State Of Rajasthan, Jaipur v. Balchand
Case Details
Court No. - 66 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 31735 of 2021 Applicant :- Rohit Yadav Opposite Party :- State of U.P. and Another Counsel for Applicant :- Mukesh Kumar Counsel for Opposite Party :- G.A., Bratendra Singh Hon'ble Saurabh Shyam Shamshery,J.
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]. In Manno Lal Jaiswal vs. The State of U.P. and others, 2022 SCC OnLine SC 89 Supreme Court has observed that, "when the Accused were charged for the offences punishable under Section 149 of the Indian Penal Code also and when their presence has been established and it is stated that they were part of the unlawful assembly, the individual role and/or overt act by the individual Accused is not significant and/or relevant." 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 the backdrop of above discussion on law and submissions made by learned counsel for parties, it is a case where the victim is aged about less than 16 years, raped by one of the co-accused while the applicant not only catch hold her legs but put her under threat by putting country made pistol on the victim. In case of conviction the minimum sentence under Section 376(3) IPC is 20 years. Considering the specific allegation against applicant by victim in her statement recorded under Section 164 Cr.P.C. as well as the fact that victim was less than 16 years at the time of occurrence and there are documents in support of date of birth of victim, the applicant, who has committed heinous offence, is not entitled for bail. 8. The application is accordingly rejected. Order Date :- 12.5.2022 AK Digitally signed by AWADESH KUMAR Date: 2022.05.13 13:04:48 IST Reason: Location: High Court of Judicature at Allahabad
Arguments
1. Heard Sri Mukesh Kumar, learned counsel for applicant, Sri Munne Lal, learned A.G.A. for State and Sri Bratendra Kumar, Advocate for Informant. 2. Applicant-Rohit Yadav, 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 06.07.2021, passed by Additional/ Special Judge (POCSO Act), Mainpuri, in Case Crime No.247 of 2021, under Sections 376(3), 506 IPC and 3/4 POCSO Act, Police Station Bewar, District Mainpuri. 3. In the present case age of victim according to education document was about 16 years at the time of occurrence. The FIR was lodged on the basis of information given by mother of victim that applicant and co-accused, Harveer Yadav abducted the victim when she went to attend call of nature and took her at an isolated place where the applicant catch hold her legs and put her under threat of life by pointing country made pistol and other co-accused, Harveer Yadav committed rape. The above contents of FIR are also corroborated by statement of victim recorded under Section 164 Cr.P.C. 4. Learned counsel for applicant submits that according to the case of victim applicant has not raped her whereas the allegation of rape is on co-accused, Harveer Yadav, therefore, no case is made out against applicant under Section 376(3) IPC. Learned counsel for applicant also disputed the age of victim as in the medico legal examination her age was determined about 18 years and no external or internal injury was found on her body. 5. The above submissions are vehemently opposed by learned A.G.A. appearing for State. He submits that it is a consistent case of victim that applicant and co- accused not only forcefully took her to an isolated place but also threatened her for life by putting country made pistol and the applicant also hold the legs of victim when other co-accused committed rape. 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).