Nishant Sinha vs State Of U.P. on 17 November, 2018

[Cites 29, Cited by 1]

Allahabad High Court

Nishant Sinha vs State Of U.P. on 17 November, 2018

Bench: Dinesh Kumar Singh





HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 12									AFR
 
Case :- BAIL No. - 9702 of 2018
 
Applicant :- Nishant Sinha
 
Opposite Party :- State Of U.P.
 
Counsel for Applicant :- Meha Rashmi,Gantavya,Ritwick Rai
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Dinesh Kumar Singh,J.

1. The present bail application has been filed by the applicant in Crime No.252 of 2017: S.T. No. 427 of 2017 under Sections 342, 323, 504, 506, 354A, 354A(2), 420, 406, 376, 511, 120B IPC and Section 9(1)/9(p)/10 Protection of Children from Sexual Offences Act.

2. The complainant was working as Chief Security Officer at Babu Banarasi Das U.P. Badminton Academy, Vipin Khand, Gomti Nagar, (hereinafter referred to as 'the Academy') and vide resolution dated 12.02.2017 passed by the Executive Committee of U.P. Badminton Association, he had been authorized to lodge the FIR against the accused-applicant and his father.

3. It is alleged that the accused-applicant was illegally and unauthorizedly holding post of Officiating Secretary of U.P. Badminton Association and his father, Vijay Sinha was the Secretary of U.P. Badminton Association. Complaints had been received against them from the players especially from the female players that the accused-applicant misusing his power and position of his father had been exploited them physically and mentally. He had also collected money for issuing 'No Objection Certificate' for various purposes. His father had full support and protection to the accused-applicant.

4. To enquire the allegations against the accused, U.P. Badminton Association appointed one man Commission of a retired District Judge. The Enquiry Commission in its report had found the allegations against the accused correct and recommended for legal action against them. The Commission's Report dated 23.01.2017 and all complaints from the players were in safe custody of the U.P. Badminton Association.

5. Four female players have made specific allegations against the accused-applicant and his father for their physical and mental exploitation. One of the female players in her complaint has said that she and her brother had taken admission in the Academy together. After sometime, her brother was forced to leave the Academy. Thereafter, the accused-applicant offered her for free training. This offer, however, was declined by the player and her family members finding in the offer smell of corruption. Thereafter, the accused-applicant asked her to have relation with him which she refused. Thereafter, the accused-applicant forbade all the players of the Academy to practice with her. Under these circumstances, she decided to leave the Academy and when the accused-applicant came to know about it, he illegally confined her in the Academy and started physically and mentally abusing her. She was threatened by the accused-applicant that he was very powerful and her guardians would not be allowed to go alive from the Academy. It was also alleged that the accused-applicant said that he had already talked to the co-accused (his father) and she would never be able to play in future. She was made to stand for 6 hours continuously and she was beaten up on the instigation by the accused-applicant. The accused-applicant snatched her phone and deleted vulgar/ obscene messages sent to her by him. Thereafter, he deleted contacts, emails etc. In the night when the guardians of the said player said that they were going to lodge the FIR against the accused-applicant then he said that nobody was required to come and the said player was free to leave the Academy anytime. Thereafter only on the next day she was allowed to go out of the Academy. At that time she was 18 years of age.

6. Second complaint was made by a player from West Bengal. She came for short term coaching at the Academy. During the national championship, the accused-applicant and his father told the guardian of the said the player that she was a talented player. The accused-applicant offered her admission in the Academy. She was told about the wonderful facilities and was shown a dream of her bright future. The guardian of the said female player got convinced and admitted her in the Academy. Thereafter, the accused-applicant and his father pressurized the said player to leave West Bengal State and become the player of Uttar Pradesh State keeping in mind the better facilities in the Academy. After change of State, she was subjected to cruel mental and physical ragging. When the guardian of the player complained to the accused-applicant, ragging got reduced but the accused-applicant started giving indication that he is the only one protector of the players. He started making signs and giving indication to come close to her which had nothing to do with the Badminton. Some players who were involved in the ragging of the said player, said that she was subjected to severe ragging on the instigation of the accused-applicant. Thereafter, the accused-applicant tried to establish forcible physical relation with her and when it was opposed by her then the accused-applicant threatened the player and her guardian. The accused-applicant snapped her photos and tried to blackmail her for physical exploitation. The accused in connivance with each other tried to outrage her modesty and exploit her physically and for that reason she left the Academy. At the time of incident, this female player was only 16 years of age.

7. The third player in her complaint alleged that the accused-applicant used to exploit the female players by putting all kind of pressures. The female players would be beaten up by shoes, sticks and racquets. In the night he would call female players and tell them horror tales so that they agree for physical relationship with him.

8. The forth player who is also a National player and has been participating since 2009 Under-16 and Under 19 and in Senior Category in National and International Championship told that the accused-applicant had usurped the position of the Head of the Academy. When she opposed the evil design of the accused-applicant, she was thrown out of the Academy.

9. Allegations against the accused-applicant are at galore in the complaint of physical and sexual exploitation of the female players including allegations of corruption.

10. Heard Ms. Meha Rashmi, learned counsel for the accused-applicant and Mr. Rajesh Kumar Singh, learned AGA for the State.

11. The bail application (Bail No.3721 of 2018) of the co-accused, Vijay Prakash Sinha of the present applicant got rejected by this Court vide order dated 20.07.2017 which has been placed on record of the bail application as Annexure-18. Learned Trial Court has rejected the bail application of the present accused-applicant on the ground that when the co-accused whose role was only of abetment of the offence which alleged to have been committed by the present accused-applicant has been rejected by this Court, there was no ground to enlarge the present accused-applicant on bail. Charge-sheet has been filed and charges have been framed against the accused. The victims in their statements recorded under Section 164 Cr.P.C. have reiterated the allegations against the accused.

12. It is also relevant to mention here that Writ Petition No.5912(MB) of 2017 was filed for quashing of the same FIR before the Division Bench of this Court. Paras 13 and 14 of the order dated 22.03.2017 passed in the aforesaid Writ Petition are extracted hereinbelow:-

"13. Having gone through the contents of the impugned First Information Report, it prima facie becomes evident that a retired District and Sessions Judge was asked to conduct an enquiry as regards the veracity of allegations made by various girls who claimed to be victims of offence of sexual harassment. Their statements were recorded and an enquiry report was furnished which endorsed the actions of the accused. Shri Dwivedi on behalf of Investigating Agency has also pointed out that statements of the girls have been recorded which prima facie indicate commission of offence, not only by Nishant Sinha but also by his father Vijai Sinha, including of rape.

14. On going through the allegations in the impugned First Information Report also we find that the actions of Nishant Sinha were supported by his father Dr. Vijai Sinha. The petitioner is said to be absconding. "

The aforesaid writ petition was finally dismissed by this Court vide order dated 19.07.2017.

13. Learned counsel for the accused-applicant submits that the lodging of the FIR against the accused-applicant and his father is actuated with malice by the rival group of the U.P. Badminton Association. The people opposed to the applicant and his father were always for look out to grab the Association and threw the present accused-applicant and his father out from the Association. She further submits that the FIR has been lodged belatedly and the offences under Protection of Children from Sexual Offences Act as alleged in the FIR are not made out against the accused-applicant.

14. On the other hand, learned AGA, Sri Rajesh Kumar Singh submits that the delay is not vital in the present case as victims were the players who were housed in the Academy and the accused-applicant was in domitable position with money and muscle power. The hapless victims had suffered at the hands of the accused-applicant and his father. The accused have ruined the career of the talented players who had very bright future in the sport. When the charges have already been framed against the accused-applicant, it is not the stage where the accused-applicant can argue that the offences under the Protection of Children from Sexual Offences Act are not made out against him. He further submits that considering the seriousness of allegations, the position of the accused-applicant, the age of the victims and their status, impact of the offences on the society and the stage of trial, it would not be appropriate to release the accused-applicant on bail.

15. I have considered the rival submissions of the parties.

16. The Supreme Court while dealing with the challenge to Section 45(1) of the Prevention of Money Laundering Act, 2002 which imposes two conditions for grant of bail has traced the history of bail in paragraphs 15 to 19 of the judgment in the case of Nikesh Tarachand Shah versus Union of India and another: (2018) 11 SCC 1.

15. The provision for bail goes back to Magna Carta itself. Clause 39, which was, at that time, written in Latin, is translated as follows:

"No free man shall be seized or imprisoned or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land."

It is well known that Magna Carta, which was wrung out of King John by the Barons on 15-6-1215, was annulled by Pope Innocent III in August of that very year. King John died one year later, leaving the throne to his 9 year old son, Henry III. It is in the reign of this pious King and his son, Edward I, that Magna Carta was recognised by kingly authority. In fact, by the Statutes of Westminster of 1275, King Edward I repeated the injunction contained in Clause 39 of Magna Carta. However, when it came to the reign of the Stuarts, who believed that they were kings on earth as a matter of divine right, a struggle ensued between Parliament and King Charles I. This led to another great milestone in the history of England called the Petition of Right of 1628. Moved by the hostility to the Duke of Buckingham, the House of Commons denied King Charles I the means to conduct military operations abroad. The King was unwilling to give up his military ambition and resorted to the expedient of a forced loan to finance it. A number of those subject to the imposition declined to pay, and some were imprisoned; among them were those who became famous as "the Five Knights". Each of them sought a writ of habeas corpus to secure his release. One of the Knights, Sir Thomas Darnel, gave up the fight, but the other four fought on. The King's Bench, headed by the Chief Justice, made an order sending the Knights back to prison. The Chief Justice's order was, in fact, a provisional refusal of bail. Parliament being displeased with this, invoked Magna Carta and the Statutes of Westminster, and thus it came about that the Petition of Right was presented and adopted by the Lords and a reluctant King. Charles I reluctantly accepted this Petition of Right stating, "let right be done as is desired by the petition". Among other things, the petition had prayed that no free man should be imprisoned or detained, except by authority of law.

16. In Bushell's case [Bushell's case, 1670 Vaughan 135 : 124 ER 1006] , decided in 1670, Sir John Vaughan, C.J. was able to state that: (ER p. 1007) "The writ of habeas corpus is now the most usual remedy by which a man is restored again to his liberty, if he have been against law deprived of it."

Despite this statement of the law, one Jenkes was arrested and imprisoned for inciting persons to riot in a speech, asking that King Charles II be petitioned to call a new Parliament. Jenkes went from pillar to post in order to be admitted to bail. The Lord Chief Justice sent him to the Lord Chancellor, who, in turn, sent him to the Lord Treasurer, who sent him to the King himself, who, "immediately commanded that the laws should have their due course". (See Jenke's case [Jenke's case, (1676) 6 How St Tr 1189] , How St Tr at pp. 1207 & 1208). It is cases like these that led to the next great milestone of English history, namely, the Habeas Corpus Act, 1679. This Act recited that many of the King's subjects have been long detained in prison in cases where, by law, they should have been set free on bail. The Act provided for a habeas corpus procedure which plugged legal loopholes and even made the King's Bench Judges subject to penalties for non-compliance.

17. The next great milestone in English history is the Bill of Rights, 1689, which was accepted by the only Dutch monarch that England ever had, King William III, who reigned jointly with his wife Queen Mary II. It is in this document that the expression "excessive bail ought not to be required..." first appears in Chapter 2 Clause 10.

18. What is important to learn from this history is that Clause 39 of the Magna Carta was subsequently extended to pre-trial imprisonment, so that persons could be enlarged on bail to secure their attendance for the ensuing trial. It may only be added that one century after the Bill of Rights, the US Constitution borrowed the language of the Bill of Rights when the principle of habeas corpus found its way into Article 1 Section 9 of the US Constitution, followed by the Eighth Amendment to the Constitution which expressly states that, "excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted". We may only add that the Eighth Amendment has been read into Article 21 by a Division Bench of this Court in Rajesh Kumar v. State [Rajesh Kumar v. State, (2011) 13 SCC 706 : (2012) 2 SCC (Cri) 836] at paras 60 and 61.

19. In Gurbaksh Singh Sibbia v. State of Punjab [Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 : 1980 SCC (Cri) 465] , the purpose of granting bail is set out with great felicity as follows: (SCC pp. 586-88, paras 27-30) "27. It is not necessary to refer to decisions which deal with the right to ordinary bail because that right does not furnish an exact parallel to the right to anticipatory bail. It is, however, interesting that as long back as in 1924 it was held by the High Court of Calcutta in Nagendra Nath Chakravarti, In re [Nagendra Nath Chakravarti, In re, 1923 SCC OnLine Cal 318 : AIR 1924 Cal 476 : 1924 Cri LJ 732] , AIR pp. 479-80 that the object of bail is to secure the attendance of the accused at the trial, that the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial and that it is indisputable that bail is not to be withheld as a punishment. In two other cases which, significantly, are the "Meerut Conspiracy cases" observations are to be found regarding the right to bail which deserve a special mention. In K.N. Joglekar v. Emperor [K.N. Joglekar v. Emperor, 1931 SCC OnLine All 60 : AIR 1931 All 504 : 1932 Cri LJ 94] it was observed, while dealing with Section 498 which corresponds to the present Section 439 of the Code, that it conferred upon the Sessions Judge or the High Court wide powers to grant bail which were not handicapped by the restrictions in the preceding Section 497 which corresponds to the present Section 437. It was observed by the Court that there was no hard-and-fast rule and no inflexible principle governing the exercise of the discretion conferred by Section 498 and that the only principle which was established was that the discretion should be exercised judiciously. In Emperor v. H.L. Hutchinson [Emperor v. H.L. Hutchinson, 1931 SCC OnLine All 14 : AIR 1931 All 356 : 1931 Cri LJ 1271] , AIR p. 358 it was said that it was very unwise to make an attempt to lay down any particular rules which will bind the High Court, having regard to the fact that the legislature itself left the discretion of the court unfettered. According to the High Court, the variety of cases that may arise from time to time cannot be safely classified and it is dangerous to make an attempt to classify the cases and to say that in particular classes a bail may be granted but not in other classes. It was observed that the principle to be deduced from the various sections in the Criminal Procedure Code was that grant of bail is the rule and refusal is the exception. An accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he were in custody. As a presumably innocent person he is therefore entitled to freedom and every opportunity to look after his own case. A presumably innocent person must have his freedom to enable him to establish his innocence.

28. Coming nearer home, it was observed by Krishna Iyer, J., in Gudikanti Narasimhulu v. State [Gudikanti Narasimhulu v. State, (1978) 1 SCC 240 : 1978 SCC (Cri) 115] that: (SCC p. 242, para 1) ''1. ... the issue [of bail] is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitised judicial process. ... After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of "procedure established by law". The last four words of Article 21 are the life of that human right.'

29. In Gurcharan Singh v. State (UT of Delhi) [Gurcharan Singh v. State (UT of Delhi), (1978) 1 SCC 118 : 1978 SCC (Cri) 41] it was observed by Goswami, J., who spoke for the Court, that: (SCC p. 129, para 29) ''29. ... There cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or cancelling bail.'

30. In American Jurisprudence (2nd, Vol. 8, p. 806, para 39), it is stated:

''Where the granting of bail lies within the discretion of the court, the granting or denial is regulated, to a large extent, by the facts and circumstances of each particular case. Since the object of the detention or imprisonment of the accused is to secure his appearance and submission to the jurisdiction and the judgment of the court, the primary inquiry is whether a recognizance or bond would effect that end.' It is thus clear that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail."

Thus, the decision of the Court in granting bail has to be regulated from facts and circumstances of the particular case.

17. The Supreme Court in Prasanta Kumar Sarkar v. Ashis Chatterjee [Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496, while dealing with its role to interfere with the power of the High Court to grant bail to the accused, has observed that it is to be seen that the High Court has exercised its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a catena of judgments on that point. The Court proceeded to enumerate the factors which should be inter alia considered in para 9 as under:-

"9. ... among other circumstances, the factors [which are] to be borne in mind while considering an application for bail are:

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released on bail;

(v) character, behaviour, means, position and standing of the accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being influenced; and

(viii) danger, of course, of justice being thwarted by grant of bail."

18. The principles in regard to the grant of bail under Section 439 are well settled. However, a few discussions on the point would be apt to note here e.g. Kanwar Singh v State of Rajasthan : (2012) 12 SCC 180, Neeru Yadav v State of UP: (2016) 15 SCC 422 and State of Bihar v Rajballav Prasad (2017) 2 SCC 178. In Kanwar Singh, it has been held:

"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 Court No. - 12 AFR Case :- BAIL No. - 9702 of 2018 Applicant :- Nishant Sinha Opposite Party :- State Of U.P. Counsel for Applicant :- Meha Rashmi,Gantavya,Ritwick Rai Counsel for Opposite Party :- Govt. Advocate Hon'ble Dinesh Kumar Singh,J.

1. The present bail application has been filed by the applicant in Crime No.252 of 2017: S.T. No. 427 of 2017 under Sections 342, 323, 504, 506, 354A, 354A(2), 420, 406, 376, 511, 120B IPC and Section 9(1)/9(p)/10 Protection of Children from Sexual Offences Act.

2. The complainant was working as Chief Security Officer at Babu Banarasi Das U.P. Badminton Academy, Vipin Khand, Gomti Nagar, (hereinafter referred to as 'the Academy') and vide resolution dated 12.02.2017 passed by the Executive Committee of U.P. Badminton Association, he had been authorized to lodge the FIR against the accused-applicant and his father.

3. It is alleged that the accused-applicant was illegally and unauthorizedly holding post of Officiating Secretary of U.P. Badminton Association and his father, Vijay Sinha was the Secretary of U.P. Badminton Association. Complaints had been received against them from the players especially from the female players that the accused-applicant misusing his power and position of his father had been exploited them physically and mentally. He had also collected money for issuing 'No Objection Certificate' for various purposes. His father had full support and protection to the accused-applicant.

4. To enquire the allegations against the accused, U.P. Badminton Association appointed one man Commission of a retired District Judge. The Enquiry Commission in its report had found the allegations against the accused correct and recommended for legal action against them. The Commission's Report dated 23.01.2017 and all complaints from the players were in safe custody of the U.P. Badminton Association.

5. Four female players have made specific allegations against the accused-applicant and his father for their physical and mental exploitation. One of the female players in her complaint has said that she and her brother had taken admission in the Academy together. After sometime, her brother was forced to leave the Academy. Thereafter, the accused-applicant offered her for free training. This offer, however, was declined by the player and her family members finding in the offer smell of corruption. Thereafter, the accused-applicant asked her to have relation with him which she refused. Thereafter, the accused-applicant forbade all the players of the Academy to practice with her. Under these circumstances, she decided to leave the Academy and when the accused-applicant came to know about it, he illegally confined her in the Academy and started physically and mentally abusing her. She was threatened by the accused-applicant that he was very powerful and her guardians would not be allowed to go alive from the Academy. It was also alleged that the accused-applicant said that he had already talked to the co-accused (his father) and she would never be able to play in future. She was made to stand for 6 hours continuously and she was beaten up on the instigation by the accused-applicant. The accused-applicant snatched her phone and deleted vulgar/ obscene messages sent to her by him. Thereafter, he deleted contacts, emails etc. In the night when the guardians of the said player said that they were going to lodge the FIR against the accused-applicant then he said that nobody was required to come and the said player was free to leave the Academy anytime. Thereafter only on the next day she was allowed to go out of the Academy. At that time she was 18 years of age.

6. Second complaint was made by a player from West Bengal. She came for short term coaching at the Academy. During the national championship, the accused-applicant and his father told the guardian of the said the player that she was a talented player. The accused-applicant offered her admission in the Academy. She was told about the wonderful facilities and was shown a dream of her bright future. The guardian of the said female player got convinced and admitted her in the Academy. Thereafter, the accused-applicant and his father pressurized the said player to leave West Bengal State and become the player of Uttar Pradesh State keeping in mind the better facilities in the Academy. After change of State, she was subjected to cruel mental and physical ragging. When the guardian of the player complained to the accused-applicant, ragging got reduced but the accused-applicant started giving indication that he is the only one protector of the players. He started making signs and giving indication to come close to her which had nothing to do with the Badminton. Some players who were involved in the ragging of the said player, said that she was subjected to severe ragging on the instigation of the accused-applicant. Thereafter, the accused-applicant tried to establish forcible physical relation with her and when it was opposed by her then the accused-applicant threatened the player and her guardian. The accused-applicant snapped her photos and tried to blackmail her for physical exploitation. The accused in connivance with each other tried to outrage her modesty and exploit her physically and for that reason she left the Academy. At the time of incident, this female player was only 16 years of age.

7. The third player in her complaint alleged that the accused-applicant used to exploit the female players by putting all kind of pressures. The female players would be beaten up by shoes, sticks and racquets. In the night he would call female players and tell them horror tales so that they agree for physical relationship with him.

8. The forth player who is also a National player and has been participating since 2009 Under-16 and Under 19 and in Senior Category in National and International Championship told that the accused-applicant had usurped the position of the Head of the Academy. When she opposed the evil design of the accused-applicant, she was thrown out of the Academy.

9. Allegations against the accused-applicant are at galore in the complaint of physical and sexual exploitation of the female players including allegations of corruption.

10. Heard Ms. Meha Rashmi, learned counsel for the accused-applicant and Mr. Rajesh Kumar Singh, learned AGA for the State.

11. The bail application (Bail No.3721 of 2018) of the co-accused, Vijay Prakash Sinha of the present applicant got rejected by this Court vide order dated 20.07.2017 which has been placed on record of the bail application as Annexure-18. Learned Trial Court has rejected the bail application of the present accused-applicant on the ground that when the co-accused whose role was only of abetment of the offence which alleged to have been committed by the present accused-applicant has been rejected by this Court, there was no ground to enlarge the present accused-applicant on bail. Charge-sheet has been filed and charges have been framed against the accused. The victims in their statements recorded under Section 164 Cr.P.C. have reiterated the allegations against the accused.

12. It is also relevant to mention here that Writ Petition No.5912(MB) of 2017 was filed for quashing of the same FIR before the Division Bench of this Court. Paras 13 and 14 of the order dated 22.03.2017 passed in the aforesaid Writ Petition are extracted hereinbelow:-

"13. Having gone through the contents of the impugned First Information Report, it prima facie becomes evident that a retired District and Sessions Judge was asked to conduct an enquiry as regards the veracity of allegations made by various girls who claimed to be victims of offence of sexual harassment. Their statements were recorded and an enquiry report was furnished which endorsed the actions of the accused. Shri Dwivedi on behalf of Investigating Agency has also pointed out that statements of the girls have been recorded which prima facie indicate commission of offence, not only by Nishant Sinha but also by his father Vijai Sinha, including of rape.

14. On going through the allegations in the impugned First Information Report also we find that the actions of Nishant Sinha were supported by his father Dr. Vijai Sinha. The petitioner is said to be absconding. "

The aforesaid writ petition was finally dismissed by this Court vide order dated 19.07.2017.

13. Learned counsel for the accused-applicant submits that the lodging of the FIR against the accused-applicant and his father is actuated with malice by the rival group of the U.P. Badminton Association. The people opposed to the applicant and his father were always for look out to grab the Association and threw the present accused-applicant and his father out from the Association. She further submits that the FIR has been lodged belatedly and the offences under Protection of Children from Sexual Offences Act as alleged in the FIR are not made out against the accused-applicant.

14. On the other hand, learned AGA, Sri Rajesh Kumar Singh submits that the delay is not vital in the present case as victims were the players who were housed in the Academy and the accused-applicant was in domitable position with money and muscle power. The hapless victims had suffered at the hands of the accused-applicant and his father. The accused have ruined the career of the talented players who had very bright future in the sport. When the charges have already been framed against the accused-applicant, it is not the stage where the accused-applicant can argue that the offences under the Protection of Children from Sexual Offences Act are not made out against him. He further submits that considering the seriousness of allegations, the position of the accused-applicant, the age of the victims and their status, impact of the offences on the society and the stage of trial, it would not be appropriate to release the accused-applicant on bail.

15. I have considered the rival submissions of the parties.

16. The Supreme Court while dealing with the challenge to Section 45(1) of the Prevention of Money Laundering Act, 2002 which imposes two conditions for grant of bail has traced the history of bail in paragraphs 15 to 19 of the judgment in the case of Nikesh Tarachand Shah versus Union of India and another: (2018) 11 SCC 1.

15. The provision for bail goes back to Magna Carta itself. Clause 39, which was, at that time, written in Latin, is translated as follows:

"No free man shall be seized or imprisoned or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land."

30. In American Jurisprudence (2nd, Vol. 8, p. 806, para 39), it is stated:

''Where the granting of bail lies within the discretion of the court, the granting or denial is regulated, to a large extent, by the facts and circumstances of each particular case. Since the object of the detention or imprisonment of the accused is to secure his appearance and submission to the jurisdiction and the judgment of the court, the primary inquiry is whether a recognizance or bond would effect that end.' It is thus clear that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail."

Thus, the decision of the Court in granting bail has to be regulated from facts and circumstances of the particular case.

17. The Supreme Court in Prasanta Kumar Sarkar v. Ashis Chatterjee [Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496, while dealing with its role to interfere with the power of the High Court to grant bail to the accused, has observed that it is to be seen that the High Court has exercised its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a catena of judgments on that point. The Court proceeded to enumerate the factors which should be inter alia considered in para 9 as under:-

"9. ... among other circumstances, the factors [which are] to be borne in mind while considering an application for bail are:

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released on bail;

(v) character, behaviour, means, position and standing of the accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being influenced; and

(viii) danger, of course, of justice being thwarted by grant of bail."

"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."

19. In Neeru Yadav (supra), applying the same principle, Hon'ble Supreme Court has held that:

"It is a well-settled principle of law that while dealing with an application for grant of bail, it is the duty of the Court to take into consideration certain factors and they basically are:

(i) the nature of accusation and the severity of punishment in cases of conviction and the nature of supporting evidence,

(ii) reasonable apprehension of tampering with the witnesses for apprehension of threat to the complainant, and

(iii) prima facie satisfaction of the Court in support of the charge."

20. The decision in Rajballav Prasad (supra) emphasises that while the liberty of the subject is an important consideration, the public interest in the proper administration of criminal justice is equally important:

"...undoubtedly the courts have to adopt a liberal approach while considering bail applications of accused persons. However, in a given case, if it is found that there is a possibility of interdicting fair trial by the accused if released on bail, this public interest of fair trial would outweigh the personal interest of the accused while undertaking the task of balancing the liberty of the accused on the one hand and interest of the society to have a fair trial on the other hand. When the witnesses are not able to depose correctly in the court of law, it results in low rate of conviction and many times even hardened criminals escape the conviction. It shakes public confidence in the criminal justice delivery system. It is this need for larger public interest to ensure that criminal justice delivery system works efficiently, smoothly and in a fair manner that has to be given prime importance in such situations."

21. In a consistent line of precedent, the Supreme Court has emphasised the distinction between the rejection of bail in a non-bailable case at the initial stage and the cancellation of bail after it has been granted. In adverting to the distinction, the Supreme Court in Dolatram v State of Haryana : (2018)2 SCALE 285 held that:

"Rejection of a 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 the bail, already granted, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of justice or evasion of 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."

22. These principles have been reiterated in Central Bureau of Investigation, Hyderabad v Subramani Gopalakrishnan : (2011) 5 SCC 296 and more recently in Dataram Singh v State of Uttar Pradesh :

"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. 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."

23. Thus, from the several judgments cited above, it is clear that there is no hard and fast rule governing the exercise of discretion conferred under Section 439 of the Code. The only principle which should govern the discretion is that it must be exercised judiciously and cautiously.

24. Considering the allegations in the FIR and the statements of the victims recorded under Section 164 Cr.P.C. also the fact that the charge-sheet has been filed and charges have been framed, there is a reasonable ground to believe prima facie that the allegations against the accused are not untrue and unsubstantiated. The offences committed by the accused-applicant are grievous in nature inasmuch as misusing the authority, power and position the accused has exploited the young female players who had come to the Academy for their career advancement. The victims are hapless players who were exploited and considering the status of the accused, it cannot be ruled out that the accused-applicant would not be in a position to influence the witness(es). If the accused-applicant is released on bail at this stage, there would always be danger of justice being throttled and thus, at this stage this is not a case where the accused-applicant should be enlarged on bail.

25. Thus, the present bail application being without merit and substance is hereby rejected.

Order Date:-17.11.2018 prateek

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