Judgment:
(Prayer: Crl.P filed U/s.439 (2) Cr.P.C by the State for the petitioner praying that this Hon ble Court may be pleased to allow the petition and cancel the order of bail dated 16.12.2014 passed in Crl.Misc.No.1451 of 2014 on the file of the learned Prl.S.J. at Hassan In Cr.No.273/2014 of Alur P.S., Hassan which registered for the offence P/U/S 506,376 of IPC in the interest of justice and equity.)
ORDER ON THE BAIL APPLICATION FILED UNDER SECTION 439 (2), Cr.P.C.
1. The present petition is filed by the State requesting the court to cancel the bail granted to the respondent-accused by the III Additional Sessions Judge, Hassan, in Crl.Misc.145/03 on 16.12.2014 in a criminal case in Crime No.273/14 filed by Alur police station, Hassan District, for the offences punishable under Sections 506 and 376, I.P.C.
2. The allegation made against the respondent-accused is that on 12.8.2014 at 5.30 p., accused forcibly dragged the complainant lady to the land in Survey No.131/1 of Halebelur village in which maize crop was standing, and raped her. It is further alleged that he threatened to kill her if she were to inform about the same to anybody. It is stated that the victim lady came to Bengaluru and lodged first information 3 days after the alleged incident and the case was registered and transferred to Alur police station. After concluding investigation, charge sheet is filed for the above said offences.
3. Four months after his arrest, the accused chose to file an application under Section 439, Cr.P.C. seeking regular bail before the sessions court, Hassan, and he is enlarged on bail. The reasons assigned by the learned sessions judge are found at paragraph 10 at pages 4 and 5 of the order.
4. What is essentially argued before this court by the learned HCGP is that the sessions judge has exercised the discretion vested in him under Section 439, Cr.P.C. wrongly and that he has not looked into the seriousness of the offence alleged against the accused. It is further argued that the accused was aged 50 years and had committed rape of a girl hardly 20 years, that too, taking advantage of the lady being alone in the field, and threatening her with dire consequences. According to the learned HCGP, the allegation made against the accused is of serious nature and the punishment contemplated therefor is RI for a period of 10 years along with fine, and therefore, regular bail granted by the sessions judge is liable to be cancelled.
5. Per contra, learned counsel for the accused has submitted that the learned judge, while granting bail, has taken into consideration the delay in filing the first information, the place of lodging the complaint, conclusion of investigation and non-submission of the report by Forensic Science Laboratory (FSL). It is further argued that as many as three conditions have been imposed on the accused and he has been promptly complying with all the conditions and has not violated them in any manner. He has further argued that no supervening circumstances are forthcoming to cancel bail. He has requested this court to dismiss the application filed under Section 439(2), Cr.P.C.
6. After going through the records and the arguments of the learned HCGP and learned counsel for the accused, the following point arises for the consideration of this court:
Whether valid and justifiable grounds are made out to cancel bail granted to the accused on 16.1.2014 at this stage?
REASONS
7. As could be seen from the impugned order dated 16.12.2014, the allegation is that the accused who is aged 50 years forcibly took the victim girl aged 20 years to the land in which maize crop was standing and raped her and even threatened her with dire consequences to her life if she were to inform the same to anybody. Though the incident in question is stated to have taken place within the purview of Alur taluk, the victim came to Bengaluru since she is working in the city and lodged the first information after three days of the incident, on the basis of which the jurisdictional police registered a case and transferred it to Alur police station.
8. Of course investigation had been completed by the time the application seeking bail was filed by the accused before this court. The reasons assigned by the learned sessions judge to grant bail are found in paragraph 10 at page 4 of the order and it is extracted below:
10. I have bestowed my anxious consideration to the arguments put forth by the learned counsel for the petitioner and the learned Public Prosecutor. I have carefully perused the records. Record reveals that the respondent police have registered the crime against the petitioner for the offences punishable under Sections 376 and 506 of the Indian Penal Code. The investigation is completed and charge sheet has been filed. The offences alleged against the petitioner are heinous in nature, but it is the earlier stage to come to the conclusion that the petitioner has committed the alleged offences. Whether the petitioner has committed the alleged offences or not, it needs elaborate trial. The petitioner is in custody since four months and at this stage, if the petitioner were detained in custody, no purpose would be served. Instead if the bail is granted to the petitioner with stringent conditions, apprehension of the prosecution can be met. Under the circumstances, I answer the above point in the affirmative.
9. It is true that the medical officer was not able to give any opinion because he had not yet received the report from FSL. Admittedly the undergarment of the victim girl had been sent to FSL to have an opinion and it had not yet been received by the medical officer.
10. Normally delay in lodging a complaint relating to a case of rape should not be blown out of proportion. The relevant observation made by the Hon ble apex court in the case of STATE OF PUNJAB .v. GURMIT SINGH and OTHERS (1996(2) SCC 384) is extracted below:
The courts cannot overlook the fact that in sexual offences, delay in the lodging of the FIR can be due to variety of reasons, particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged.
11. As rightly pointed out by the learned HCGP, rape is a heinous offence and the maximum punishment contemplated can extend to 10 years RI along with fine. While considering the bail application relating to serious offences like murder, rape, dacoity, factors like the gravity of the offence, nature of allegations made and the maximum punishment contemplated therefor and the possibility of the accused threatening or interfering with the prosecution witnesses will have to be taken into consideration. Learned HCGP is right in pointing out that offences against women, children, members of Scheduled Caste/Scheduled Tribe and economic offences will have a great impact on the society. There is a lot of force in the said submission.
12. The Hon ble apex court in the case of DOLAT RAM AND OTHERS .V. STATE OF HARYANA ([1995] 1 SCC 349) has held that rejection of bail in a non-bailable case at the initial stage and cancellation of bail already granted, have to be considered and dealt with on different basis. It is further reiterated that very cogent and overwhelming circumstances are necessary to cancel the bail already granted. According to the Hon ble apex court, broad grounds for cancellation of bail are:
i) interference or attempt to interfere with the due course of administration of justice.
ii) evasion, or attempt to evade the due course of justice or
iii) abuse of the concesion granted to the accused in any manner.
Yet another ground could be the probability of the accused absconding. Therefore caution given by the Hon ble apex court in the above case is that bail once granted should not be cancelled in a mechanical manner without examining whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial.
13. What are the factors to be kept in mind while granting bail in a case relating to the commission of a heinous offence have been considered by the Hon ble apex court in the case of PRASANTA KUMAR SARKAR .v. ASHIS CHATERJEE AND ANOTHER ([2010] 14 SCC 496). In paragraph 9 of the said judgment at page 499, the Hon ble apex court has broadly indicated the factors to be borne in mind while considering an application for bail relating to heinous offences. It is extracted below:
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, behavior, 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.
14. In another case reported in [2009] 14 SCC 286 between MASROOR .v. STATE OF U.P. AND ANOTHER, the Hon ble apex court has cautioned the court dealing with bail applications not to examine the evidence placed on record elaborately and not to give detailed reasons touching the merits of the case which may prejudice the accused; but there is a need to indicate in such order the reasons for prima facie concluding why bail is granted when he is charged of having committed a serious offence. The relevant observation of the Hon ble apex court is reproduced below:
12. Normally this court does not interfere with the order of the High Court relating to grant or rejection of bail but in the instant case, having carefully gone through the impugned order, we are constrained to observe that the High Court has completely ignored the basic principles which are to be kept in view while dealing with an application filed under Section 439 of the Code for grant of bail to the second respondent, warranting interference by this court.
15. In the present case, the reasons assigned by the learned sessions judge to grant bail are forthcoming in paragraph 10 which is extracted above. After going through the reasoning in paragraph 10 of the impugned order, this court is of the opinion that the learned judge should not have made such observation stating as to whether the accused has committed the alleged offence needs to be found out only through an elaborate trial and that no purpose would be served if he is detained in judicial custody after filing of charge sheet.
Suffice to state that in the present case, no sufficient or cogent reasons are assigned in paragraph 10 of the impugned order to grant bail in a heinous offence of this nature. But the accused has been enjoying the benefit of bail since 16.12.2014 and one year and two months had already elapsed since the date of grant of bail. As rightly pointed out by the Hon ble apex court in the case of DOLAT RAM (supra), no supervening circumstances are made out to render it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial.
16. It is not the case of the prosecution that the accused has violated any of the bail conditions. Nothing is placed on record to indicate that he has held out threats to prosecution witnesses or is interfering in any manner and there is a likelihood of trial being influenced in one manner or the other. The three conditions imposed by the learned judge while granting bail are extracted below:
1) Petitioner shall not tamper with the prosecution witnesses;
2) Petitioner shall appear before the court on all the dates of hearing without fail;
3) Petitioner shall not leave the jurisdiction of the court without prior permission.
Thus in the light of the gravity of the offence, an offence committed by a man aged 50 years on a girl aged 20 years and the discretion being exercised in the sessions judge under Section 439, Cr.P.C., in favour of the accused, more stringent conditions should have been imposed so that the trial would go on without hindrance in any manner, and the witnesses would be able to depose before court without any threat or apprehension.
17. The decision of the Hon ble apex court in the case of DHOLAT RAM (supra) has been followed by the Hon ble apex court in the case of SUBHENDU MISHRA .v. SUBRAT KUMAR MISHRA AND ANOTHER (AIR 1999 SC 3026) by a Bench consisting of three Judges and another Bench of three Judges in the case of SAMARENDRA NATH BHATTACHARJEE .v. STATE OF WEST BENGAL AND ANOTHER (AIR 2004 SC 4207).
18. As per the facts in the case of DHOLAT RAM, the additional sessions judge of Rohtak had granted anticipatory bail to the husband and brothers of the deceased (Sunitha) and directed that they be released by furnishing bond of Rs.1,000/- each with one surety for the like sum to the satisfaction of the arresting IO. Of course bail had not been granted to the husband of the deceased. The offence so alleged was in respect of dowry death of Sunitha. The High Court of Punjab and Haryana, on an application filed by the prosecution, cancelled bail essentially on the ground that no prima facie case had been made out to justify grant of anticipatory bail. While granting bail, the learned sessions judge of Rohtak had observed as follows:
It appears that possibly these accused have been roped in falsely.
This observation, it appears, was the main reason for the High Court to cancel bail. The accused had moved the Hon ble apex court about the cancellation of bail and therefore the apex court held that very cogent and overwhelming circumstances are necessary for directing the cancellation of bail already granted.
19. As rightly pointed out by the learned HCGP, the sessions judge should have taken into consideration the gravity of the offence of rape alleged against a man aged 50 years and the punishment contemplated therefor. It is true that the reasons assigned by the learned sessions judge are not so convincing.
20. But still the respondent-accused has been enjoying bail from December 2014 and the application for cancellation of bail was moved in June 2015. Learned HCGP has submitted that the case is already posted for framing charges and the next date of hearing is 22.3.2016. It is further submitted that the case was committed to the sessions court on 19.1.2015. In the light of no supervening circumstances forthcoming in the present case, it would not be prudent to cancel bail at this stage. If the State intends to move for cancellation of bail, normally it should be done at the earliest.
21. On the other hand, it would be better to give appropriate directions to the concerned court before which the matter is pending, relating to the disposal of the case expeditiously. It need not be reiterated that where a clear prima facie case is forthcoming in regard to the offence of rape, instead of releasing the accused on bail, it would be better to take up the case for trial at the earliest. For the reasons stated above, this is not a fit case to cancel bail at this stage.
22. Accordingly, following order is passed:
ORDER
I) The petition filed under Section 439(2), Cr.P.C. is dismissed.
II) Notwithstanding dismissal of the petition, the respondent-accused shall attend the jurisdictional police station once a week on every Sunday between 9.00 a.m. and 5.00 p.m. till disposal of the case. The court of III Additional sessions judge to which the case is committed, shall frame charges on 22.3.2016 without fail and hold trial at the earliest, preferably within three months from 22.3.2016.
III) The accused shall not involve himself in criminal activity. It need not be reiterated that when once the trial starts, it should normally be on a day-to-day basis as per the mandate of Section 309, Cr.P.C.
Office is directed to send a copy of this order to the III Additional Sessions Judge, Hassan, for reference and compliance, without undue delay.