Gujarat High Court
State Of Gujarat vs Mukeshbhai Rajabhai Bharvad on 10 January, 2024
NEUTRAL CITATION
R/CR.MA/4370/2023 JUDGMENT DATED: 10/01/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR CANCELLATION OF BAIL) NO. 4370 of
2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
==========================================================
1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question YES
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
STATE OF GUJARAT
Versus
MUKESHBHAI RAJABHAI BHARVAD
==========================================================
Appearance:
MR HK PATEL APP for the Applicant(s) No. 1
MR MM SAIYED(1806) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
==========================================================
CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 10/01/2024
ORAL JUDGMENT
By way of the present petition under Section 439(2) of the Code of Criminal Procedure, 1973, the petitioner State has prayed to quash and set aside the order dated 23.05.2022 passed by the learned 2 nd Additional Sessions Judge, Bharuch - Ankleshwar in Criminal Misc. Application No.324 of 2022, whereby the learned Session Judge has granted regular bail Page 1 of 24 Downloaded on : Fri Jan 12 20:41:06 IST 2024 NEUTRAL CITATION R/CR.MA/4370/2023 JUDGMENT DATED: 10/01/2024 undefined granted to the respondent - original accused in connection with offence punishable under Sections 376(3), 323, 337, 504, 506(2), 114 of Indian Penal Code as well as under Sections 4, 6 and 12 of the POCSO Act and Sections 3(1)(r)(s), 3(2)5, 3(2)(5-A), 3(1)W(1) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities Act), 1989 registered vide Cr. 11199005220171 of 2022 before Netrang Police Station.
2. The short facts of the case are that on the date of incident while the victim after taking dinner had gone out, at that time, she received a message in her mobile phone from the accused no.1-respondent no.1 asking her to come at the terrace of one Mr.Kishorbhai Mahraj threatening her that in failure of her coming, he will cut his hand and therefore victim having scarred went to terrace; where accused - respondent no.1 caught hold of her hand forcibly and slept her on the terrace and by one hand pressed her mouth and after removing clothes committed rape. It is also alleged in the FIR that in the meantime father of the victim came on the terrace searching her. Accused no.1 ran away to his terrace while org. accused nos.2 and 3 caught hold of the first informant while he was chasing org. accused no.1 and caused injury on back side of head with brick, as also gave kick and fist blows and in furtherance by uttering derogatory words of his caste committed the offence.
2.1 As stated supra, FIR came to be registered against accused regarding the incident.
2.2 After registration of offence, the accused arrested and Page 2 of 24 Downloaded on : Fri Jan 12 20:41:06 IST 2024 NEUTRAL CITATION R/CR.MA/4370/2023 JUDGMENT DATED: 10/01/2024 undefined preferred the regular bail application which came to be granted as per order passed in paragraph 1of this judgment.
3. Heard Mr.H K Patel, learned APP for the petitioner and Mr.M M Saiyed, learned Advocate for org. accused No.1- respondent no.1. Respondent no.2 though served did not remain present to contest the petition.
4. Learned APP assailing the impugned order would submit that the learned Court below has examined wholly irrelevant consideration while granting bail to the accused. He would further submit that the allegations of heinous crime punishable under the POCSO Act is levelled against the accused where the victim is aged 14 years. He would further submit that even if she was consensual in sexual relationship with the accused, her consent cannot be recorded and cannot be made basis for granting bail. He would further submit that learned Court below has committed serious error in recording that, though age of the victim being 14 years; she had given consent for physical relationship with the accused and reasoned its order on such finding. He would further submit that learned Court below has granted bail on untenable grounds and on concept foreign to the grant or refusal of regular bail in a serious offence punishable under Sections 4, 6 and 12 of the POCSO Act read with Section 376 of the IPC amongst other offences.
4.1 Learned APP would further submit that learned Court below not only erred in recording the false and untenable reasons in granting bail; but has erroneously taken shelter of Page 3 of 24 Downloaded on : Fri Jan 12 20:41:06 IST 2024 NEUTRAL CITATION R/CR.MA/4370/2023 JUDGMENT DATED: 10/01/2024 undefined order delivered by co-ordinate Bench this Court in case of Arvindbhai Setabhai Kumarkhaniya V/s. State of Gujarat in Criminal Misc. Application No.27444/2017, as in that case the victim was 17 years and the accused was 21 years and both of them were in love relationship; victim eloped with the accused and lived at various places. These factors were found to be mitigating factors for granting bail in that case. He would further submit that facts of the present case are totally different wherein the victim was aged 14 years and accused is aged 31 years. He would further submit that at the most; it can be believed that the accused has lured the minor girl. Thus the reliance of the said judgment is also erroneously made. He would further submit that the learned Court below has also given reason that "....without touching the age of the Victim, it is clear from the papers that she was in love with the Applicant. " which in respectful submission of learned APP is a total non-consideration and non-application on the part of the learned Court below as such consideration cannot be made basis while deciding bail application. He would further submit that age of the minor victim is vital factor which is 14 years and yet it is totally given go-by by the learned Court below.
4.2 At the last, upon above submissions, it is submitted that learned trial Court has committed serious error in granting regular bail in heinous crime. Thus, learned APP sought to cancel regular bail granted to the accused.
5. On the other hand, learned Advocate Mr.Saiyed appearing for the respondent No.1 - org. accused having referred to the Page 4 of 24 Downloaded on : Fri Jan 12 20:41:06 IST 2024 NEUTRAL CITATION R/CR.MA/4370/2023 JUDGMENT DATED: 10/01/2024 undefined statements of the victim, as well as, medical report on record would submit that the learned Court below has not committed any error in granting bail; nor committed any error in recording that the victim was in love relationship with the accused. He would further submit that in fact the victim was frequently making phone call from the cellphone of her mother. He would further submit that background of the dispute is altogether different; the father of the victim and the accused are the neighbours and have some previous scuffle. He would submit that FIR also reveals such fact that such dispute was taken place whereby the accused was falsely en-roped in the offence.
5.1 Referring to medical certificate, learned Advocate Mr.Saiyed would further submit that in the medical certificate neither any injury on the private part of the victim is recorded; nor any forcible act is recorded by the Doctor which indicates that there was no force in the alleged act. He would further submit that such evidence on record is contradictory to the contents of the FIR where it was said that victim was forcibly raped. Thus, such contradiction prima facie indicates frivolity in the FIR.
5.2 Learned Advocate for respondent No.1-accused would further submit that cancellation of bail would affect the personal liberty of a person guaranteed under Article 21 of the Constitution of India. He would further submit that while cancelling the bail the Court is required to see the supervening circumstances which may affect the concept of fair trial. He would further submit that in the present case the prosecution has failed to bring on record any such issues which would affect Page 5 of 24 Downloaded on : Fri Jan 12 20:41:06 IST 2024 NEUTRAL CITATION R/CR.MA/4370/2023 JUDGMENT DATED: 10/01/2024 undefined the right of fair trial. He would submit that personal liberty of the accused is a valuable right guaranteed under the Constitution and presumption of innocence is available to the accused and cannot be overlooked. He would further submit that there may be a serious offence; but that may not be a sole and relevant consideration for cancelling the bail. To buttress the submission, he has relied upon, the decision in case of Hiteshkumar Vallabhdas Shah Power of Attorney of Pankaj Indravadan Sheth vs. State of Gujarat [2021 (4) GLR 2874].
5.3 Referring to the decision in case of Xxx vs. Union Territory of Andaman & Nikobar Islands [2023 11 SCC 505] , learned Advocate for the respondent-accused would submit that in that case the Hon'ble Apex Court though found that reasons given by the Hon'ble High Court is not in accordance with the law; but did not interfere with the order of High Court and continued bail granted to the accused. Thus, the said ratio would apply to the present case. By making above submissions, he would urge to dismiss the present petition.
6. At the outset, let refer to the decision in case of Jagjeet Singh Versus Ashish Mishra [2022 (9) SCC 321] , where the Hon'ble Apex Court reiterated and re-approved the factors to be considered for grant of bail as was laid down in the case of Prasanta Kumar Sarkar v. Ashis Chatterjee & Anr., [(2010) 14 SCC 496] after taking into account several precedents, elucidated; Paragraph 9 of the said decision reads thus:
"9.However, it is equally incumbent upon the High Court to exercise Page 6 of 24 Downloaded on : Fri Jan 12 20:41:06 IST 2024 NEUTRAL CITATION R/CR.MA/4370/2023 JUDGMENT DATED: 10/01/2024 undefined its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors 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."
(Emphasis Supplied)
7. In background of above scenario, the factors which being relevant for grant or refusal of bail, let refers the reasons cited by the learned Court below to enlarge the accused on bail. Paragraph 5 & 6 reads thus:
"5. While deciding bail application under Section 439 of Criminal Procedure Code, the following factors are required to be considered:
(a) Whether releasing the accused by any statutory provision? on bail is in any way forbidden
(b) Whether he would intimidate the witnesses or win over them for getting support to his defence and/or for abstaining from supporting the prosecution?
(c) Whether he would be available easily at the time of his trial and would submit to the custody if convicted and sentenced at last or would flee and would not be available?
(d) Whether he would tamper with the evidence?
(e) Whether he would commit like wise or any other offence or wrong directly or indirectly remaining behind curtain?
(f) Whether he would be retributive or revengeful or retaliative, i.e. Page 7 of 24 Downloaded on : Fri Jan 12 20:41:06 IST 2024 NEUTRAL CITATION R/CR.MA/4370/2023 JUDGMENT DATED: 10/01/2024 undefined whether his release will endanger safety of the persons. viz. complainant and witness or other concerned or property?
(g) Whether his own safety is likely to be endangered?
(h) Whether larger good, national interest social order, national security, public safety, and/or heaith are likely to be jeopardized?
(i) The nature and gravity of offence being shocking and alarming of barbaric and day in and day out its effect of the people or damages civilization in the society turning back to jungle law?
(j)Other peculiar circumstances of each care appearing on record, dictating the exercise of discretion in particular way?
6. Having considered the rival submissions of the Learned Advocates appearing for the respective parties, Police papers and looking to the submission made by both the parties, it is found from the FIR and Affidavit of the Investigating Officer that there was a love affair between the victim and the applicant. Further, looking to the above facts and circumstances and considering the nature of the allegations against the Applicant in the FIR, it seems from the FIR that the Applicant- Accused and the Victim were in love relationship with each other. So far the age of the victim is concerned, it is obviously on record that she is age of 14 years and there was a consent of the victim for physical relationship with the accused. Hence, in the above circumstances, the applicant cannot be penalized at this stage without the trial. Ultimately, he may be facing trial on the basis of the material against him and evidentially the evaluation can be considered after recording the detail evidence. Moreover, considering the ratio laid down by the Hon'ble Gujarat High Court in the case of Arvindbhai Setabhai Kumarkhaniya V/s. State of Gujarat in Criminal Misc. Application No.27444/2017, wherein the Hon'ble High Court has held that "The Prosecutrix is 17 years old and the Accused is 21 years old. From the record and the statement of the Prosecutrix, the Prosecutrix was in love with the Applicant and left the home of her own and moved with the Applicant at various places. These are the mitigating factor for consideration of the bail application". In such circumstances, discretionary powers is utilized Page 8 of 24 Downloaded on : Fri Jan 12 20:41:06 IST 2024 NEUTRAL CITATION R/CR.MA/4370/2023 JUDGMENT DATED: 10/01/2024 undefined in favour of the Applicant. Considering the materials on record it reveals that there was no any pressure from the applicant to victim to join his company. Hence, considering this Judgment and all the papers put before me, it transpires that thus without touching the age of the Victim, it is clear from the papers that she was in love with the Applicant. Moreover, denial of bail to the Applicant would amount to pre-trial conviction, which is not permitted under the Law. Under the above circumstances, at this juncture, the discretionary powers are exercised in favour of the applicant. In view of the above discussion, following Order is passed:-"
8. Learned Court below penned the reasons for granting bail in offence under POCSO Act read with offence punishable under Section 376(3) amongst other offence. The consideration weighed with the learned Court below to grant the bail is that the victim is consenting party in the physical relationship. According to belief of learned trial Court, physical relationship between victim and accused is proven whereby victim was consenting party. Undeniably, the age of the victim is 14 years. The learned Court below has also recorded love affairs between the victim and the accused. At this juncture, I may re-look the age of the victim and accused where the victim is 14 years and accused is 31 years. The learned Court below has taken the FIR to believe that victim was in love affair with the accused. On perusal of the FIR, it nowhere reflects that victim had any love affair with the accused. On the contrary, the first informant, who is father of the victim in FIR gave statement to the effect that when he was in search for his daughter-victim and went to the terrace of one Mr.Kishor Maharaj who is not the accused, respondent no.1-org. Accused No.1 was forcibly rapping the victim and when he went to save Page 9 of 24 Downloaded on : Fri Jan 12 20:41:06 IST 2024 NEUTRAL CITATION R/CR.MA/4370/2023 JUDGMENT DATED: 10/01/2024 undefined his daughter, accused pushed him back i.e. first informant and jumped therefrom. The version of the victim qua incident is reflected from the FIR wherein she categorically stated that the accused had forcible removed her clothes and done the intercourse with the victim. These are the words coming from the FIR. It is unfortunate that learned Court below has read the FIR differently. By no means, this Court allows to read the FIR in such a way to establish that there was love relationship between the victim and the accused. One literal reading of FIR, prima facie, supports charge of offence under POCSO Act as well as offence under Section 376 of the IPC amongst other offence.
9. In Deepak Yadav vs State of UP & Anr.,2022 Livelaw (SC) 562 in paragraph 30 to 34 the Hon'ble Apex Court has observed that the bail once granted should not be cancelled in mechanical manner. But at the same time, if the bail is granted on untenable grounds it can lead to cancellation of bail. Relevant paragraphs are extracted below.
"30. This Court has reiterated in several instances that 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 trial. Having said that, in case of cancellation of bail, very cogent and overwhelming circumstances are necessary for an order directing cancellation of bail (which was already granted). A two-Judge Bench of this Court in Dolat Ram And Others Vs. State of Haryana laid down the grounds for cancellation of bail which are :-
(i) interference or attempt to interfere with the due course of administration of Justice Page 10 of 24 Downloaded on : Fri Jan 12 20:41:06 IST 2024 NEUTRAL CITATION R/CR.MA/4370/2023 JUDGMENT DATED: 10/01/2024 undefined
(ii) evasion or attempt to evade the due course of justice
(iii) abuse of the concession granted to the accused in any manner
(iv) Possibility of accused absconding
(v) Likelihood of/actual misuse of bail
(vi) Likelihood of the accused tampering with the evidence or threatening witnesses.
31. It is no doubt true that cancellation of bail cannot be limited to the occurrence of supervening circumstances. This Court certainly has the inherent powers and discretion to cancel the bail of an accused even in the absence of supervening circumstances. Following are the illustrative circumstances where the bail can be cancelled :-
a) Where the court granting bail takes into account irrelevant material of substantial nature and not trivial nature while ignoring relevant material on record.
b) Where the court granting bail overlooks the influential position of the accused in comparison to the victim of abuse or the witnesses especially when there is prima facie misuse of position and power over the victim.
c) Where the past criminal record and conduct of the accused is completely ignored while granting bail.
d) Where bail has been granted on untenable grounds.
e) Where serious discrepancies are found in the order granting bail thereby causing prejudice to justice.
f) Where the grant of bail was not appropriate in the first place given the very serious nature of the charges against the accused which disentitles him for bail and thus cannot be justified.
g) When the order granting bail is apparently whimsical, capricious and perverse in the facts of the given case.
32. In Neeru Yadav Vs. State of Uttar Pradesh And Another, 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 examined the precedents on the principles that guide grant of bail and observed Page 11 of 24 Downloaded on : Fri Jan 12 20:41:06 IST 2024 NEUTRAL CITATION R/CR.MA/4370/2023 JUDGMENT DATED: 10/01/2024 undefined as under :-
"12...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"
33. This Court in Mahipal (Supra) held that: -
"17. Where a court considering an application for bail fails to consider relevant factors, an appellate court may justifiably set aside the order granting bail. An appellate court is thus required to consider whether the order granting bail suffers from a non-application of mind or is not borne out from a prima facie view of the evidence on record. It is thus necessary for this Court to assess whether, on the basis of the evidentiary record, there existed a prima facie or reasonable ground to believe that the accused had committed the crime, also taking into account the seriousness of the crime and the severity of the punishment."
34. A two-Judge Bench of this Court in Prakash Kadam And Others Vs. Ram Prasad Vishwanath Gupta And Another19 held Page 12 of 24 Downloaded on : Fri Jan 12 20:41:06 IST 2024 NEUTRAL CITATION R/CR.MA/4370/2023 JUDGMENT DATED: 10/01/2024 undefined that:-
"18. In considering whether to cancel the bail, the court has also to consider the gravity and nature of the offence, prima facie case against the accused, the position and standing of the accused, etc. if there are serious allegations against the accused, his bail may be cancelled even if he has not misused the bail granted to him. 19. In our opinion, there is no absolute rule that once bail is granted to the accused then it can only be cancelled if there is likelihood of misuse of bail. that factor, though no doubt important, is not the only factor. There are several other factors also which may be seen while deciding to cancel the bail."
10. Recording of reasons for grant of bail is the sole of every order. There is prima facie need to indicate reasons particularly in cases of grant or denial of bail where the accused is charged with a serious offence. The sound reasoning in a particular case is a reassurance that discretion has been exercised by the decision maker after considering all the relevant grounds and by disregarding extraneous considerations. The Court granting bail cannot obviate its duty to apply a judicial mind and to record reasons, brief as they may be, for the purpose of deciding whether or not to grant bail. Mere stating words in judgment do not constitute reasons. Reasons must be reflected application of judicial mind in background of provisions of law.
11. Emphasising the need of penning the reasons while granting bail, the Hon'ble Apex Court in the case of Rohit Bishnoi vs. State of Rajasthan & Anr., 2023 (0) AIR (SC) 3547 has observed in paragraph 18 to 22 as under:
Page 13 of 24 Downloaded on : Fri Jan 12 20:41:06 IST 2024NEUTRAL CITATION R/CR.MA/4370/2023 JUDGMENT DATED: 10/01/2024 undefined "18. This Court has, on several occasions discussed the factors to be considered by a Court while deciding a bail application.
The primary considerations which must be placed at balance while deciding the grant of bail are: (i) The seriousness of the offence; (ii) The likelihood of the accused fleeing from justice;
(iii) The impact of release of the accused on the prosecution witnesses; (iv) Likelihood of the accused tampering with evidence. While such a list is not exhaustive, it may be stated that if a Court takes into account such factors in deciding a bail application, it could be concluded that the decision has resulted from a judicious exercise of its discretion, vide Gudikanti Narasimhulu vs. Public Prosecutor, High Court of AndhraPradesh- [(1978) 1 SCC 240] ; Prahlad Singh Bhati vs. NCT, Delhi [(2001) 4 SCC 280] ; Anil Kumar Yadavvs. State (NCT of Delhi) - [(2018) 12 SCC 129].
19. This Court has also ruled that an order granting bail in a mechanical manner, without recording reasons, would suffer from the vice of non-application of mind, rendering it illegal, vide Ram GovindUpadhyay vs. Sudarshan Singh- [(2002) 3 SCC 598] ; Prasanta Kumar Sarkar vs. Ashis Chaterjee [(2010)14 SCC 496] ; Ramesh Bhavan Rathod vs. Vishanbhai Hirabhai Makwana (Koli) [(2021) 6 SCC 230] ;Brijmani Devi vs. Pappu Kumar (supra).
20. Reference may also be made to recent decisions of this Court in Manoj Kumar Khokhar vs. State ofRajasthan [2022 SCC OnLine SC 30] and Jaibunisha vs. Meharban [ (2022) 5 SCC 465] , wherein, on engaging in an elaborate discussion of the case law cited supra and after duly acknowledging that liberty of individual is an invaluable right, it has been held that an order granting bail to an accused, if passed in a casual and cryptic manner, de hors reasoning which would validate the Page 14 of 24 Downloaded on : Fri Jan 12 20:41:06 IST 2024 NEUTRAL CITATION R/CR.MA/4370/2023 JUDGMENT DATED: 10/01/2024 undefined grant of bail, is liable to be set aside by this Court while exercising power under Article 136 of the Constitution of India.
21. The Latin maxim cessante ratione legis cessat ipsa lex meaning reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself, is also apposite.
22. While we are conscious of the fact that liberty of an individual is an invaluable right, at the same time while considering an application for bail, courts cannot lose sight of the serious nature of the accusations against an accused and the facts that have a bearing on the case, particularly, when the accusations may not be false, frivolous or vexatious in nature but are supported by adequate material brought on record so as to enable a Court to arrive at a prima facie conclusion. While considering an application for grant of bail, a prima-facie conclusion must be supported by reasons and must be arrived at after having regard to the vital facts of the case brought on record. Due consideration must be given to facts suggestive of the nature of crime, the criminal antecedents of the accused, if any, and the nature of punishment that would follow a conviction vis àvis the offence/ s alleged against an accused."
12. At the outset, it can be observed that the only the said portions are forming part of the reasons given by the learned Court below while granting bail. It is settled that while exercising the discretion for granting bail, it is not necessary for the Court to assign elaborate reasons or engaged in roving inquiry as to the merits of the prosecution case; particularly when trial is at the initiate stage. Elaborate details cannot be recorded so as to give Page 15 of 24 Downloaded on : Fri Jan 12 20:41:06 IST 2024 NEUTRAL CITATION R/CR.MA/4370/2023 JUDGMENT DATED: 10/01/2024 undefined an impression that the case is the one that would result in conviction or in an acquittal while exercising the discretion but the Court deciding the bail application cannot divorce its decision from material aspect of the case such as allegations made against the accused; severity of the punishment if the allegations are proved beyond reasonable doubt and would result in conviction; reasonable apprehension of the witnesses being influenced by accused; tampering with the evidence; criminal antecedents.
13. Coming to paragraph 5 and 6 of the impugned judgment, as noted herein above, the learned Court below swayed by the wrong consideration that victim was in love relationship and she had consented in physical relationship which would make the accused entitle for bail. In fact, no such thing could be traced from the FIR. The learned Court below has also swayed by the finding that in medical examination of victim no external injury has been found; but this is not sufficient to believe that sexual act or physical relationship was without force as there is no rape. It appears that the learned Court below has selectively read the medical report. Medical report indicates that possibility of recent penetration cannot be ruled out; however learned trial Court has not read this part.
14. In the present case, the accused is charged with the offence punishable under Sections 4, 6 and 12 of the POCSO Act amongst other offence punishable under Sections 376(3), 323, 337, 504, 506(2), 114 of Indian Penal Code and Sections 3(1)(r)
(s), 3(2)5, 3(2)(5-A), 3(1)W(1) of the Atrocity Act.
Page 16 of 24 Downloaded on : Fri Jan 12 20:41:06 IST 2024NEUTRAL CITATION R/CR.MA/4370/2023 JUDGMENT DATED: 10/01/2024 undefined
15. Section 4 of POCSO Act provides punishment for pentrative sexual assault and maximum punishment is prescribed for life imprisonment with fine. Section 6 of the POCSO Act provides punishemnt for aggravated penetrative sexual assault and maximum punishment is imprisonment of life which shall mean imprisonment for the remainder of natural life with fine. Section 12 of the POCSO Act provies punishment for sexual harassment and maximum punishment prescirbed is of three years with fine. This is a deterent punishment. The Court while deciding the case where the punishment is quite deterent has to look for and to ascertain all the relevant consideration and other aspect. Accused who is charged for such deterent punishment, his bail plea cannot be lightly considered.
16. Section 29 of the POCSO Act prvoides presumption as to certain offences which reads thus:
"Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved."
17. Section 30 of the POCSO Act also provides presumiption of culpable mental stae which reads thus:
"(1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental Page 17 of 24 Downloaded on : Fri Jan 12 20:41:06 IST 2024 NEUTRAL CITATION R/CR.MA/4370/2023 JUDGMENT DATED: 10/01/2024 undefined state with respect to the act charged as an offence in that prosecution.
(2) For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.
Explanation.--In this section, "culpable mental state" includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact."
For the offence defined in Section 5, the punishment is prescribed in Section 6 of the POCSO Act. There is a statutory presumption of certain offences and in presence thereof, the presumption of innocence cannot be pressed into.
18. Now, I may also refer to the decision in case of State of Bihar vs. Rajballav Prasad @ Rajballav Pd. Yadav @ Rajballabh Yadav [2017 (2) SCC 178] wherein the Hon'ble Apex Court has held that when statutory presumption is available, the presumption of the innocence being a very general statement cannot be considered. Paragraph 22 reads thus:
"22. The High Court also ignored another vital aspect, namely, while rejecting the bail application of the co-accused, the High Court had ordered expeditious, nay, day-to-day trial to ensure that the trial comes to an end most expeditiously. When order had already been passed to fast track the trial, and the application for bail by the co- accused Sandeep Suman alias Pushpanjay was also rejected, the High Court, while considering the bail application of the respondent, was supposed to take into consideration this material fact as well. Further, while making a general statement of law that the accused is innocent, till proved guilty, the provisions of Section 29 of the PocsO Page 18 of 24 Downloaded on : Fri Jan 12 20:41:06 IST 2024 NEUTRAL CITATION R/CR.MA/4370/2023 JUDGMENT DATED: 10/01/2024 undefined Act have not been taken into consideration, which reads follows:
"29. Presumption as to certain offences. Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and Section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved."
19. Looking back to the impugned order, the learned Court below has recorded the consent of the victim who is aged 14 years who is child as per Section 2(d) of the POCSO Act and her consent has no material (of course no such consent is visible from the charge-sheet papers; but it comes from the mind of the learned trial Judge). Then, consent cannot be the consideration in alleged offence under the POCSO Act. The learned Court below has committed grave error and rests its judgment on irrelevant consideration. The height of the irrelevant consideration would be visible from the finding that " Hence, considering this judgment and the papers put before me, it transpires that thus, without touching the age of the Victim, it is clear from the paper that she was in love with the Applicant. "
This Court is unable to understand as to how the learned Court below arrived at such reasons and ignored the age of the victim while deciding the bail application under the POCSO Act. This seems to be consideration totally extraneous to the settled principle. The impugned order is passed ignoring the vital aspect and on misreading the FIR as well as other record. Such finding therefore cannot be permitted to sustain even for a while. A lot more can be observed about such a asinine, wacky and Page 19 of 24 Downloaded on : Fri Jan 12 20:41:06 IST 2024 NEUTRAL CITATION R/CR.MA/4370/2023 JUDGMENT DATED: 10/01/2024 undefined prepostrous order; but this Court refrain itself as this Court is well conscious that cancellation of bail is touching the liberty of a person; but if such liberty is granted erroneously or ignoring settled principles of law or ignoring the facet and facts of the case where the learned Court below recorded the consent of 14 years of victim child to grant bail, question of personal liberty does not survive.
20. The offence of rape being hinious has been cosndiered as onslaught on the dignity of woman by the Hon'ble Apex Court in Bhagwan Singh vs. Dilip Kumar @ Deepu @ Depak And Another [2023 SCC Online SC 1059] . Paragarph 18 is relevant which reads thus:
"18. The offence alleged in the instant case is heinous and would be a onslaught on the dignity of the womanhood and the age old principle of यत ननायर्य स्तत पपूज्यन्तत रमन्तत तत दतवतनाताः ननायय स्त ननायर्य स्तत पपूज्यन्तत रमन्तत तत दतवतनाताः त ननायर्य स्तत पपूज्यन्तत रमन्तत तत दतवतनाताः पपूज्यन्त ननायर्य स्तत पपूज्यन्तत रमन्तत तत दतवतनाताः त ननायर्य स्तत पपूज्यन्तत रमन्तत तत दतवतनाताः रमन्त ननायर्य स्तत पपूज्यन्तत रमन्तत तत दतवतनाताः त ननायर्य स्तत पपूज्यन्तत रमन्तत तत दतवतनाताः त ननायर्य स्तत पपूज्यन्तत रमन्तत तत दतवतनाताः त ननायर्य स्तत पपूज्यन्तत रमन्तत तत दतवतनाताः दत ननायर्य स्तत पपूज्यन्तत रमन्तत तत दतवतनाताः वत ननायर्य स्तत पपूज्यन्तत रमन्तत तत दतवतनाताः नात ननायर्य स्तत पपूज्यन्तत रमन्तत तत दतवतनाताः ाः (where women are respected Gods live there) would recede to the background and the guilty not being punished by process of law or accused persons are allowed to move around freely in the society or in spite of there being prima facie material being present they are allowed to move around freely in the society before guilt is proved and are likely to indulge in either threatening the prosecution witnesses or inducing them in any manner to jettison the criminal justice system, then the superior court will have to necessarily step in to undo the damage occasioned due to erroneous orders being passed by courts below."
21. Recollecting facts of the case on hand, even at the cost of repetition, case on hand alleges rape upon 14 years old girl / vic- tim. The offenec is registered under the POCSO Act and under Section 376 of the IPC. The learned trial Judge noted consent of Page 20 of 24 Downloaded on : Fri Jan 12 20:41:06 IST 2024 NEUTRAL CITATION R/CR.MA/4370/2023 JUDGMENT DATED: 10/01/2024 undefined 14 years old girl / victim in the offence of rape and granted bail, believing it to be a consensual act. Thus, the finding of learned trial Court is absurd, despicable and reprehensible. It is awful.
22. The aspect of balancing of two interests has again been discussed lucidly in Neeru Yadav v. State of Uttar Pradesh & Anr., (2014) 16 SCC 508 in the following words: Paragraph 16 and 17 reads thus:
"16. The issue that is presented before us is whether this Court can annul the order passed by the High Court and curtail the liberty of the second respondent- We are not oblivious of the fact that liberty is a priceless treasure for a human being. It is founded on the bedrock of the constitutional right and accentuated further on the human rights principle. It is basically a natural right. In fact, some regard it as the grammar of life. No one would like to lose his liberty or barter it for all the wealth of the world. People from centuries have fought for liberty, for absence of liberty causes sense of emptiness. The sanctity of liberty is the fulcrum of any civilised society. It is a cardinal value on which the civilisation rests. It cannot be allowed to be paralysed and immobilised. Deprivation of liberty of a person has enormous impact on his mind as well as body. A democratic body polity which is wedded to the rule of law, anxiously guard's liberty. But, a pregnant and significant one, the liberty of an individual is not absolute. Society by its collective wisdom through process of law can withdraw the liberty that it has sanctioned to an individual when an individual becomes a danger to the collective and to the societal order. Accent on individual liberty cannot be pyramided to that extent which would bring chaos and anarchy to a society. A society expects responsibility and accountability from its members, and it desires that the citizens should obey the law, respecting it as a cherished social Page 21 of 24 Downloaded on : Fri Jan 12 20:41:06 IST 2024 NEUTRAL CITATION R/CR.MA/4370/2023 JUDGMENT DATED: 10/01/2024 undefined norm. No individual can make an attempt to create a concavity in the stem of social stream. It is impermissible. Therefore, when an individual behaves in a disharmonious manner ushering in disorderly things which the society disapproves, the legal consequences are bound to follow. At that stage, the court has a duty. It cannot abandon its sacrosanct obligation and pass an order at its own whim or caprice. It has to be guided by the established parameters of law.
17. Coming to the case at hand, it is found that when a stand was taken that the second respondent was a history-sheeter, it was imperative on the part of the High Court to scrutinise every aspect and not capriciously record that the second respondent is entitled to be admitted to bail on the ground of parity. It can be stated with absolute certitude that it was not a case of parity and, therefore, the impugned order[Mitthan Yadav v. State of U.P., Criminal Misc. Bail Application No. 31078 of 2014, decided on 22-9- 2014(All)] clearly exposes the non- application of mind. That apart, as a matter of fact it has been brought on record that the second respondent has been charge-sheeted in respect of number of other heinousoffences. The High Court has failed to take note of the same. Therefore, the order has to pave the path of extinction, for its approval by this Court would tantamount to travesty of justice, and accordingly we set it aside."
23. Reasons arrived herein above would pave path to set aside impugned order of granting bail; which had led to traversty of justice. The erroneous impugned order has to go.
24. Now, insofar as the decision relied upon by learned Advocate for the respondent no.1 - accused in case of Hiteshkumar Vallabhdas Shah Power of Attorney of Pankaj Page 22 of 24 Downloaded on : Fri Jan 12 20:41:06 IST 2024 NEUTRAL CITATION R/CR.MA/4370/2023 JUDGMENT DATED: 10/01/2024 undefined Indravadan Sheth (supra) is concerned, this Court believes that huge loss of state exchequer by itself is not a deterent factor from granting the bail to the accused and therefore it is not applicable to the facts of the present case.
25. The another decision in case of Xxx vs. Union Territory of Andaman & Nikobar Islands (supra) , where the Hon'ble Apex Court in the facts of that case though comes to the conclusion that the High Court has not penned the reasons and exercised the discretion judiciously, cautiously and strictly in compliance with the basic principle yet on the facts of that case continued with the bail granted to the accused. However, the said ratio would not apply to the facts of the present case.
26. For the foregoing reasons, since the learned Court below has failed to adhere its discretion jurdicioulsy and strictly in compliance with the basic principles laid down in plethora of decisions, the present petition deserves to be allowed and accordingly it is allowed by quashing and setting aside the order passed by the learned Court below. The regular bail granted to the respondent no.1 - org. Accused No.1 stands cancelled and he is ordered to be surrendered himself before the Jail authority concenred within seven days from today. Failure to do so, concerned PI is directed to secure his presence by arresting him. The SP concerned is also directed to supervise the proceeding for securing presence of the respondent No.1-accused. Learned APP to forward the copy of this order to SP concerned for compliance of the direction given by this Court.
Page 23 of 24 Downloaded on : Fri Jan 12 20:41:06 IST 2024NEUTRAL CITATION R/CR.MA/4370/2023 JUDGMENT DATED: 10/01/2024 undefined
27. Observations made herein above are limited to decision of this application.
(J. C. DOSHI,J) sompura Page 24 of 24 Downloaded on : Fri Jan 12 20:41:06 IST 2024