Orissa High Court
Unknown vs State Of Madras on 5 March, 2020
Author: S.Pujahari
Bench: S.Pujahari
BLAPL No.6300 of 2019
07. 05.03.2020 Heard, the learned counsel for the petitioner
and the learned counsel for the State.
The petitioner being in custody in G.R. Case
No.77 of 2015, arising out of Berhampur Sadar P.S.
Case No.112 of 2015, pending in the Court of the
learned Special Judge-cum-2nd Additional Sessions
Judge, Berhampur, has filed this petition for his
release on bail. The offences alleged against him are
punishable under Sections 363, 366, 376(2)(i)(n),
323, 313, 342 and 506 of the I.P.C. read with Section
6 of POCSO Act, 2012 and Section 3(2)(v) of the S.C.
& S.T. (PoA) Act.
The petitioner being indicted in the aforesaid
case facing his trial wherein evidence of the victim
has been recorded.
It is submitted by the learned counsel for the
petitioner that since the victim proceeded with the
petitioner in her own volition though she was minor,
even if she subsequently made an allegation that she
was taken forcibly by the petitioner and sexual
assault was made on her, no offence under Section
376 of I.P.C. or POCSO Act is made out and, as
such, the petitioner be released on bail. To persuade
the Court in this regard, places reliance on a
decision of Bombay High Court passed in Criminal
Bail Application No.2632 of 2019 wherein taking
note of the law laid down in the case of
S. Varadarajan -Vs.- State of Madras, AIR 1965
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942 by the Apex Court, the Bombay High Court has
granted bail.
Learned counsel for the State, however, made
objection to such prayer for bail with the submission
that the petitioner in this case has kidnapped the
victim when she was 12 years of age and had kept
physical relationship with her forcibly and thereafter
also made her pregnant and subsequently deserted
her. Therefore, the victim being less than 18 years of
age, the offence under Section under Section
376(2)(i)(n) of I.P.C. and Section 6 of the POCSO Act
is prima facie made out, notwithstanding victim
leaving with the petitioner in her own volition. The
offence alleged is heinous and serious in nature and
prescribes stringent punishment. The case of S.
Varadarajan (supra) placing reliance, on which, the
Bombay High Court in Criminal Bail Application
No.2632 of 2019 has granted bail is of no assistance
inasmuch as the same has no precedent value with
regard to the prayer for bail of the petitioner. In such
premises, the offence alleged being heinous and
serious in nature, the evidence of the victim having
been recorded wherein she indicts the petitioner, at
this moment if the petitioner is allowed to be
released on bail, the same shall amount pre-judging
the case which is not permissible and, as such, the
petitioner does not deserve to be released on bail.
In rejoinder, learned counsel for the petitioner,
however, drawing the notice of the Court to some
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material contradictions in the evidence adduced and
the age of the victim with that of medical
examination submits that the victim was more than
16 years of age and as such, the Court should
release the petitioner on bail.
Needless to say that in the case of Niranjan
Singh and another vrs. Prabhakar Sajram
Kharote and others, AIR 1980 SC 785, the Apex
Court while dealing with the "law of bails" has held
as follows:-
"The law of bails, like any other branch of
law, has its own philosophy, and occupies
an important place in the administration of
justice and the concept of bail emerges from
the conflict between the police power to
restrict the liberty of a man who is alleged to
have committed a crime and the
presumption of innocence in favour of the
alleged criminal. An accused is not detained
in custody with the object of punishing him
on the assumption of his guilt. The granting
of bail in the case of a non-bailable offence
is a concession allowed to an accused
person. In the case of a bailable offence, bail
can be obtained as of right under Sec.
436(1), Cr.P.C., subject to restrictions under
Sec. 436(2). While considering an application
for bail, detailed discussion of the evidence
and elaborate documentation of the merits is
to be avoided. This requirement stems from
the desirability that no party should have
the impression that his case has been pre-
judged. Existence of a prima-facie case is
only to be considered. Elaborate analysis or
exhaustive exploration of the merits is not
required.............."
So also in the case of Prahalad Singh Bhati
vrs. NCT, Delhi, (2001) 4 SCC 280, the Apex Court
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has held as follows:-
"8......... While granting the bail, the court
has to keep in mind the nature of
accusations, the nature of evidence in
support thereof, the severity of the
punishment which conviction will entail, the
character, behaviours, means and standing
of the accused, circumstances which are
peculiar to the accused, reasonable
possibility of securing the presence of the
accused at the trial, reasonable
apprehension of the witnesses being
tampered with, the larger interests of the
public or the State and similar other
considerations. It has also to be kept in mind
that for the purposes of granting the bail the
legislature has used the words "reasonable
ground for believing" instead of "the
evidence" which means the Court dealing
with the grant of bail can only satisfy it (sic
itself) 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. It is
not expected, at this stage, to have the
evidence establishing the guilt of the
accused beyond reasonable doubt."
Taking note of the aforesaid law laid down in
the case of Niranjan Singh and another (supra) and
Prahalad Singh Bhati (supra) with regard to grant of
bail, when the petitioner has been indicted in a
heinous and serious offence prescribing stringent
punishment where evidence of the victim has already
recorded, the prayer made to grant bail appreciating
the contradiction is devoid of merit.
In view of the aforesaid law on bail and in the
facts and circumstances of the case, I am unable to
accept the submission to grant bail notwithstanding
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the decisions as rendered by Bombay High Court in
the case of Anirudha Radheshyam Yadav v. The
State of Maharashtra (Criminal Bail Application
No.2632 of 2019).
Accordingly, the prayer for bail of the
petitioner stands rejected.
However, the trial court is directed to conclude
the trial within six months hence, as the petitioner is
stated to be in custody for more than 4½ years
without being influenced by any of the observation
made aforesaid inasmuch as the trial court has no
binding tie with the aforesaid observation as it is
required to be solely guided by the law on
appreciation of evidence adduced while disposing of
the case and also this Court has expressed no
opinion with regard to the merit of the evidence
adduced in any manner while rejecting this petition
for bail.
.......................
S.Pujahari, J.
DA