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Allahabad High Court · body

2007 DIGILAW 61 (ALL)

DIGVIJAI SINGH v. STATE OF U P

2007-01-09

SAROJ BALA

body2007
SAROJ BALA, J. This is an application for bail moved on behalf of the applicant Digvijai Singh indicted in case crime No. 229 of 1998 under Sections 323, 343, 376, 504 and 506 I. P. C. P. S. Daraganj District Allahabad. 2. Heard Shri G. S. Chaturvedi, learned Senior Counsel assisted by Shri S. F. A. Naqvi, learned Counsel for the applicant, Smt. Tabassum Hashmi, learned Counsel for the complainant, learned A. G. A. and have perused the record. 3. The brief facts of the case are that the complainants fourteen year old daughter was kidnapped on 22-4-1997 at 7 p. m. The First Information Report was lodged on 5-6-1997 at 3. 10 p. m. at P. S. Daraganj District Allahabad against the accused Sudhir Kumar Gupta alias Anna and others. The girl was intercepted by the police alongwith accused Sudhir Kumar Gupta alias Anna on 31-5-1997 and was medically examined on 2-6- 1997. Her statement under Section 164 Cr. P. C. was recorded on 3- 7-1997. Sudhir Kumar Gupta alias Anna filed a Habeas Corpus petition No. 26252 of 1997 impleading the victim as petitioner No. 1 (victim) against her mother and brother alleging her illegal detention and seeking her release from the custody of respondents No. 2 and 3. The girl (petitioner No. 1 to the writ petition) was produced by her mother (respondent No. 2 in the writ petition) before this Court. The statement of the girl was recorded by this Court wherein she made allegation of illegal detention at P. S. Daraganj from 31-5-1997 to 5-6-1997 and commission of rape by the applicant and other policemen. A inquiry was conducted by the Superintendent of Police in the this matter in pursuance of the order of this Court who found that the girl was illegally detained at P. S. Daraganj from 31-5-1997 to 5- 6-1997. This Court directed the registration of First Information Report against the applicant and co-accused nominated in the inquiry report. 4. The learned Counsel for the applicant submitted that the applicant is not named in the First Information Report lodged by the mother of the victim and the girl in her statement recorded under Section 164 Cr. P. C. stated nothing about the complicity of the applicant. The learned Counsel strenuously argued that the girl in her statement before this Court did not say that her statement under Section 164 Cr. P. C. stated nothing about the complicity of the applicant. The learned Counsel strenuously argued that the girl in her statement before this Court did not say that her statement under Section 164 Cr. P. C. was procured under duress or coercion. The learned Counsel inviting my attention to the G. D. entry dated 31-5-1997 at serial Nos. 32, 39 and 40 at 7. 20 p. m. , 9. 05 p. m. and 10. 25 p. m. argued that the girl was handed over to the police of P. S. Mahila by the police of Daraganj on 31-5-1997 and was sent for medical examination from P. S. Mahila on 2-6- 1997. The submission of the learned Counsel was that the girl was not detained at P. S. Daraganj from 31-5-1997 to 5-6-1997. The learned Counsel urged that radiological age of the girl is above nineteen years and no opinion about rape could be given. The learned Counsel argued that the girl was given in the custody of her mother on 5-6-1997 and entry in this regard was made in the G. D of P. S Daraganj at serial No. 35 on 5-6-1997 at 6. 10 p. m. The learned Counsel submitted that the victim did not cooperate with investigation and her statement under Section 161 Cr. P. C. could not be recorded. The learned Counsel urged that the applicant has been falsely implicated due to personal grudge. The contention of the learned Counsel was that orders were passed by his Court behind the back of the applicant. The learned Counsel argued that the applicant has retired from service and is leading a retired life at Varanasi. Lastly it was pointed out that the applicant is suffering from paralytic stroke, heart ailment and kidney problem and is undergoing treatment in jail hospital. 5. The learned A. G. A. and learned Counsel for the complainant submitted that the applicant misusing his position as S. H. O. P. S. Daraganj committed rape on minor girl by illegally detaining her at the police station. The learned Counsel urged that the girl having been produced before the Magistrate for her statement under Section 164 Cr. P. C. by the police of P. S. Daraganj, it is not a voluntary statement free from the taint of pressure, threat and coercion. The learned Counsel urged that the girl having been produced before the Magistrate for her statement under Section 164 Cr. P. C. by the police of P. S. Daraganj, it is not a voluntary statement free from the taint of pressure, threat and coercion. The learned Counsel argued that according to the High School certificate the age of the girl is fourteen years. The learned Counsel contended that the girl and her family members are being harassed and intimidated by the police personnel after the orders of this Court for the registration of First Information Report and her brother has been murdered. 6. I have taken into consideration the submissions advanced on behalf of both the parties. 7. The Apex Court in cases of State of U. P. through CBI v. Amar Mani Tripathi, 2006 (1) JIC 210 (SC) : (2005) 8 SCC 21 , Ram Govind Upadhyay v. Sudarshan Singh, 2002 (1) JIC 897 (SC) : (2002) 3 SCC 598 , Kalyan Chandra Sarkar v. Rajesh Ranjan, 2005 (2) JIC 692 (SC) : (2004) 7 SCC 528 and Anil Kumar Tulsiyani v. State of U. P. , 2006 (2) JIC 668 (SC) : 2006 (1) CAR (SC) 442, has laid down the broad principles and matters to be considered while deciding an application for bail as hereunder: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail. 8. The complicity of the applicant came to the fore from the statement of the girl/petitioner No. 1 recorded by this Court in Habeas Corpus Writ Petition No. 26252 of 1997 filed by co- accused/petitioner No. 2 Sudhir Kumar Gupta for seeking her custody. An inquiry was conducted by the Superintendent of police in compliance of the order of this Court. The allegation of the girl that she was illegally detained at P. S. Daragani from 31-5- 1997 to 5-6-1997 was found truthful by the Inquiry Officer. An inquiry was conducted by the Superintendent of police in compliance of the order of this Court. The allegation of the girl that she was illegally detained at P. S. Daragani from 31-5- 1997 to 5-6-1997 was found truthful by the Inquiry Officer. The girl in her statement before this Court made an accusation of commission of rape against the applicant who was then posted as S. H. O. at P. S. Daraganj District Allahabad and other police personnel. The statement of the girl under Section 164 Cr. P. C. cannot be said to be her voluntary statement made out of freewill as she was produced before the Magistrate by the police. The prosecutrix and her family members are being harassed, tortured and jailed since after the registration of First Information Report against the applicant and co-accused. The matter remained pending since long due to the intervention of the applicant and his associates and charge-sheet was filed on 7-11-2006. The applicant being a retired police official is in a position to use his liberty to subvert the justice or tamper with prosecution evidence by threatening and intimidating the prosecutrix and other witnesses. The commission of rape by a public servant on a woman in his custody by illegally detaining her at the police station is a serious offence and grant of bail to the applicant will erode the confidence of public in the administration of justice. In view of these facts and circumstances, I do not consider it to be a fit case for bail. The bail application moved on behalf of the applicant Digvijai Singh is hereby rejected. Application rejected. .