KEHAR SINGH v. SATISH KUMAR — 1994 DIGILAW 148 (HP)

JUDGMENT D.P. Sood, J.—The father of the victim girl has invoked the jurisdiction of this court under section 439 (2), Cr. P. C. for cancelling the bail of respondent No.1 (Satish Kumar) against whom the allegation is that he kidnapped the minor girl namely, Kumari Nisha Devi, and committed rape on her. The petitioner lodged FIR. No. 104 of 1994 dated 16-7-1994 at 6.30 p. m. at Police Station Nalagarh under sections 363/366/377, I.P.C The police recovered the girl from the house of one Smt. Neelam Kaur at Jallandhar (Punjab) and thereafter recorded her statement. She is alleged to have been raped by respondent No.1 whereupon the police got her medically examined in civil hospital at Nalagarh. The medical expeit seized and sealed her Salwar and underwear which were allegedly worn by her at the time of sex indulgence. He also found the hymen to have been ruptured. Apart from the seizure of blood stained multi-coloured pad cotton cloth with foul smell, the doctor did not find any external injury over the body. However, pubic hair were found to have been smeared with blood and admitted two fingers but no evidence of fresh injury was found. Vagina swab was also collected and sent to the chemical examiner for, analysis. According to the statement of the pro- secutrix, she accompanied respondent No. 1 under the pretext that the latter would marry her. He took her to Nawan Shahar and on the way he indulged in sex with her against her will and without her consent. Thereafter both of them sought advice from one Counsel at Nawan Shahar who finding the age of the girl below 18 years, dissuaded them from marrying each other. As per the statement of the prosecutrix, thereafter she was taken to the house of Smt. Neelam Kaur at Jallandhar from where she was recovered on 21-7-1994. 2. Respondent No. 1 moved an application for seeking his release on bail in anticipation of his arrest under section 438, Cr.P.C. before the learned Sessions Judge, who after considering the record, allowed the application and directed the accused to be released on his furnishing a bail bond in the sum of Rs. 5,000 with two sureties in the like amount vide his order dated 26-7-1994. Aggrieved from the aforesaid order, the father of the prosecutrix has sought the reversal of the impugned order through the instant petition. 3. 5,000 with two sureties in the like amount vide his order dated 26-7-1994. Aggrieved from the aforesaid order, the father of the prosecutrix has sought the reversal of the impugned order through the instant petition. 3. Shri M.S. Chandel, learned Counsel for the petitioner, contended that in view of the gravity of the offence and in view of the statement of the prosecutrix, Kumari Nisha, clearly indicating the manner in which the respondent No. 1 indulged in sex with her, the impugned order passed by the learned Sessions Judge smacks of arbitrariness and amounts to gross miscarriage of justice. It is urged that the court below did not advert to the above facts and circumstances while granting bail/ Reliance has been placed by the learned Counsel on the observations made in the case of Gurumurti Digal v. Ashok Kumar Digal, 1992 Cr LJ 1917 and Rattan Kumar Bhardwaj v. State of H.P., 1994 (1) Sim LC 366. 4. On the other hand, Shri Ajay Sharma, learned Counsel for respondent No 1, contends that the learned Sessions Judge having exercised his discretion and haying granted bail on the basis of the police record and no new material pointing to the guilt of the accused having discovered, the impugned order cannot be lightly interfered with at this stage. He has contended that the purpose/underlying object of the grant of bail is to see whether the accused if released on bail would face the trial and whether he is likely to abuse or misuse the privilege so granted, It is pointed out that a period of two months has elapsed since the accused was released on bail and there is no such averment or allegation made by the investigating agency that the accused has in any way abused or misused the privilege so granted to him. In support of his arguments, the learned Counsel relied upon the observations made in the case of State of H.P. v. Nand Lal, 1989 (2) Sim LC 197 and Bhagirath Judeja v. State of Gujarat, AIR 1984 SC 372. 5. I have carefully considered the contentions raised by the learned Counsel for the parties. I have also carefully gone through the record. 5. I have carefully considered the contentions raised by the learned Counsel for the parties. I have also carefully gone through the record. The allegations made by the prosecutrix are of serious nature However, at the same time no post-release misconduct on the part of the accused has been complained of by the investigating agency in the form of his not having associated in the investigation of the case. Nor it is their case that the accused in any way attempted to temper with the prosecution evidence or intimidate any. one of the witnesses or he ever tried to flee away from the ultimate trial of the case It is also well established that the considerations at the time of the grant of bail are different than that when an application for the cancellation of bail is to be considered by the court. Underlying objects of sections 438 or 439, Cr.P.C. are to be viewed as to whether a person is likely to abscond or whether he is likely to misuse or abuse the privilege and if from the facts and circumstances of the case the answer to these questions appears to be in the negative, the bail is to be refused. At the same time, in case of heinous offences like rape, murder etc. the court should not allow themselves to be misled into the use of this section with misplaced leniency. It is also true that while granting bail, the court should be liberal as the accused has a right to bail under Article 21 of the Constitution, which provides that no such person shall be deprived of his life and personal liberty except according to the procedure established by law. However, the question with respect to the grant of bail depends upon the circumstances of each case, Grant or refusal of bail vary with the facts and circumstances of a particular case. 6. In the instant case as per the prosecution version the prosecutrix was removed by the respondent No.1 with the help of two other persons who remained unidentified till date and she was taken to various places as referred to above, though under the pretext of marriage to be solemnised between respondent No.1 and the prosecutrix. 6. In the instant case as per the prosecution version the prosecutrix was removed by the respondent No.1 with the help of two other persons who remained unidentified till date and she was taken to various places as referred to above, though under the pretext of marriage to be solemnised between respondent No.1 and the prosecutrix. Perusal of the F.I.R. shows that the complainant had come from Barotiwala to his house at 11 a.m. and after enquiring about his daughter and making efforts to search her, he lodged the report at 6.30 p. m. on that date. The statement of the prosecutrix coupled with that of Neelam Kaur and the recovery of other prosecution witnesses belonging to Jallandhar coupled with the recovery of the prosecutrix at her house, do show that respondent No.1 was in the company of the girl, but under what circumstances, is yet to be decided on merits. Without expressing any opinion regarding the above said facts, else it irate ultimately affect the decision on merits, it is obvious from the perusal of the impugned order that the learned Sessions Judge has, without any opinion expressed by the doctor, observed that the prosecutrix was found used to sexual intercourse, No such opinion has been given by the doctor concerned. The other factors that no injury was found on the private part of the prosecutrix is also partially contrary to the opinion expressed by the medical expert. As observed above, it is true that the considerations are different, but keeping in view the prevailing lawlessness and also the increasing crime rate in respect of rape, molestation etc. and seriousness of the offence in question, which facts have not been taken into consideration by the learned Sessions Judge, to my mated, he appears to have committed gross error in exercising his discretion by releasing respondent No. 1 on bail. No doubt, about two months period in between has elapsed and there is no allegation on behalf of the investigation agency as to the abuse or misuse of the privilege so granted to him, yet the offence in question having been committed against an innocent girl, requires to be seriously viewed. No doubt, about two months period in between has elapsed and there is no allegation on behalf of the investigation agency as to the abuse or misuse of the privilege so granted to him, yet the offence in question having been committed against an innocent girl, requires to be seriously viewed. It is well-settled that if the High Court comes to the conclusion that the bail has been granted to the accused by a lower Court which smacks of arbitrariness or perversity on its part, then the High Court has a duty to cancel the bail and to order arrest of the accused in the exercise of the powers under sub-section (2) of section 439, Cr.P.C. At this stage, the circumstances under which the bail may be cancelled may be enumerated as under : 1. When the accused was found tampering with the evidence either during the investigation or during the trial. 2. When the person on bail commits similar offence or any heinous offence during the period of bail. 3. When the accused has absconded and trial of the case gets delayed on that account. 4. When the offence so committed by the accused, that had created serious law and order problem in the society and accused had become a hazard on the peaceful living on the people. 5. If the High Court finds that the lower Court granting bail has exercised its judicial power wrongly. 6. If the High Court or Sessions Court finds that the accused has misused the privilege of bail. 7. If the life of the accused itself be in danger. 7. No doubt, Shri Ajay Sharma, learned Counsel for respondent No. 1 has vehemently urged that the approach of the court in the matter of bail is not that the accused should be detained by way of punishment, but it is whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour. This submission, in view of the gravity of the offence so committed, cannot have weightage over the fact that the society particularly the weaker section are to be protected and their confidence in the administration of law and justice has to be reinforced. This submission, in view of the gravity of the offence so committed, cannot have weightage over the fact that the society particularly the weaker section are to be protected and their confidence in the administration of law and justice has to be reinforced. It is from that point of view also that the gravity and nature of the offence committed has also to be viewed at the time of grant or refusal of the bail. In the circumstances, I am in agreement with the submissions made by the learned Counsel for the petitioner. The application is allowed. The bail granted by the learned Sessions Judge is hereby cancelled. The bail bonds furnished by the respondent No.1 are cancelled and he is directed to surrender forthwith and in the event the accused does not surrender then appropriate steps for apprehending him be taken in accordance with law. The application stands disposed of. Application allowed.