Gujarat High Court
Sunitaben W/O Vijaybahi Harishchandra ... vs State Of Gujarat on 17 January, 2024
NEUTRAL CITATION
R/SCR.A/12672/2022 JUDGMENT DATED: 17/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (CANCELLATION OF BAIL) NO.
12672 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI Sd./-
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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 NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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SUNITABEN W/O VIJAYBAHI HARISHCHANDRA BATUNGE
Versus
STATE OF GUJARAT
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Appearance:
MR VEDANT RAJGURU, MR AJ YAGNIK(1372) for the Applicant(s) No. 1
MR ARVIND K THAKUR(2322) for the Respondent(s) No. 3
MR KS TAMAYACHE(2490) for the Respondent(s) No. 3
NOTICE SERVED for the Respondent(s) No. 2
MS AV PATEL, PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 17/01/2024
ORAL JUDGMENT
Rule. Learned APP waives service of Rule for Respondent Nos.1 and 2 and learned Advocate, Mr. Thakur, waives for Respondent No.3-original accused.
Page 1 of 35 Downloaded on : Sat Jan 20 20:37:29 IST 2024NEUTRAL CITATION R/SCR.A/12672/2022 JUDGMENT DATED: 17/01/2024 undefined
1. At the outset, relevant it would be to refer to the observations made by the Hon'ble Apex Court in the case of 'Bhagwan Singh vs. Dilip Kumar @ Deepu @ Depak And Another', reported in 2023 SCC Online SC 1059, recording that 'Rape' is a heinous crime and a blow on the dignity of women. The relevant observations made by the Apex Court at Paragraph-18 thereof, 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 ननायय स्त ननायर्य स्ततत ननायर्य स्तत पपूज्यन्त ननायर्य स्ततत ननायर्य स्तत रमन्त ननायर्य स्ततत ननायर्य स्तत त ननायर्य स्ततत ननायर्य स्तत दत ननायर्य स्ततवत ननायर्य स्ततनात ननायर्य स्तताः" (where women arewhere 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."
2. By way of this petition filed under Section 439(2) of the Code of Criminal Procedure, 1973 (in brief, 'the Code'), the petitioner seeks to assail the order dated 22.09.2022, passed by the learned Special Judge [POCSO], City Civil and Sessions Page 2 of 35 Downloaded on : Sat Jan 20 20:37:29 IST 2024 NEUTRAL CITATION R/SCR.A/12672/2022 JUDGMENT DATED: 17/01/2024 undefined Court, Ahmedabad ('the trial Court', herein after), in Criminal Misc. Application No. 6584 of 2022, whereby, the trial Court released the original accused-Respondent No.3, herein, on regular bail for the offence punishable under Sections Sections 376(2)(N), 376(3) and 506(2) of the Indian Penal Code, 1860 ('IPC', in short), and Sections 4, 5(L), 6 and 12 of the Protection of Children from Sexual Offences Act, 2012 (in brief, 'POCSO Act').
3. The brief facts, leading to the filing of the present petition, are that the original complainant-Petitioner, herein, lodged an FIR, being C.R. No. 11191040221676 of 2022 with Sardarnagar Police Station, Ahmedabad, for the offence punishable under Sections 376(2)(N), 376(3) and 506(2) of the IPC and Sections 4, 5(L), 6 and 12 of the the POCSO Act, wherein, she has stated that she is residing at the address mentioned in the FIR along with her two sons and a daughter- the victim, who happens to be her adopted daughter and who is the youngest amongst the siblings, whereas, her husband has passed away about nine years before the alleged incident. It is, further, stated that, at the time of incident, the victim was aged about 12 years. It is stated that the victim also has a separate cell phone of her own. It is, further, stated in the FIR that, since, the economical condition of the house of Respondent No.3-the accused is not good, she had hired the accused-Respondent No.3 for doing miscellaneous work before about five months of the alleged offence.
3.1 It is stated in the FIR that on 13.07.2022, the younger son Page 3 of 35 Downloaded on : Sat Jan 20 20:37:29 IST 2024 NEUTRAL CITATION R/SCR.A/12672/2022 JUDGMENT DATED: 17/01/2024 undefined of the Petitioner, namely Aniket, suddenly woke-up at late night and found that the victim was not present on her bed and he also heard some noises near the staircase of their house and when, the petitioner and her son went near the staircase, they found that Respondent No.3-accused was trying to remove the clothes of the victim. However, on seeing the petitioner and her son, Respondent No.3 fled from the scene.
3.2 According to the petitioner, when she inquired about the same from the victim, the victim told her that Respondent No.3-accused had met her on 25.06.2022 and he had been following her ever since with a view to allure her. The victim also informed the petitioner that Respondent No.3 had obtained her cell phone number and about four days prior to the alleged incident of 13.07.2022, Respondent No.3-accused told the victim that he would saw her some video game on the cell phone and thereby, asked her to take his call at late night, at about 02:00 a.m.. The victim, further, stated that in the night at about 02:00 a.m., Respondent No.3 called from his cell phone and asked her to come out of the house, under the pretext of showing her some video game, and when the victim went out, Respondent No.3 threatened her and committed rape on her, against her will. This continued for several days, until the petitioner and her son caught Respondent No.3 red handed. The petitioner, therefore, lodged the FIR in question with Sardarnagar Police Station.
3.3 Pursuant to the registration of the FIR, Respondent No.3- accused came to be arrested and he was sent into judicial Page 4 of 35 Downloaded on : Sat Jan 20 20:37:29 IST 2024 NEUTRAL CITATION R/SCR.A/12672/2022 JUDGMENT DATED: 17/01/2024 undefined custody. After the filing of the charge-sheet, Respondent No.3 filed an application for regular bail, wherein, the trial Court passed the impugned order.
3.4 It is the case of the petitioner that after being released on bail, Respondent No.3 committed breach of the condition of the bail and also made objectionable posts on the social media. So as to threaten and intimidate the witnesses and the victim. Hence, the present petition is filed, seeking cancellation of the bail granted by the trial Court.
4. Learned Advocate, Mr. Vedant Rajguru, appearing for learned Advocate, Mr. Yagnik, for the petitioner submitted that the petitioner seeks to assail the impugned order passed by the trial Court on the ground that, the same is passed on irrelevant considerations. It was submitted that the trial Court ought to have taken into consideration the fact that the accused-Respondent No.3 is charged with the grave offence punishable under Section 376 of the IPC, so also under the provisions of the POCSO Act. He submits that at the time of alleged offence, the victim was only 12 years of age.
4.1 Learned Advocate, Mr. Rajguru, invited the attention of this Court to the impugned order passed by the trial Court and submitted that the trial Court has recorded that, since, the medical report suggests that there was no external / internal injury found on the private part of the victim, Respondent No.3 deserves to be granted bail. It was submitted that such a finding recorded by the trial Court is contrary to the Page 5 of 35 Downloaded on : Sat Jan 20 20:37:29 IST 2024 NEUTRAL CITATION R/SCR.A/12672/2022 JUDGMENT DATED: 17/01/2024 undefined statements and objects of the POCSO Act.
4.2 It was submitted that another irrelevant aspect, which has weighed with the trial Court, is that Respondent No.3 is a student. It was submitted that, however, before recording such a finding, the same was not verified. It was submitted that, on inquiring about the same under the Right to Information Act, the concerned school has clearly opined vide communication dated 21.10.2022 that Respondent No.3 appeared in Standard- 10 examination and failed in the year 2020 and thereafter, he did not appear in Board examination in March, 2021 and 2022 and, in fact, Respondent No.3 did not study in the said school after 2020. The communication dated 21.10.2022 is produced at Page-88 to this petition.
4.3 It was submitted that the third consideration, which weighed with the trial Court is that the charge-sheet has already been filed. It was submitted that considering the fact that Respondent No.3 is facing serious accusations under the relevant provisions of the IPC as well as under the POCSO Act, at the behest of the victim, who was just 12 years of age, at the time of incident, the trial Court ought not to have given much importance to the filing of the charge-sheet, which is just a part of procedure under the Code.
4.4 It was submitted that, while passing the impugned order, the trial Court completely ignored the statement of the victim, recorded under Section 164 of the Code, wherein, she has categorically stated as to how the offence was committed by Page 6 of 35 Downloaded on : Sat Jan 20 20:37:29 IST 2024 NEUTRAL CITATION R/SCR.A/12672/2022 JUDGMENT DATED: 17/01/2024 undefined Respondent No.3-accused. She, in unequivocal terms, has stated in the Statement that how accused has committed rape upon her, how she was maltreated. It was, therefore, submitted that the trial Court has committed a grave error by exercising discretion in favour of Respondent No.3.
4.5 Learned Advocate, Mr. Rajguru, also invited the attention of this Court to the post-release conduct of Respondent No.3. It was submitted that, after being released on regular bail, Respondent No.3 made certain objectionable posts on his social media account, viz. "King is Come Soon" and "King is back". Respondent No.3 is also alleged to have circulated his videos on social media, which shows him uttering the words, "Aaj Jail, Kal Bail, Parso Tumhare Saath Wohi Purana Khel", i.e. today jail, tomorrow bail and day after tomorrow, (I shall play) the same old game with you (i.e. the victim). It was submitted that such social media posts and circulation of videos amount to threatening the witnesses and more particularly the victim as well as glaring example of misuse of liberty. The photocopies of the alleged social media posts are produced on record vide Annexure-H to this petition. It was, therefore, prayed that the bail granted to Respondent No.3 be canceled.
4.6. The attention of this Court was also drawn to the conditions of bail enumerated in the order of the trial Court dated 22.09.2022, more particularly, Condition No. (3), which provides that Respondent No.3 shall neither enter Sardarnagar Police Station nor shall he attempt to contact the victim nor any witnesses, till the trial is over.
Page 7 of 35 Downloaded on : Sat Jan 20 20:37:29 IST 2024NEUTRAL CITATION R/SCR.A/12672/2022 JUDGMENT DATED: 17/01/2024 undefined 4.6.1 It was submitted that despite of the specific condition imposed by the trial Court, as stated above, Respondent No.3 entered in Sardarnagar Police Station area and thereby, committed the breach of the same. In support of his submissions, learned Advocate has produced on record the hard copy of CCTV footage of the area with additional affidavit vide Annexure-R-1, on Page-108 to this petition.
4.7 Learned Advocate, Mr. Rajguru, submitted that in view of the fact that, while granting bail, the trial Court took into account irrelevant considerations. Along with such irrelevant consideration it is also apposite to take into consideration the post-release conduct of Respondent No.3, which is in clear breach of the conditions of bail imposed by the trial Court, this petition be allowed and the bail granted to Respondent No.3 be canceled.
4.8 Above arguments are canvassed by the learned Advocate for the petitioner to cancel the bail granted to Respondent No.3-accused.
5. Learned APP, Ms. Patel, appearing for Respondent Nos. 1 and 2 adopted the submissions made by the learned Advocate for the petitioner and further submitted that the concerned IO verified the contents of the compact disk and pend drive provided by the petitioner and report is also obtained from social media platform with regard to posts and videos circulated by Respondent No.3 and it is found that Respondent Page 8 of 35 Downloaded on : Sat Jan 20 20:37:29 IST 2024 NEUTRAL CITATION R/SCR.A/12672/2022 JUDGMENT DATED: 17/01/2024 undefined No.3 is using the cell phone of his sister. He also has posted the post on social media Meta Platform, as alleged by the petitioner. It was submitted that police also verified the aspect of breach of condition No. (3) of bail by Respondent No.3 and it is found that Respondent No.3, in fact, had entered within the limits of Sardarnagar Police Station area on 14.01.2023. Aforesaid aspect is also confirmed by two witnesses, namely Rishikant Ramchandra Dholakia and Savitriben Prakashbhai Bodiyabhai Bhogekar, who are the residents of the same locality, as that of Respondent No.3. It was, therefore, prayed that this petition be allowed.
6. On the other hand, learned Advocate, Mr. Thakur, appearing for Respondent No.3-accused supported the order of the trial Court and denied all the allegations leveled against Respondent No.3-accused. It was submitted that Respondent No.3 has not committed breach of any of the conditions of bail and has not entered within the limits of Sardarnagar Police Station area. It was submitted that, in fact, Respondent No.3 was at Bhavnagar, at the relevant point of time and he is coming to Ahmedabad only for the purpose of attending the criminal proceedings. It was submitted that the petitioner as well as the prosecution has failed to point out any supervening circumstances. It was submitted that cancellation of bail, once granted by a competent Court, is a serious thing, as the same deals with the personal liberty of an individual. It was submitted that, ordinarily, bail once granted shall not be canceled, unless some compelling circumstances are established.
Page 9 of 35 Downloaded on : Sat Jan 20 20:37:29 IST 2024NEUTRAL CITATION R/SCR.A/12672/2022 JUDGMENT DATED: 17/01/2024 undefined 6.1 Referring to the medical papers of the victim, it was submitted that the hymen of the victim was torn precisely and no internal injury was found on her private part, and therefore, the offence of rape is not made out.
6.2 It was, further, submitted that it is neither the case of the petitioner nor of the prosecution that Respondent No.3 attempted to contact or threaten either the victim or any of the witnesses of the case and therefore, this petition may not be entertained.
6.3 It was submitted that there is nothing produced on record to indicate that the liberty of Respondent No.3 shall be adverse to a fair trial and therefore, this petition be rejected.
7. Having heard the learned Advocates for the parties and having perused the material on record, at the outset, it would be relevant to refer to the decision of the Hon'ble Apex Court in the case of 'Jagjeet Singh Versus Ashish Mishra', reported in (2022) 9 SCC 321, wherein, the Apex Court re- appreciate and re-iterated the factors for grant of bail, as is laid down in the case of 'Prasanta Kumar Sarkar v. Ashis Chatterjee & Anr.', reported in (2010) 14 SCC 496, and after taking into consideration the other precedents mentioned, therein, went on to observe as under at Paragraph-9 thereof;
"9.However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and Page 10 of 35 Downloaded on : Sat Jan 20 20:37:29 IST 2024 NEUTRAL CITATION R/SCR.A/12672/2022 JUDGMENT DATED: 17/01/2024 undefined 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: (where women arei) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (where women areii) nature and gravity of the accusation; (where women areiii) severity of the punishment in the event of conviction; (where women areiv) danger of the accused absconding or fleeing, if released on bail; (where women arev) character, behaviour, means, position and standing of the accused; (where women arevi) likelihood of the offence being repeated; (where women arevii) reasonable apprehension of the witnesses being influenced; and (where women areviii) danger, of course, of justice being thwarted by grant of bail.
(where women areEmphasis Supplied) "
7.1 At this juncture, if, we refer to the reasons given by the trial Court for granting bail to Respondent No.3-accused, which are given at Paragraph-6, the same reads thus;
"6. I have gone through the record, I have given my thoughtful consideration to the submissions made by the rival parties. I have also read the affidavit filed by the Investigating Officer, written objections filed by the complainant and also I have heard the complainant / victim. On careful consideration of the fact of the present application and FIR, it transpires that the applicant has been arrested under POCSO Act and under the penal Page 11 of 35 Downloaded on : Sat Jan 20 20:37:29 IST 2024 NEUTRAL CITATION R/SCR.A/12672/2022 JUDGMENT DATED: 17/01/2024 undefined offences. Prima facie, it transpires that the applicant was serving as maid in the house of the complainant and investigation is complete and charge-sheet is also filed and as per papers of investigation, prima facie it appears that medical evidence is also collected wherein no external injury were found on the private part of the victim. The application is also 19 years old and I studying and if the applicant be released by imposing strict conditions ordering not to enter into in the area where victim resides, it would just and proper and would serve the purpose of justice as trial will take considerable time to decide the case and hence, this court is inclined to exercise discretion in favour of the present applicant by imposing strict condition and pass the following order;"
7.2 What appears from the reasons assigned by the trial Court, while exercising discretion in favour of Respondent No.3-accused, is that the medical report indicated that there was no external injury found on the private part of the victim, Respondent No.3-accused is a young boy aged 19 years and is pursuing his studies and that the charge-sheet is filed and therefore, the evidence is safe with the prosecuting agency. Therefore, while imposing the condition of not to enter within the limits of Sardarnagar Police Station area, amongst other usual conditions, the trial Court granted Respondent No.3- accused bail.
7.3 From the above, it appears that the factors, which are taken into consideration by the trial Court, while granting bail, Page 12 of 35 Downloaded on : Sat Jan 20 20:37:29 IST 2024 NEUTRAL CITATION R/SCR.A/12672/2022 JUDGMENT DATED: 17/01/2024 undefined are totally irrelevant and contrary to the decision of the Apex Court, referred to herein above. It is not in dispute that, at the time of alleged offence, the victim was only 12 years of age and this aspect does not appear to have been taken into account by the trial Court. Therefore, this Court had called for the statement of the victim, recorded under Section 164 of the Code. Perusing the statement it appears that the victim has categorically narrated the role played by Respondent No.3- accused as well as the manner, in which Respondent No.3- accused continued to physically abuse the victim for several days. The statement given by the victim under Section 164 of the Code clearly indicates the involvement of Respondent No.3-accused in the alleged offence. From a perusal of the impugned order, there does not appear to be even a whisper with regard to the statement given by the victim under Section 164 of the Code and the trial Court appears to have passed the order granting bail in a very casual manner. Even, the FIR of the alleged offence, itself, is sufficient enough to implicate the accused in the offence alleged against him.
7.4 Even at the cost of repetition, it may be noted that the victim was only 12 years of age, on the date of the alleged offence. Even, the age factor is not taken into account by the trial Court. On conjoint reading of the FIR as well as statement of the victim, recorded under Section 164 of the Code, prima facie it appears Respondent No.3-accused committed the offence alleged against him. As it is stage of cancellation of bail, this Court refrains from discussing evidence in detail.
Page 13 of 35 Downloaded on : Sat Jan 20 20:37:29 IST 2024NEUTRAL CITATION R/SCR.A/12672/2022 JUDGMENT DATED: 17/01/2024 undefined 7.5 It is well settled principle of law that even the sole testimony of the victim is sufficient to record conviction of the accused. The victim, in this case, is not an accomplice and in fact, she became the victim of lust of another person, i.e. Respondent No.3-accused, who appears to have perpetrated crime by exerting force on her. It is, unfortunate, that the learned trial Court did not take pain to peruse the FIR and the statement of the victim recorded under Section 164 of the Code and just by picking words / some line from here and there from the medical report, came to the conclusion that as there is no external injury found on the private part of the victim, the same would raise suspicion about the case being put-forth by the first informant. While doing so, the trial Court also did not take care to refer to the history given by the victim before the concerned Medical Officer, who examined her, pursuant to the registration of the FIR. Mere absence of injury on the private part or stain on the body of the victim or clothes cannot be treated as a ground to raise suspicion against the case of the prosecution, especially, when the victim was just 12 years of age, at the time of commission of the offence.
7.6 It is true that, while granting bail, it is imperative to assign reasons for the same. In 'Puran Vs. Rambilas and Another', reported in AIR 2001 SC 2023, the Hon'ble Apex Court observed thus at Paragraph-9 thereof;
"9. ...It has been held that generally speaking the grounds for cancellation of bail broadly are interference or attempt to interfere with the due course of Page 14 of 35 Downloaded on : Sat Jan 20 20:37:29 IST 2024 NEUTRAL CITATION R/SCR.A/12672/2022 JUDGMENT DATED: 17/01/2024 undefined administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. It is, however, to be noted that this Court has clarified that these instances are merely illustrative and not exhaustive. One such ground for cancellation of bail would be where ignoring material and evidence on record a perverse order granting bail is passed in a heinous crime of this nature and that too without giving any reasons. Such an order would be against principles of law. Interest of justice would also require that such a perverse order be set aside and bail be cancelled. It must be remembered that such offences are on the rise and have a very serious impact on the Society. Therefore, an arbitrary and wrong exercise of discretion by the trial court has to be corrected."
7.7 As discussed herein above, in the case on hand, the impugned order lacks reasons and as such, it appears to have been passed, de hors the basic principles of granting bail. It is perverse order. It is aweful.
7.8. In the case of 'Dinesh M.N. Vs. State of Gujarat', reported in AIR 2008 SC 2318, the Hon'ble Apex Court, after referring to the decision in the case of 'Puran' (Supra), observed as under at Paragraph-14;
"14. The perversity as highlighted in Puran's case (where women aresupra) can also flow from the fact that as noted above, Page 15 of 35 Downloaded on : Sat Jan 20 20:37:29 IST 2024 NEUTRAL CITATION R/SCR.A/12672/2022 JUDGMENT DATED: 17/01/2024 undefined irrelevant materials have been taken into consideration adding vulnerability to the order granting bail. The irrelevant materials should be of a substantial nature and not of a trivial nature. In the instant case, the trial Court seems to have been swayed by the fact that Sohrabuddin had shady reputation and criminal antecedents. That was not certainly a factor which was to be considered while granting bail. It was nature of the acts which ought to have been considered. By way of illustration, it can be said that the accused cannot take a plea while applying for bail that the person whom he killed was a hardened criminal. That certainly is not a factor which can be taken into account. Another significant factor which was highlighted by the State before the High Court was that an FIR allegedly was filed to divert attention from the fake encounter. The same was not lodged by the Gujarat Police. The accused was the leader of the Rajasthan team and the other officials were Abdul Rehman, Himanshu Singh, Mohan Singh, Shyam Singh and Jai Singh. The first named Abdul Rehman had lodged the FIR. It is pointed out from the General Diary in respect of entry on 26.11.2005 that accused Dinesh was present. In FIR CR-I 5/2005 also the presence of Dinesh has been noted. The relevance of these factors does not appear to have been noticed by the High Court. In other words, relevant materials were kept out of consideration. Once it is concluded that bail was granted on untenable grounds, the plea of absence of supervening circumstances has no leg to stand."Page 16 of 35 Downloaded on : Sat Jan 20 20:37:29 IST 2024
NEUTRAL CITATION R/SCR.A/12672/2022 JUDGMENT DATED: 17/01/2024 undefined 7.9 The aspect of balancing of two interests has again been discussed lucidly in 'Neeru Yadav v. State of Uttar Pradesh & Anr.', reported in (2014) 16 SCC 508, in the following words at Paragraphs- 16 and 17 thereof:
"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 Page 17 of 35 Downloaded on : Sat Jan 20 20:37:29 IST 2024 NEUTRAL CITATION R/SCR.A/12672/2022 JUDGMENT DATED: 17/01/2024 undefined to that extent which would bring chaos nd 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 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(where women areAll)] 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 heinous offences. The High Court has failed to take note of the same. Therefore, the order has to pave the path of Page 18 of 35 Downloaded on : Sat Jan 20 20:37:29 IST 2024 NEUTRAL CITATION R/SCR.A/12672/2022 JUDGMENT DATED: 17/01/2024 undefined extinction, for its approval by this Court would tantamount to travesty of justice, and accordingly we set it aside."
7.10 The Hon'ble Apex Court in the recent judgment in the case of 'Deepak Yadav vs State of UP & Anr.', reported in 2022 Livelaw (SC) 562, has observed that the bail once granted should not be canceled in mechanical manner. But at the same time, if the bail is granted on untenable grounds it can lead to cancellation of bail. The relevant Paragraph Nos. 30 to 34 are extracted herein 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 (where women arewhich 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 :-
(where women arei) interference or attempt to interfere with the due course of administration of Justice; (where women areii) evasion or attempt to evade the due course of justice;Page 19 of 35 Downloaded on : Sat Jan 20 20:37:29 IST 2024
NEUTRAL CITATION R/SCR.A/12672/2022 JUDGMENT DATED: 17/01/2024 undefined (where women areiii) abuse of the concession granted to the accused in any manner;
(where women areiv) Possibility of accused absconding; (where women arev) Likelihood of/actual misuse of bail; (where women arevi) Likelihood of the accused tampering with the evidence or threatening witnesses.
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 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 Page 20 of 35 Downloaded on : Sat Jan 20 20:37:29 IST 2024 NEUTRAL CITATION R/SCR.A/12672/2022 JUDGMENT DATED: 17/01/2024 undefined 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 (where women areSupra) 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 Another held 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, Page 21 of 35 Downloaded on : Sat Jan 20 20:37:29 IST 2024 NEUTRAL CITATION R/SCR.A/12672/2022 JUDGMENT DATED: 17/01/2024 undefined 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."
7.11 As discussed herein above, the trial Court has erroneously considered the material on record and came to the conclusion, which is contrary to the settled principles for granting bail and which would amount to total non-application of mind on the part of the trial Court. Further, if, the provisions of Section 4, 5(L) and 6 of the POCSO Act, read with Section 376(2)(N) and 376(3) of the IPC, for which Respondent No.3- accused is charged, are perused, on successful conviction, the same would entail the punishment for rest of his natural life along with fine. This aspect and consideration on this issue has been given a complete go-by by the trial Court. The heinousness in the offence is rightly considered, which renders trial Court's order bad in law. This Court fails to understand that the victim, who was just 12 years of age, at the time of commission of offence, has clearly stated in her statement, recorded under Section 164 of the Code, that Respondent No.3 Page 22 of 35 Downloaded on : Sat Jan 20 20:37:29 IST 2024 NEUTRAL CITATION R/SCR.A/12672/2022 JUDGMENT DATED: 17/01/2024 undefined accused repeatedly exploited her physically and despite that the concerned trial Court did not even bother to look at the said statement.
7.12 It is true that a Court, while deciding an application for bail, is not required to discuss the merits and de-merits of the case by giving detailed and elaborated reasons and proceed to inquire into the case put-forth by the prosecution. Elaborate details cannot be recorded so as to give 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. 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 from 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.
7.13 The Hon'ble Apex Court in the case of 'Rohit Bishnoi vs. State of Rajasthan & Anr.', reported in 2023 (0) AIR Page 23 of 35 Downloaded on : Sat Jan 20 20:37:29 IST 2024 NEUTRAL CITATION R/SCR.A/12672/2022 JUDGMENT DATED: 17/01/2024 undefined (SC) 3547, has observed in Paragraphs-18 to 22, as under:
"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: (where women arei) The seriousness of the offence; (where women areii) The likelihood of the accused fleeing from justice; (where women areiii) The impact of release of the accused on the prosecution witnesses; (where women areiv) 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- [(where women are1978) 1 SCC 240] ; Prahlad Singh Bhati vs. NCT, Delhi [(where women are2001) 4 SCC 280] ; Anil Kumar Yadavvs. State (where women areNCT of Delhi) - [(where women are2018) 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- [(where women are2002) 3 SCC 598] ; Prasanta Kumar Sarkar vs. Ashis Chaterjee [(where women are2010)14 SCC 496] ; Ramesh Bhavan Rathod vs. Vishanbhai Hirabhai Makwana (where women areKoli) [(where women are2021) 6 SCC 230] ;Brijmani Devi vs. Pappu Kumar (where women aresupra).Page 24 of 35 Downloaded on : Sat Jan 20 20:37:29 IST 2024
NEUTRAL CITATION R/SCR.A/12672/2022 JUDGMENT DATED: 17/01/2024 undefined
20. Reference may also be made to recent decisions of thisCourt in Manoj Kumar Khokhar vs. State ofRajasthan [2022 SCC OnLine SC 30] and Jaibunisha vs. Meharban [ (where women are2022) 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 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 Page 25 of 35 Downloaded on : Sat Jan 20 20:37:29 IST 2024 NEUTRAL CITATION R/SCR.A/12672/2022 JUDGMENT DATED: 17/01/2024 undefined 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-a-vis the offence/s alleged against an accused."
7.14 As observed and held herein above, the trial Court appears to have exercised the judicial discretion improperly and has granted bail on the irrelevant grounds, which would amount to arbitrary exercise of powers. The trial Court has, therefore, committed a serious error and lapse while exercising judicial discretion and has landed itself in committing an apparent error on the facts as well as on law. It is well settled that, if, the bail is granted on wrong or extraneous consideration, the same can be canceled or set aside.
7.15 In addition to the above, what further appears from the material produced on record is that Respondent No.3-accused has posted some messages on Whatsapp and Instagram social media platforms, after being released on regular bail, and also a video posts, which portrays him allegedly uttering the words, "Aaj Jail, Kal Bail, Parso Tumhare (i.e. the victim) Saath Wohi Purana Khel", i.e. today jail, tomorrow bail and day after tomorrow, (I shall play) the same old game with you (i.e. the victim). Such an act on the part of Respondent No.3-accused would go to show that he does not have even slightest respect for the order of bail passed by the trial Court, on certain Page 26 of 35 Downloaded on : Sat Jan 20 20:37:29 IST 2024 NEUTRAL CITATION R/SCR.A/12672/2022 JUDGMENT DATED: 17/01/2024 undefined conditions, and where, one such condition is not to intimidate or threaten the victim and the witnesses. Not only that Respondent No.3-accused, though is specifically prohibited by the trial Court from entering within the limits of Sardarnagar Police Station are, in blatant disregard to the said order, Respondent No.3-accused entered within the limits of Sardarnagar Police Station area. Aforesaid aspects gets support from the statement of two witnesses, namely Rishikant Ramchandra Dholakia and Savitriben Prakashbhai Bodiyabhai Bhogekar, who are residing in the same locality, as that of Respondent No.3. Such an act on the part of Respondent No.3- accused has also been recorded in the CCTV footage. Police has also confirmed the aforesaid aspect by recording the statements of the aforesaid two witnesses on 06.02.2023. The messages in question circulated by Respondent No.3-accused on the social media platforms as well as the CCTV footage are forming the part of the record.
7.16 The concerned trial Court also appears to have ignored the provisions of Sections 29 and 30 of the POCSO Act, while passing the impugned order. To be noted that Respondent No.3-accused, herein, is charged with the offence punishable under Sections 4, 5(L), 6 and 12 of the POCSO Act.
7.16.1 Section 4 of POCSO Act provides punishment for penetrative sexual assault and maximum punishment is prescribed for life imprisonment with fine. Section 6 of the POCSO Act provides punishment for aggravated penetrative sexual assault and maximum punishment is imprisonment of Page 27 of 35 Downloaded on : Sat Jan 20 20:37:29 IST 2024 NEUTRAL CITATION R/SCR.A/12672/2022 JUDGMENT DATED: 17/01/2024 undefined life which shall mean imprisonment for the remainder of natural life with fine. Section 12 of the POCSO Act provides punishment for sexual harassment and maximum punishment prescribed is of three years with fine. This is a deterrent punishment. The Court while deciding the case where the punishment is quite deterrent has to look for and to ascertain all the relevant consideration and other aspect. Accused who is charged for such deterrent punishment, his bail plea cannot be lightly considered.
7.16.2 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."
7.16.3 Section 30 of the POCSO Act also provides presumption of culpable mental state which reads thus:
"(where women are1) 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 state with respect to the act charged as an offence in Page 28 of 35 Downloaded on : Sat Jan 20 20:37:29 IST 2024 NEUTRAL CITATION R/SCR.A/12672/2022 JUDGMENT DATED: 17/01/2024 undefined that prosecution.
(where women are2) 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 plea of presumption of innocence cannot be pressed into service.
7.17 In the case of 'State of Bihar vs. Rajballav Prasad @ Rajballav Pd. Yadav @ Rajballabh Yadav', reported in 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 Page 29 of 35 Downloaded on : Sat Jan 20 20:37:29 IST 2024 NEUTRAL CITATION R/SCR.A/12672/2022 JUDGMENT DATED: 17/01/2024 undefined 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 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."
7.18 In view of the above discussion and in view of the fact that the victim was just 12 years of age, at the time of commission of offence by Respondent No.3-accused, so also the details given by her, in her statement, recorded under Section 164 of the Code, this Court finds no hesitation in coming to the conclusion that the concerned trial Court has committed a grave error by passing the impugned order, by giving weightage to the irrelevant considerations and by taking into account extraneous grounds. This Court has also taken note of the post-release conduct of Respondent No.3-accused, Page 30 of 35 Downloaded on : Sat Jan 20 20:37:29 IST 2024 NEUTRAL CITATION R/SCR.A/12672/2022 JUDGMENT DATED: 17/01/2024 undefined which shall dis-entitle him to get the relief of liberty.
7.19 Before parting, it is apposite to reproduce the long Preamble of the POCSO Act, which reads as follows;
"An Act to protect children from offences of sexual assault, sexual harassment and pornography and provide for establishment of Special Courts for trial of such offences and for matters connected therewith or incidental thereto.
Whereas clause (where women are3) of article 15 of the Constitution, inter alia, empowers the State to make special provisions for children;
And whereas, the Government of India has
acceded on the 11th December, 1992 to the
Convention on the Rights of the Child, adopted by the General Assembly of the United Nations, which has prescribed a set of standards to be followed by all State parties in securing the best interests of the child;
And whereas it is necessary for the proper development of the child that his or her right to privacy and confidentiality be protected and respected by every person by all means and through all stages of a judicial process involving the child;
And whereas it is imperative that the law Page 31 of 35 Downloaded on : Sat Jan 20 20:37:29 IST 2024 NEUTRAL CITATION R/SCR.A/12672/2022 JUDGMENT DATED: 17/01/2024 undefined
operates in a manner that the best interest and well being of the child are regarded as being of paramount importance at every stage, to ensure the healthy physical, emotional, intellectual and social development of the child;
And whereas the State parties to the Convention on the Rights of the Child are required to undertake all appropriate national, bilateral and multilateral measures to prevent -
(where women area) the inducement or coercion of a child to engage in any unlawful sexual activity;
(where women areb) the exploitative use of children in prostitution or other unlawful sexual practices;
(where women arec) the exploitative use of children in pornographic performances and materials;
And whereas sexual exploitation and sexual abuse of children are heinous crimes and need to be effectively addressed."
7.20 The Hon'ble Apex Court, in the case of 'Eera through Dr. Manjula Krippendorf Vs. State (NCT of Delhi) and another', while dwelling upon the purpose of the Statement of Objects and Reasons and the Preamble of the POCSO Act, observed that;
Page 32 of 35 Downloaded on : Sat Jan 20 20:37:29 IST 2024NEUTRAL CITATION R/SCR.A/12672/2022 JUDGMENT DATED: 17/01/2024 undefined "20. ... the very purpose of bringing a legislation of the present nature is to protect the children from the sexual assault, harassment and exploitation, and to secure the best interest of the child. On an avid and diligent discernment of the preamble, it is manifest that it recognizes the necessity of the right to privacy and confidentiality of a child to be protected and respected by every person by all means and through all stages of a judicial process involving the child. Best interest and well being are regarded as being of paramount importance at every stage to ensure the healthy physical, emotional, intellectual and social development of the child. There is also a stipulation that sexual exploitation and sexual abuse are heinous offences and need to be effectively addressed. The statement of objects and reasons provides regard being had to the constitutional mandate, to direct its policy towards securing that the tender age of children is not abused and their childhood is protected against exploitation and they are given facilities to develop in a healthy manner and in conditions of freedom and dignity. There is also a mention which is quite significant that interest of the child, both as a victim as well as a witness, needs to be protected. The stress is on providing child- friendly procedure. Dignity of the child has been laid immense emphasis in the scheme of legislation. Protection and interest occupy the seminal Page 33 of 35 Downloaded on : Sat Jan 20 20:37:29 IST 2024 NEUTRAL CITATION R/SCR.A/12672/2022 JUDGMENT DATED: 17/01/2024 undefined place in the text of the POCSO Act."
7.20.1 Thus, what appears is that the POCSO Act has been legislated, keeping in view the fundamental concept under Article 15 of the Constitution that empowers the State to make special provisions for children and also Article 39(f), which provides that the State shall, in particular, direct its policy towards securing that the children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. The Statement of Objects and Reasons of the Act indicate the focus for reduction of child abuse and protection of children from the offences of sexual assault, sexual harassment and pornography, etc. 7.21 As discussed herein above, what can be said is that the learned trial Court, in such a serious case, where, the age of the victim was just 12 years, at the time of commission of the offence, and who was repeatedly, physically assaulted and exploited by Respondent No.3-accused, granted bail in the most unrealistic and casual manner. Therefore, the impugned order cannot be sustained and deserves to be set aside.
8. For the foregoing reasons, this petition succeeds and is allowed. The impugned order dated 22.09.2022, passed by the learned Special Judge [POCSO], City Civil and Sessions Court, Ahmedabad, in Criminal Misc. Application No. 6584 of Page 34 of 35 Downloaded on : Sat Jan 20 20:37:29 IST 2024 NEUTRAL CITATION R/SCR.A/12672/2022 JUDGMENT DATED: 17/01/2024 undefined 2022, is hereby quashed and set aside.
8.1 Respondent No.3-accused is ordered to surrender before the concerned authority within the period of one week, from today, failing which the concerned authorities shall be at liberty to initiate necessary legal actions against Respondent No.3-accused. Rule is made absolute, accordingly.
Direct service is permitted.
Sd./-
(J. C. DOSHI,J) UMESH/-
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