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2024 DIGILAW 497 (MP)

Victim A. v. State Of Madhya Pradesh

2024-07-11

DINESH KUMAR PALIWAL

body2024
ORDER : (Dinesh Kumar Paliwal, J.) This is an application filed by the defacto prosecutrix/victim in FIR No.10/2023 dated 07.01.2023 registered at Police Station – Bamhani, District Mandla (M.P.) to cancel the bail granted to the accused in the above crime. The accused is the second respondent in this application. 2. I have heard learned counsel for the applicant/victim, the learned Government Advocate as well as learned counsel appearing for the second respondent/accused. 3. It is submitted by learned counsel for the applicant/victim that as per order dated 16.08.2023 passed in M.Cr.C. No.23496/2023, this Court granted bail to the second respondent/accused in FIR No.10/2023 dated 07.01.2023, registered at Police Station Bamhani, District Mandla (M.P.) subject to conditions enumerated under Section 437(3) of the Cr.P.C. It was made clear that in case of bail jump and breach of any of the conditions, the bail order shall become ineffective. It is submitted that respondent No.2/accused is continuously threatening the applicant/victim after coming out of jail and pressurizing her to compromise and withdraw the case. It is contended that she attempted to file a complaint with Bamhani Police Station, but the Police did not register the FIR and just recorded NCR under Section 155 of the Cr.P.C. It is stated that on 14.10.2023, at around 11.p.m., the accused reached the prosecutrix’s house with a sword in his hand and threatened her to withdraw the case. When she made a call to Police, the Police reached at the spot and arrested the accused and registered a case under Section 25 of the Arms Act, FIR No.502/2023 dated 14.10.2023 was registered. He was produced before the Court of Judicial Magistrate First Class, but despite opposition of the applicant/victim, the Trial Court released him on bail. It is further submitted that she moved an application before the Trial Court on 16.10.2023 to forfeit the bail bonds of the respondent No.2/accused and send him to jail but Trial Court i.e. POCSO Court has not taken any action so far. The accused is married, having three kids and is 28 years old. After release on bail, respondent No.2 has threatened and abused her. He has disturbed her mental peace. Therefore, it is prayed that bail order dated 16.08.2023 granting bail to the accused be cancelled and he be committed to jail. 4. The accused is married, having three kids and is 28 years old. After release on bail, respondent No.2 has threatened and abused her. He has disturbed her mental peace. Therefore, it is prayed that bail order dated 16.08.2023 granting bail to the accused be cancelled and he be committed to jail. 4. Learned Additional Public Prosecutor contended that second respondent herein is involved in one other case after his release on bail. Therefore, order granting bail be cancelled. 5. Opposing cancellation of bail, learned counsel for accused/second respondent submitted that the second respondent did not violate any of the conditions imposed by this Court. It is submitted that prosecutrix has already been examined before the trial Court long back on 22.06.2023 and till now four witnesses have been examined. Hence, when prosecutrix has already been examined on 22.06.2023, the respondent No.2 had no reason to abuse and threat her on 10.10.2023 and 13/14.10.2023. It is contended that despite issuance of coercive processes by the Trial Court, rest of the witnesses are deliberately not appearing before the Trial Court and just to pressurize the respondent No.2, false complaints have been made against him. N.C.R. (Annexure A/3) has been lodged by prosecutrix on 10.10.2023, complaining that on 29.09.2023 Prahlad Nageshwara came in front of her house and was threatening to beat. In so far as FIR dated 14.10.2023 (Annexue A/4) is concerned, in it, it is mentioned that accused was threatening to victim and her father to change their version before the Trial Court. As the prosecutrix has already been examined long back on 22.06.2023, accused/respondent No.2 had no reason to threat them to change their evidence before the Trial Court as victim evidence has already been recorded. The application for cancellation of bail has been filed without any cogent and sufficient grounds, therefore, he has prayed for dismissal of the same. 6. The only question to be considered herein is whether the second respondent/accused herein violated the bail conditions so as to cancel his bail. It is true that cancellation of bail is a harsh order and, therefore, the same cannot be done in a casual manner. 6. The only question to be considered herein is whether the second respondent/accused herein violated the bail conditions so as to cancel his bail. It is true that cancellation of bail is a harsh order and, therefore, the same cannot be done in a casual manner. For cancelling bail once granted, the Court must consider whether any supervening circumstances have arisen or conduct of the accused post grant of bail demonstrates that it is no longer conducive to a fair trial to permit him to retain his freedom by enjoying the concession of bail during trial. To put it differently, in ordinary circumstances, this Court would be loath to interfere with an order granting bail. 7. The law regarding cancellation of bail has already been settled. The Apex Court in Myakala Dharmarajam and others Vs. State of Telangana and another (2020) 2 SCC 743 has relied on the decision in the case of Reghuveer Singh Vs. State of Bihar (1986) 4 SCC 481 and held :- Bail can be cancelled where (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation, (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (vii) attempts to place himself beyond the reach of his surety, etc. The above grounds are illustrative and not exhaustive. It must also be remembered that rejection of bail stands on one footing but cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence it must not be lightly resorted to. 8. In Mahipal Vs. Rajesh Kumar alias Polia and another (2020) 2 SCC 118 , the Supreme Court has observed :- 16. The considerations that guide the power of an appellate court in assessing the correctness of an order granting bail stand on a different footing from an assessment of an application for the cancellation of bail. The correctness of an order granting bail is tested on the anvil of whether there was an improper or arbitrary exercise of the discretion in the grant of bail. The test is whether the order granting bail is perverse, illegal or unjustified. The correctness of an order granting bail is tested on the anvil of whether there was an improper or arbitrary exercise of the discretion in the grant of bail. The test is whether the order granting bail is perverse, illegal or unjustified. On the other hand, an application for cancellation of bail is generally examined on the anvil of the existence of supervening circumstances or violations of the conditions of bail by a person to whom bail has been granted. In Neeru Yadav v State of Uttar Pradesh [ (2014) 16 SCC 508 ] the accused was granted bail by the High Court. In an appeal against the order of the High Court, a two judge Bench of this Court surveyed the precedent on the principles that guide the grant of bail. Justice Dipak Misra (as the learned Chief Justice then was) held: ....It is well settled in law that cancellation of bail after it is granted because the accused has misconducted himself or of some supervening circumstances warranting such cancellation have occurred is in a different compartment altogether than an order granting bail which is unjustified, illegal and perverse. If in a case, the relevant factors which should have been taken into consideration while dealing with the application for bail and have not been taken note of bail or it is founded on irrelevant considerations, indisputably the superior court can set aside the order of such a grant of bail. Such a case belongs to a different category and is in a separate realm. While dealing with a case of second nature, the Court does not dwell upon the violation of conditions by the accused or the supervening circumstances that have happened subsequently. It, on the contrary, delves into the justifiability and the soundness of the order passed by the Court..… 9. It is thus well settled that once a bail is granted to an accused, the same can only be cancelled if it is shown that the bail order suffers from infirmities or the accused while on bail has misused his liberty and has acted in such a manner which is prejudicial to the case of prosecution. Cancellation of bail is a harsh order, as it interferes with the liberty of individual and thus cannot be restored to lightly. 10. In Dolat Ram and others Vs. Cancellation of bail is a harsh order, as it interferes with the liberty of individual and thus cannot be restored to lightly. 10. In Dolat Ram and others Vs. State of Haryana, (1995) 1 SCC 349 , the Hon’ble Apex Court has observed as follows : “Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of Justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. These principles, it appears, were lost sight of by the High Court when it decided to cancel the bail, already granted. The High Court it appears to us overlooked the distinction of the factors relevant for rejecting bail in a non-bailable case in the first instance and the cancellation of bail already granted.” 11. In Dataram Singh Vs State of U.P. and another, (2018) 3 SCC 22 , the Hon’ble Apex Court observed as under : “It is also relevant to note that there is difference between yardsticks for cancellation of bail and appeal against the order granting bail. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of bail already granted. Generally speaking, the grounds for cancellation of bail are, interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concessions granted to the accused in any manner. These are all only few illustrative materials. Generally speaking, the grounds for cancellation of bail are, interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concessions granted to the accused in any manner. These are all only few illustrative materials. The satisfaction of the Court on the basis of the materials placed on record of the possibility of the accused absconding is another reason justifying the cancellation of bail. In other words, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial.” 12. The Hon’ble Apex Court in the case of P. Vs. State of Madhya Pradesh and another, AIR 2022 SC 2183 considered some of the circumstances where bail granted to the accused can be cancelled under Section 439(2) of Cr.P.C. It has been held as under: “a) If he misuses his liberty by indulging in similar /other criminal activity; b) If he interferes with the course of investigation; c) If he attempts to tamper with the evidence; d) If he attempts to influence/threaten the witnesses; e) If he evades or attempts to evade Court proceedings. f) If he indulges in activities which would hamper smooth investigation; g) If he is likely to flee from the country; h) If he attempts to make himself scarce by going underground and/or becoming unavailable to the investigating agency; i) If he attempts to place himself beyond the reach of his surety; j) If any acts may emerge after the grant of bail which are considered unconducive to a fair trial.” 13. Coming to the facts of this case, this Court granted bail to the second respondent, who is the accused in FIR No.10/2023, dated 07.01.2023, registered at Police Station – Bamhani, District Mandla (M.P.) for the commission of offence punishable under Sections 363, 366, 366-A, 376(2)(n) of IPC and Sections 3,4,5j(ii), 5m, 6 of Protection of Children from Sexual Offenes Act, 2012. In first complaint (Annexure A/3), which is about incident dated 29.09.2023 is about extending threat to beat to victim and her father. In first complaint (Annexure A/3), which is about incident dated 29.09.2023 is about extending threat to beat to victim and her father. It is to be noted that incident is alleged to have taken place on 29.09.2023 whereas NCR was lodged almost after 11-12 days of the incident. Second FIR (Annexure A/4) is about incident dated 13.10.2023 which took place at 11-11.30 p.m. and in this case accused was found in possession of one sword. 14. Even if for the sake of arguments, both complaints are taken as true, even then this fact cannot be overlooked that prosecutrix has already been examined and cross-examined fully before the Trial Court long back on 22.06.2023. In first case, NCR was lodged on 10.10.2023 almost after 11 days of the incident and second incident is of 13.10.2023 almost after 03 months and 15 days of recording of evidence of the prosecutrix. Therefore, when prosecutrix has already been examined before the Trial Court, the allegations that respondent No.2 is threatening her and her parents for changing their version and not tendering evidence, does not inspire confidence. 15. This Court had called status report from the Trial Court and on perusal of the status report, it is revealed that prosecutrix, her mother, Secretary, Gram Panchayat and Teacher have already been examined. In total 04 witnesses have been examined and after 23.01.2024 witnesses are not appearing for tendering evidence before the Trial Court despite issuance of bailable warrants. 16. It is settled that once a bail is granted to an accused, the same can only be cancelled if it is shown that the bail order suffers from infirmities or the accused while on bail has misused his liberty and has acted in such a manner which is prejudicial to the case of prosecution. Cancellation of bail is a harsh order, as it interferes with the liberty of individual and thus cannot be restored to lightly. As already discussed, in the case on hand, prosecutrix, her mother and two other witnesses have already been examined, therefore after recording their evidence, the allegation that accused is threatening the prosecutrix and others to change the evidence does not inspire confidence. In such circumstances, the application for cancellation of bail appears to be without any logic and reason. Thus, I find no justification to cancel the bail of the accused. In such circumstances, the application for cancellation of bail appears to be without any logic and reason. Thus, I find no justification to cancel the bail of the accused. It also cannot be overlooked that except prosecutrix who has already been examined, no other prosecution witness has made any application or has lodged any FIR to the police or to some other authority that respondent/accused ever threatened or intimidated him in any manner. 17. For the aforesaid reasons, I find no substance in the submissions put forth by learned counsel for the victim/applicant. As applicant/victim has not been able to make out a case that respondent No.2/accused has misused the liberty of bail granted by this Court. Therefore, the bail granted earlier to respondent No.2 – Prahlad Nageshwara vide order dated 16.08.2023 passed in M.Cr.C. No.23496/2023 cannot be cancelled. 18. Consequently, the present application under Section 439(2) of Cr.P.C. stands dismissed.