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2021 DIGILAW 1787 (RAJ)

Aarti v. State of Rajasthan

2021-09-21

MAHENDAR KUMAR GOYAL

body2021
JUDGMENT This appeal has been filed by the appellant seeking cancellation of bail granted to the accused-respondent No.2 vide order dated 18.08.2020 by the Special Court (POCSO Act), Sawai Madhopur. The respondent No.2 was arrested in connection with FIR No.47/2019 registered at Police Station Bamanwas District SawaiMadhopur for the offence(s) under Section(s) 363, 366-A of IPC and Section 3(2)(va) of the Scheduled Cases and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for brevity "the Act of 1989") and later on for the offences under Sections 363, 366, & 376-D IPC and Section 5/6 of the POCSO Act, 2012 (for brevity "the Act of 2012") and Section 3(2)(v) of the Act of 1989. Learned counsel for the complainant-petitioner submitted that vide order impugned dated 18.08.2020, the accused- respondent No.2 has been extended benefit of bail in a heinous offence ignoring the relevant material available in the case diary especially the statements of the prosecutrix recorded under Sections 161 CrPC as well as 164 CrPC which contained specific allegation against the accused of subjecting her to rape. He submitted that the learned Special Court has assigned three reasons for enlarging the respondent on bail i.e., (i). the accused respondent is not named in the FIR, (ii). the prosecutrix was produced in the police station by her father & (iii). the respondent was confined to custody for 21 days. Learned counsel for the petitioner contended that since the FIR was lodged by father of the prosecutrix as she was found missing, he was unaware of the offence committed by the respondent with her which could be revealed only after her statements were recorded under Sections 161 CrPC as well as 164 CrPC. He submitted that the factum of production of the prosecutrix in the police station by her father, by no stretch of imagination, could have been a relevant consideration for grant of bail to the respondent against whom there was allegation of subjecting the prosecutrix, a minor girl, to rape and similar is true with third reason assigned by the learned Speical Court i.e. incarceration of the accused for a period of 21 days. Learned counsel submitted that the bail application filed by co-accused Krishna Kumar, after filing of the charge-sheet, did not find favour with this Court and was dismissed as withdrawn vide order dated 28.06.2021. Learned counsel submitted that the bail application filed by co-accused Krishna Kumar, after filing of the charge-sheet, did not find favour with this Court and was dismissed as withdrawn vide order dated 28.06.2021. Drawing attention of this Court towards the material contained in the charge-sheet including the statement of the prosecutrix recorded under Section 164 CrPc, learned counsel submitted that case of the accused-respondent cannot be said to be on better-footing than that of co-accused Krishna Kumar. Relying on the judgments of the Hon'ble Apex Court of India in cases of Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav & Anr., (2004) 7 Supreme Court Cases 528, Dinesh M.N. (S.P) v. State of Gujarat, (2008) 5 Supreme Court Cases 66 & Kanwar Singh Meena v. State of Rajasthan & Anr. in Criminal Appeal No.1662 of 2012 (Arising out of Special Leave Petition (Crl.) No.155 of 2012) dated 16.10.2012 and Coordinate Bench judgment of this Court in case of Madan Mohan Meena v. State of Rajasthan & Ors. in S.B. Criminal Bail Cancellation Applicaiton No.41/2019 dated 26.08.2019, learned counsel canvassed that if an accused is extended benefit of bail by a Court ignoring the relevant material indicating his involvement in the offence or taking into consideration the irrelevant material, such order deserves to be set aside and benefit of bail is liable to be cancelled. He, therefore, prayed for cancellation of bail extended to the petitioner vide order dated 18.08.2020. Learned Public Prosecutor supporting the prayer made by the learned counsel for the complainant submitted that since the learned Special Court has not taken into consideration the relevant factors for grant of bail, the order impugned deserves to be quashed and set aside. Learned counsel for the respondent No.2 submitted that once he has been extended benefit of bail by the learned Special Court taking into consideration the relevant factors, this Court should be at loathe in cancelling the same. He submitted that while a doubt was cast by the complainant in the FIR against co-accused Krishna Kumar, it was bereft of any such doubt against the accused- respondent. He submitted that while a doubt was cast by the complainant in the FIR against co-accused Krishna Kumar, it was bereft of any such doubt against the accused- respondent. Relying on the judgments of this Court in cases of Kumari Shashi versus State of Rajasthan, 2008 (1) R.C.C. 04 & Smt. Rajbala v. State of Rajasthan, 2005 (1) R.C.C. 289, learned counsel submitted that since the order impugned is based on relevant consideration and does not suffer from any perversity, the same cannot be interfered with by this Court under Section 439(2) CrPC. He, therefore, prayed for dismissal of the appeal. Heard learned counsels for the parties and perused the record. Absence of doubt/allegation against the accused-respondent in the FIR, raises no presumption as to his false involvement inasmuch as the same was lodged by the father of the prosecutrix who was found missing in the morning of 12.02.2019. It is only after her recovery when her statements were recorded under Sections 161 CrPC as well as 164 CrPC, it transpired that the prosecutrix, a minor girl, was subjected to rape by the respondent. From the material on record, it is revealed that the prosecutrix was taken to Jaipur by the co-accused from where, on her information, she was brought back to her village by her relatives and hence, there was nothing unusual if she was produced in the police station by her father and in the considered opinion of this Court, it could not have been a relevant factor for grant of bail to the accused-respondent against whom there is allegation of subjecting a minor girl to rape. The learned Special Court, while extending the respondent the benefit of bail vide order dated 18.08.2020, has not taken into consideration the statements of the prosecutrix recorded under Sections 161 CrPC as well as 164 CrPC which contain specific allegation against him of subjecting her to rape. It is trite that statement of the prosecutrix recorded under Section 164 CrPC is one of the most relevant criteria which has to be taken into consideration while considering bail application of an accused for the offence under Section 376 IPC. In view of the gravity of offence, incarceration for 21 days was not such a long period furnishing a ground for grant of bail. There is another important aspect of the matter. In view of the gravity of offence, incarceration for 21 days was not such a long period furnishing a ground for grant of bail. There is another important aspect of the matter. As per Section 29 of the POCSO Act, 2012 (for brevity "the Act of 2012"), if a person is prosecuted for the commission of an offence under Section 3, 5, 7 & 9 of the Act of 2012, the Court shall presume that such person has committed the offence, unless the contrary is proved. In these circumstances, there was presumption of guilt of the accused-respondent and he could not have been extended benefit of bail by the learned Sessions Court without taking into consideration all the relevant factors especially the statements of the prosecutrix recorded under Sections 161 CrPC as well as 164 CrPC. The Hon'ble Apex Court in case of Kanwar Singh Meena (supra) has, after taking into consideration the earlier judgments in the cases of Gurcharan Singh & Ors. etc. v. State (Delhi Administration), 1978 (1) SCC 118 , Puran v. Rambilas & Anr., 2001 (2) RCR (Criminal) 801 & Dinesh M.N. (S.P.) (supra), held as under:- "Thus, Section 439 of the Code confers very wide powers on the High Court and the Court of Sessions regarding bail. But, while granting bail, the High Court and the Sessions Court are guided by the same considerations as other courts. That is to say, the gravity of the crime, the character of the evidence, position and status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of his tampering with the witnesses and obstructing the course of justice and such other grounds are required to be taken into consideration. Each criminal case presents its own peculiar factual scenario and, therefore, certain grounds peculiar to a particular case may have to be taken into account by the court. The court has to only opine as to whether there is prima facie case against the accused. The court must not undertake meticulous examination of the evidence collected by the police and comment on the same. Such assessment of evidence and premature comments are likely to deprive the accused of a fair trial. The court has to only opine as to whether there is prima facie case against the accused. The court must not undertake meticulous examination of the evidence collected by the police and comment on the same. Such assessment of evidence and premature comments are likely to deprive the accused of a fair trial. While cancelling bail under Section 439(2) of the Code, the primary considerations which weigh with the court are whether the accused is likely to tamper with the evidence or interfere or attempt to interfere with the due course of justice or evade the due course of justice. But, that is not all. The High Court or the Sessions Court can cancel bail even 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. Needless to say that though the powers of this court are much wider, this court is equally guided by the above principles in the matter of grant or cancellation of bail." In case of Smt. Rajbala (supra) a coordinate Bench of this Court dismissed the application seeking cancellation of bail wherein the sole ground was that the bail was granted within the period of 7 days from the date of arrest of the accused. Similarly, in case of Kumari Shashi (supra), a coordinate Bench of this Court declined to cancel the bail where the accused was extended benefit of bail vide a detailed order containing all the material facts and reasoning after taking into consideration the evidence on record such as medical evidence, the statements of the prosecution witnesses recorded by the Investigating Agency. Whereas, as held hereinabove, the accused-respondent was extended benefit of bail vide order impugned dated 18.08.2020 without taking into consideration the relevant factors and hence, the judgments have no applicability in the facts and circumstances of the case. Since, while extending accused respondent benefit of bail, in a heinous offence where a minor girl was subjected to gang rape, beside other offences, the learned Special Court did not take into consideration all the relevant factors germane for grant of bail and as a matter of fact, the order impugned dated 18.08.2020 is based on irrelevant consideration, the same cannot be sustained in the eye of law. In view of the aforesaid discussion, the criminal appeal is allowed. The order dated 18.08.2020 is quashed and set aside. The benefit of bail extended to the accused-respondent No.2 is cancelled. The accused-respondent No.2 shall surrender before the Jail Authorities within three days from today failing which the Superintendent of Police, Sawai Madhopur shall ensure his arrest and confinement to the Jail.