High Court
Case Details
Court No. - 66 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 3130 of 2022 Applicant :- Pawan Opposite Party :- State Of Up Principal Secretary Home Affair Gov. And Another Counsel for Applicant :- Ajendra Kumar,Bharat Bhushan Paul,Saurabh Paul Counsel for Opposite Party :- G.A.,Mukesh Kumar Maurya Hon'ble Saurabh Shyam Shamshery,J. 1. Heard Sri Bharat Bhushan Paul, learned counsel for applicant and Sri K.P. Pathak, learned A.G.A. for State. None appeared on behalf of Complainant
Legal Reasoning
B. "The considerations in granting bail are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood of the accused fleeing from justice; of repeating the offence; of jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many valuable factors, cannot be exhaustively set out." [Gurcharan Singh v. State (Delhi Administration), (1978) 1 SCC 118)]. "There is no strait jacket formula which can ever be prescribed as to what the relevant factors could be. However, certain important factors that are always considered, inter-alia, relate to prima facie involvement of the accused, nature and gravity of the charge, severity of the punishment, and the character, position and standing of the accused" [State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21]. C. "....It has also to be kept in mind that for the purposes of granting the bail the Legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge." (Prahlad Singh Bhati vs. NCT of Delhi and Ors:( 2001) 4 SCC 280). D. "....It is a fundamental premise of open justice, to which our judicial system is committed, that factors which have weighed in the mind of the Judge in the rejection or the grant of bail are recorded in the order passed. Open justice is premised on the notion that justice should not only be done, but should manifestly and undoubtedly be seen to be done. The duty of Judges to give reasoned decisions lies at the heart of this commitment...." (Mahipal v. Rajesh Kumar, (2020) 2 SCC 118) and also (Ms. Y versus State of Rajasthan and Anr :2022 SCC OnLineSC 458). E. "....There cannot be elaborate details recorded to give an impression that the case is one that would result in a conviction or, by contrast, in an acquittal while passing an order on an application for grant of bail. However, the Court deciding a bail application cannot completely divorce its decision from material aspects of the case such as the allegations made against the accused; severity of the punishment if the allegations are proved beyond reasonable doubt and would result in a conviction; reasonable apprehension of the witnesses being influenced by the accused; tampering of the evidence; the frivolity in the case of the prosecution; criminal antecedents of the accused; and a prima facie satisfaction of the Court in support of the charge against the accused." (Manoj Kumar Khokhar (2022)3 SCC501). 7. In view of above discussion on law and submissions made by learned counsel for parties, it is not in dispute that the victim is a minor girl and she was aged about 16 years and 9 months on the date of occurrence. Though she has not supported the case of prosecution in her statement recorded under Section 161 Cr.P.C., however, she has specifically stated in her statement recorded under Section 164 Cr.P.C. that while she went to attend nature's call, she was kidnapped by applicant and co-accused, Sanju and forcefully took her to field where first co-accused, Sanju committed rape and thereafter applicant also committed rape. Her mouth were tied by dupatta and when her parents catch hold, the applicant took her to other village wherein she was beaten by the villagers as well as family members of applicant and co-accused. Therefore, involvement of applicant is prima facie made out for committing offence of abduction and under Section 376D IPC, which is punishable for a term which shall not be less than 20 years and may extend to life. So far as medical evidence is concerned, it has to be considered at the time of trial and it is not safe to consider it at the time of bail. 8. In view of above, no case of bail is made out. The application is accordingly rejected. Order Date :- 9.5.2022 AK Digitally signed by AWADESH KUMAR Date: 2022.05.10 13:32:23 IST Reason: Location: High Court of Judicature at Allahabad
Arguments
though name of Sri Mukesh Kumar Maurya, Advocate was shown in list and also flashed on Digital Display Board of Court for more than half an hour. 2. Applicant-Pawan, has approached this Court by way of filing the present Criminal Misc. Bail Application under Section 439 Cr.P.C. after rejection of his Bail Application vide order dated 03.12.2021, passed by Incharge Special Judge (POCSO Act), Mainpuri, in Case Crime No.308 of 2021, under Sections 363, 366, 506, 376D I.P.C. and 5/6 POCSO Act, Police Station Ghiror, District Mainpuri. 3. The applicant alongwith co-accused was named in the FIR lodged by father of the victim on 22.10.2021 under Sections 363, 366, 506 IPC that victim was in talking terms with co-accused, Sanju and on the date of occurrence applicant and co-accused, Sanju abducted her. Later on the basis of statement of victim recorded under Sections 161 and 164 Cr.P.C. wherein she alleged that she was abducted by applicant and co-accused and first co-accused raped her and later on applicant also raped her and accordingly charge sheet was filed under Sections 363, 366, 506, 376D IPC and 5/6 POCSO Act. 4. Learned counsel for applicant submitted that victim is aged about 16 years and 9 months on the date of occurrence. The victim was a friend of co-accused, Sanju and applicant has no role in kidnapping as well as false allegation has been made by victim of committing rape. He also relied on the statement recorded under Section 161 Cr.P.C. wherein neither the case of abduction nor rape was disclosed. Learned counsel further submits that it is a case wherein parents of victim assaulted her as she was caught talking with co-accused and when she went alongwith co-accused, they were apprehended by family members of victim. He pointed out that in the medical report the hymn was found intact and no sexual violence was happened to her. Lastly, it is submitted that applicant has no criminal history and he is languishing in jail since 22.10.2021 and in case, he is released on bail, he will not misuse the liberty of bail and will cooperate in trial. 5. The above submissions are vehemently opposed by learned A.G.A. and learned counsel appearing for Complainant. They submitted that victim is a minor girl and according to her educational documents wherein her date of birth is 20.01.2005, i.e., on the date of date of occurrence she was about 16 years old. Though she is not mentioned any offence in her statement recorded under Section 161 Cr.P.C., however, she gathered courage to tell truth before Magistrate and specifically stated in her statement recorded under Section 164 Cr.P.C. about abduction as well as offence of rape by applicant as well as co- accused, Sanju. 6. LAW ON BAIL A. "The basic rule may perhaps be tersely put as bail, not jail" (State Of Rajasthan, Jaipur vs Balchand @ Baliay : (1977 AIR 2447, 1978 SCR (1) 535). Power to grant bail under Section 439 of CrPC, is of wide amplitude. The court is bestowed with considerable but not unfettered discretion, which calls for exercise in a judicious manner and not as a matter of course and not in whimsical manner. (see Ram Govind Upadhyay Vs Sudarshan Singh :(2002) 3 SCC 598 and Neeru Yadav Vs State of U.P.:(2016)15 SCC 422).