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2019 DIGILAW 2285 (RAJ)

Madan Mohan Meena v. State of Rajasthan

2019-08-26

PANKAJ BHANDARI

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JUDGMENT : Pankaj Bhandari, J. 1. Complainant-Petitioner has preferred this Criminal Bail Cancellation Application seeking cancellation of bail granted to Respondents No. 2 & 3. 2. It is contended by counsel for the complainant-petitioner that an F.I.R. was lodged by the petitioner on 11.10.2014 with the specific allegation that daughter of prosecutrix has been kidnapped and raped by the Respondents No. 2 & 3. 3. It is contended that statement of prosecutrix was also recorded under Section 161 Cr.P.C. & 164 Cr.P.C., wherein she alleged that she was forcefully taken away by Respondents No. 2 & 3 and was subjected to rape at Sawai Madhopur. 4. It is further contended that respondents have close relations with a Senior Police Officer and Custom Officer and for that reason, Police had not proceeded against them. 5. It is contended that Police submitted charge-sheet against Janak Singh & Vimlesh and did not proceed against Respondents No. 2 & 3, in spite of specific statement of the prosecutrix. An application under Section 193 Cr.P.C. was moved by the complainant which was allowed by the Court and cognizance was taken against Respondents No. 2 & 3 and they were summoned by non-bailable warrants. 6. Aggrieved by the order passed by the Court below on 19.11.2016, respondents preferred Criminal Revision Petition before the High Court which was allowed by the High Court and Respondents No. 2 & 3 were directed to surrender before the Trial Court and move application for regular bail. Further direction was given by the High Court that bail application will be considered and allowed by the Court on the same day on which it is moved. 7. It is contended that aggrieved by the order of the High Court dated 28.04.2017 complainant preferred an SLP before the Apex Court. The Criminal Appeal was allowed by the Apex Court and the order of the High Court to the extent, a direction was given to allow the bail application, was set-aside. 8. It is contended that bail application of Respondents No. 2 & 3 was granted without considering the merits of the case. Court below had not considered Section 29 of the POCSO Act which draws a presumption against the accused persons. 9. Counsel for the petitioner has placed reliance on "State of Bihar vs. Raj Ballav Prasad" 2017 (2) SCC Page 178. 10. Court below had not considered Section 29 of the POCSO Act which draws a presumption against the accused persons. 9. Counsel for the petitioner has placed reliance on "State of Bihar vs. Raj Ballav Prasad" 2017 (2) SCC Page 178. 10. Counsel for the Respondent has opposed the Criminal Bail Cancellation Application. It is contended that Police after due investigation had submitted charge-sheet against Janak Singh and Vimlesh. As per the mobile tower location, respondents were not with the prosecutrix at the time of the alleged occurrence and presence of Janak Singh and Vimlesh was established with the prosecutrix and accordingly Police had submitted charge-sheet against Janak Singh and Vimlesh. 11. It is also contended that bail application of respondents was allowed by the Trial Court on 30.05.2017 i.e. prior to the date of passing of the order by the Apex Court on 14.12.2017. 12. It is further contended that respondents are not having any relation with any Senior Police Officer or Custom Officer. 13. It is also contended that complainant is having enmity with the respondents due to some prior dispute and there is no ground for cancellation of bail. 14. Counsel for the respondents has placed reliance on "Manjit Prakash Vs. Shobha Devi 2008 AIR (SCW) Page 5099" "Subhendu Mishra vs. Subrat Kumar Mishra 2000 SCC (Cri) 1508." 15. I have considered the contentions and have perused the judgments cited by the parties. 16. Apex Court in "Manjit Prakash Vs. Shobha Devi" (supra) has held that cancellation of bail is a harsh order because it takes away the liberty of an individual and is not to be lightly resorted to. 17. Apex Court in "Subhendu Mishra vs. Subrat Kumar Mishra" (supra) relying on judgment "Dolat Ram vs. State of Haryana" has held that once bail is granted should not be cancelled in a mechanical manner. 18. Judgment cited by counsel for the petitioner "State of Bihar vs. Raj Ballav Prasad" (supra) was a case where the Apex Court cancelled the bail granted by the High Court. Apex Court referred to "Kanwar Singh Meena vs. State of Rajasthan & Anr. 2012 SCC 180 " wherein Apex Court held that the High Court or the Sessions Court can cancel bail in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. Apex Court referred to "Kanwar Singh Meena vs. State of Rajasthan & Anr. 2012 SCC 180 " wherein Apex Court held that the High Court or the Sessions Court can cancel bail in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If the court granting bail ignores relevant materials indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions Court would be justified in cancelling the bail. Such orders are against the well recognized principles underlying the power to grant bail. Such orders are legally infirm and vulnerable leading to miscarriage of justice and absence of supervening circumstances such as the propensity of the accused to tamper with the evidence, to flee from justice, etc. would not deter the court from cancelling the bail. The High Court or the Sessions Court is bound to cancel such bail orders particularly when they are passed releasing accused involved in heinous crimes because they ultimately result in weakening the prosecution case and have adverse impact on the society. 19. In the light of above judgments, reverting to the facts of this case, in the F.I.R. there was specific allegation against Respondents No. 2 & 3 of abducting the prosecutrix and of committing rape upon her. In her statement under Section 164 Cr.P.C. also, prosecutrix specifically levelled allegations against Respondents No. 2 & 3. Court below while granting bail did not go into the merits of the case, rather it allowed the bail, as there was direction by the High Court to consider and allow the bail application. The order passed by the High Court to the extent it directed the Court below to consider and allow the bail application, was set-aside by the Apex Court. However, since the Court below had already allowed the bail application and no application was moved by the respondents for grant of bail before the Court, the Court below could not comply with the directions given by the Apex Court to consider the bail application on merits. 20. However, since the Court below had already allowed the bail application and no application was moved by the respondents for grant of bail before the Court, the Court below could not comply with the directions given by the Apex Court to consider the bail application on merits. 20. As per Section 29 of the POCSO Act, 2012, if a person is prosecuted for committing an offence under Section 3, 5, 7 & Section 9 of the Act, the Court shall presume that such person has committed the offence, unless the contrary is proved. 21. There being a statement of the prosecutrix recorded under Section 164 Cr.P.C., wherein she has made specific allegations against the respondents. Plea of alibi raised by the respondents on the basis of tower location or statement of witnesses recorded by the Police, cannot come in aid of the respondents at this stage. 22. It is true that cancellation of bail is harsh order but equally if a bail is granted to a person accused of a heinous offence that is committing gang rape with a child, the same would have an adverse impact on the society. 23. Bail was granted by the Trial Court on the basis of directions given by the High Court which direction has been set-aside by the Apex Court. On the merits of the case, Respondents No. 2 & 3 are not entitled to grant of bail. Hence, the bail granted to the respondents vide order dated 30.05.2017 is quashed and set-aside and bail cancellation application is allowed. 24. Trial Court is directed to take the Respondents No. 2 & 3 in custody.