as alleged was not so heinous that it would warrant custodial interrogation or judicial custody. Thus, his client's mechanical and casual arrest should be avoided. .It was argued that even if the case of the complainant was true, Section 354-A and Section 509 IPC were bailable offences and under Section 12 POCSO Act, the maximum sentence was three years. Reliance was also placed on cases wherein bail was granted to accused under Section 12 POCSO. .The Court was further informed that during the period of interim protection, the petitioner had moved out of the colony where the complainant resided in order to avoid any allegations of harassment or threats against him..Counsel for the complainant argued that the petitioner was a habitual offender as there were many other FIRs against him, lodged by women in the neighbourhood..In its status report, Delhi Police clarified that the investigation was already underway and when efforts were made to arrest the petitioner, he absconded. .It was added that thereafter, the petitioner's anticipatory bail was rejected by the trial court, twice. .The status report also noted the existence of other pending FIRs against the petitioner. While some pertained to a family dispute, the others concerned his alleged abusive and obscene behaviour. .Relying on the Supreme Court's decision in Sushila Aggarwal and Ors v. State, the Court reiterated that no offence stood excluded from the purview of Section 438 of the Code of Criminal Procedure (CrPC)..However, there were certain basic factors which courts have to consider while granting or not granting anticipatory bail, the Court added. .These factors are:- Nature/gravity of the offence; - The role of the offender;- The circumstances involved; - Whether fair investigation would be possible;- Flight risk; - Possibility of tampering with evidence;- Possibility of intimidating witnesses; - Other surrounding circumstances.."Ultimately, it is the court’s discretion to grant or not grant protection in such an application for anticipatory bail."Delhi High Court.In the present case, the Court noted that the petitioner not only absconded from the investigation, but also faced at least three complaints wherein unconnected women have made allegations of abusive and inappropriate conduct..The Court further considered that there were allegations of threats to the complainant when the petitioner was granted interim protection from arrest. .It thus observed, ."The Petitioner is stated to be a Yoga teacher who has some influence in society...In the present case, the investigation has not yet concluded and the Petitioner does have the propensity to influence the investigation.".While acknowledging the petitioner's reliance on orders wherein anticipatory bail was granted in cases involving offences under Section 12 POCSO, the Court remarked, ."In the case at hand, the question is not whether this Court has the power to grant anticipatory bail or not. The question is whether the Petitioner deserves anticipatory bail or not in the peculiar facts and circumstances of this case. The facts of each case are different.".Ultimately, in view of similar complaints by other unconnected women and the petitioner's non-cooperation, the Court stated that it was not inclined to allow the prayer for anticipatory bail..While directing the petitioner to immediately surrender before the authorities, the Court clarified that he was free to seek regular bail..Senior Advocae KK Manan with Advocate Udita Bali appeared for the petitioner. APP Raghuvinder Verma appeared for the State. .Advocate Rakhi Dubey appeared for the complainant..Read the Order: