Cr.M.P. (M) No.1105 of 2015

3rd August, 2015.

Petitioner Counsel: Mr. N.S. CHANDEL
Respondent Counsel: Mr. V.K. VERMA, Ms. MEENAKSHI SHARMA

Cases Cited:
Ash Mohammad Vs. Shiv Raj Singh, 2012 ALL MR (Cri) 3756 (S.C.)=(2012) 9 SCC 446 [Para 5,13]
Ram Govind Upadhyay Vs. Sudarshan Singh & Ors., 2002 ALL MR (Cri) 2460 (S.C.)=(2002) 3 SCC 598 [Para 7]

JUDGMENT

JUDGMENT :- The petitioner has approached this Court for grant of regular bail in case Fir No. 88 of 2015 registered at Police Station Barmana, District Bilaspur, H.P. on 28.5.2015 under Sections 366, 376d, 506 and 201 of the Indian Penal Code.

The respondent has produced the records of the investigation and has also filed status report.

2. What emerges from the records of the investigation is that the prosecutrix lodged the aforesaid FIR alleging therein that she is married and having two children and due to strained relations with her husband, she is residing at her parents' house at Village Salnoo. She is employed as a peon in Adarsh Private School, Dehar. She used to depart at 7.30 A.M. to the school and returned back home at 3.00 P.M. The accused Manoj Kumar came in contact with the prosecutrix on her mobile phone and he started asking her to meet him but she avoided. On 26.5.2015, he again asked her to meet but she refused. As about 3.00 P.M., when the prosecutrix was going to Salnoo, a truck bearing No. HP-31B-0715 was found parked on the road side. The co-accused Ashish Kumar alias Chottu and Mahander Kumar were standing outside, whereas co-accused Manoj Kumar was inside the vehicle. Both Mahander Kumar and Ashish Kumar forcibly took the prosecutrix in the vehicle, where all the three persons raped her turn by turn. She became unconscious and on regaining conscious, she was threatened not to disclose the matter. She was taken to Barmana, where these accused called one of their other friend, who later on was stated to be the petitioner, who too committed rape upon her. In the morning on 27.6.2015, the prosecutrix was left at Dehar Chowk and then she contacted her brother in Gurgaon and when he came the matter was reported to the police on 28.5.2015.

I have heard the learned counsel for the parties and have also gone through the records of the case.

3. It is well settled that the matters to be considered in an application for bail are:-

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

(ii) nature and gravity of the charge;

(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 tampered with; and

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

4. It is also more then settled that if a person was suspected of a crime of an offence punishable with death or imprisonment for life, then there must explaining grounds which specifically negate the existence of reasonable grounds for believing that such an accused is guilty of an offence punishable with sentence of death or imprisonment for life. The jurisdiction to grant bail must, therefore, be exercised on the basis of well settled principles having regard to the circumstances of each case. The discretion to be exercised in such matters must be exercised in a judicious manner and not as a matter of course. It may not be necessary to do detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, but there is a need to indicate reasons for prima facie concluding why bail was being granted, particularly where the accused is charged of having committed a serious offence. The heinous nature of the crime warrants more caution and there is a greater chance of rejection of bail, though, however dependent on the factual matrix of the matter.

5. In Ash Mohammad Vs. Shiv Raj Singh, (2012) 9 SCC 446 : [2012 ALL MR (Cri) 3756 (S.C.)], the legal position was summed up in the following manner:-

"7. The centripodal issue that emerges for consideration is: whether the order passed by the High Court is legitimately acceptable and legally sustainable within the ambit and sweep of the principles laid down by this Court for grant of regular bail under Section 439 of the Code?

8. In Ram Govind Upadhyay V. Sudarshan Singh (2002) 3 SCC 598, it has been opined that the grant of bail though involves exercise of discretionary power of the Court, such exercise of discretion has to be made in a judicious manner and not as a matter of course. The heinous nature of the crime warrants more caution and there is greater chance of rejection of bail, though, however dependent on the factual matrix of the matter. IN the said case the learned Judges referred to the decision in Prahlad Singh Bhati V. NCT, Delhi (2001) 4 SCC 280 and stated as follows: (Ram Govind case (2002) 3 SCC 598, SCC p. 602, para 4)

"(a) While granting bail the court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.

(b) Resonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail.

(c) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prma facie satisfaction of the court in support of the charge.

(d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."

9. In Chaman Lal V. State of U.P. (2004) 7 SCC 525 this court while dealing with an application for bail has stated that certain factors are to be considered for grant of bail, they are: (SCC p. 525)

"...(i) the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, (ii) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant, and (iii) prima facie satisfaction of the court in support of the charge."

10. In Mansroor v. State of U.P. (2009) 14 SCC 286, while giving emphasis to ascribing reasons for granting of bail, however, brief it may be, a two-Judge Bench observed that: (SCC p. 290, para 15)

"15. There is no denying the fact that the liberty of an individual is precious and is to be zealously protected by the courts. Nonetheless, such a protection cannot be absolute in every situation. The valuable right of liberty of an individual and the interest of the society in general has to be balanced. Liberty of a person accused of an offence would depend upon the exigencies of the case."

Bearing in mind the well settled principles of law, I proceed to deal with the merits of the bail application.

6. Learned counsel for the petitioner has strenuously argued that the petitioner belongs to a respectable family and is innocent and has been falsely implicated in the case. It is further contended that since the investigation of the case is over and nothing incriminating is required to be recovered, therefore, he ought to be ordered to be released on bail. It is also claimed that he is the sole bread earner in the family and therefore, his detention would not in any manner advantage the cause of justice.

7. The grounds now canvassed before me are virtually the same which had been canvassed before the Learned Sessions Judge. It is not that the accused do not have a right to make successive bail applications, but then the Court entertaining such subsequent applications has a duty to consider the reasons and grounds on which the earlier bail applications were rejected. In such case, the Court also has a duty to record what are the sufficient grounds which persuade it to take a different view from the one taken in the earlier application. This was so held by the Hon'ble Supreme Court in Ram Govind Upadhyay Vs. Sudarshan Singh and others, (2002) 3 SCC 598 : [2002 ALL MR (Cri) 2460 (S.C.)]:-

"9. Undoubtedly, considerations applicable to the grant of bail and considerations for cancellation of such an order of bail are independent and do not overlap each other, but in the event of non-consideration of considerations relevant for the purpose of grant of bail and in the event an earlier order of rejection available on the records, it is a duty incumbent on to the High Court to explicitly state the reasons as to why the sudden departure in the order of grant as against the rejection just about a month ago. The subsequent FIR is on record and incorporated therein are the charges under Sections 323 and 504 IPC in which the charge-sheet have already been issued -- the Court ought to take note of the facts on record rather than ignoring it. In any event, the discretion to be used shall always have to be strictly in accordance with law and not dehors the same. The High Court thought it fit not to record any reason, far less any cogent reason, as to why there should be a departure when in fact such a petition was dismissed earlier not very long ago. The consideration of the period of one year spent in jail cannot in our view be a relevant consideration in the matter of grant of bail, more so by reason of the fact that the offence charged is that of murder under Section 302 IPC having the punishment of death or life imprisonment - it is a heinous crime against the society and as such the court ought to be rather circumspect and cautious in its approach in a matter which stands out to be a social crime of very serious nature."

8. Rape is a more heinous offence than even murder. Murderer destroys the physical body of a victim, while a rapist degrades the very soul of the helpless female. Such an offence transgresses the right of privacy and sanctity of a female. It cannot be lost sight that this leaves traumatic experience behind her which haunts her for her life. The rape victim develops a fractured personality and leaves physiological and physical harm in that process. Therefore, the entire controversy is to be looked into from that angle.

9. It has come on record that the prosecutrix was living with her mother due to strained relations with her husband and that probably was a reason which made her vulnerable and an easy target. Not only this, it has come in the records of the investigation that upon the physiological report conducted on the prosecutrix, she was found to be indicative of border line mental retardation followed by 25% intellectual impairment. If that be so, it made the prosecutrix although more vulnerable and a soft target.

10. The learned Sessions Judge has given cogent and convincing reasons for discarding the plea of the petitioner with respect to non holding of identification parade, as also the plea regarding the prosecutrix being reluctant for medical examination and I see no reason to disagree with the same.

11. It is more then settled that at this stage the examination of the evidence is to be avoided, lest it amounts to prejudging and prejudicing either of the parties. However, a prima facie examination of the record does disclose the commission of offence and the involvement of the petitioners in the commission of the same. In so far as the absence of some of the accused at the time of commission of offence or scene of occurrence is concerned, they admittedly are not the bail petitioners and therefore, no finding on this aspect is being recorded lest it prejudices the case of those accused or the investigating agency.

12. The learned counsel for the petitioners would then contend that the Hon'ble Supreme Court has time and again held that the personal liberty of an individual is a Constitutional guarantee and he cannot be deprived of the same. What has probably been overlooked by the learned counsel is the fact that lawful detention cannot be questioned as being violative of Article 21 of the Constitution, since the same is authorized by law.

13. The question of "liberty" has come up for consideration repeatedly before the Hon'ble Supreme Court and the position has been summed up by the Hon'ble Supreme Court in Ash Mohammad's case, [2012 ALL MR (Cri) 3756 (S.C.)] (supra), wherein it was held:-

"17. We are absolutely conscious that liberty of a person should not be lightly dealt with, for deprivation of liberty of a person has immense impact on the mind of a person. Incarceration creates a concavity in the personality of an individual. Sometimes it causes a sense of vacuum. Needless to emphasize, the sacrosanctity of liberty is paramount in a civilized society. However, in a democratic body polity which is wedded to Rule of Law an individual is expected to grow within the social restrictions sanctioned by law. The individual liberty is restricted by larger social interest and its deprivation must have due sanction of law. In an orderly society an individual is expected to live with dignity having respect for law and also giving due respect to others' rights. It is a well accepted principle that the concept of liberty is not in the realm of absolutism but is a restricted one. The cry of the collective for justice, its desire for peace and harmony and its necessity for security cannot be allowed to be trivialized. The life of an individual living in a society governed by Rule of Law has to be regulated and such regulations which are the source in law subserve the social balance and function as a significant instrument for protection of human rights and security of the collective. It is because fundamentally laws are made for their obedience so that every member of the society lives peacefully in a society to achieve his individual as well as social interest. That is why Edmond Burke while discussing about liberty opined, "it is regulated freedom".

18. It is also to be kept in mind that individual liberty cannot be accentuated to such an extent or elevated to such a high pedestal which would bring in anarchy or disorder in the society. The prospect of greater justice requires that law and order should prevail in a civilized milieu. True it is, there can be no arithmetical formula for fixing the parameters in precise exactitude but the adjudication should express not only application of mind but also exercise of jurisdiction on accepted and established norms. Law and order in a society protect the established precepts and see to it that contagious crimes do not become epidemic. In an organized society the concept of liberty basically requires citizens to be responsible and not to disturb the tranquility and safety which every well-meaning person desires. Not for nothing J. Oerter stated:

"Personal liberty is the right to act without interference within the limits of the law."

19. Thus analyzed, it is clear that though liberty is a greatly cherished value in the life of an individual, it is a controlled and restricted one and no element in the society can act in a manner by consequence of which the life or liberty of others is jeopardized, for the rational collective does not countenance an anti-social or anti-collective act.

20. Having said about the sanctity of liberty and the restrictions imposed by law and the necessity of collective security, we may proceed to state as to what is the connotative concept of bail. In Halsbury's Laws of England 4th Edn., Vol. 11, para 166 it has been stated thus: -

"166. Effect of bail.-The effect of granting bail is not to set the defendant [(accused) at liberty], but to release him from the custody of law and to entrust him to the custody of his sureties who are bound to produce him to appear at his trial at a specified time and place. The sureties may seize their principal at any time and may discharge themselves by handing him over to the custody of law and he will then be imprisoned....."

21. In Sunil Fulchand Shah v. Union of India and others (2000) 3 SCC 409 Dr. A.S. Anand, learned Chief Justice, in his concurring opinion, observed: (SCC pp. 429-30, para 24)

"24.....Bail is well understood in criminal jurisprudence and Chapter 33 of the Code of Criminal Procedure contains elaborate provisions relating to grant of bail. Bail is granted to a person who has been arrested in a non-bailable offence or has been convicted of an offence after trial. The effect of granting bail is to release the accused from internment though the court would still retain constructive control over him through the sureties. In case the accused is released on his own bond such constructive control could still be exercised through the conditions of the bond secured from him. The literal meaning of the word 'bail' is surety."

22. As grant of bail as a legal phenomenon arises when a crime is committed it is profitable to refer to certain authorities as to how this Court has understood the concept of crime in the context of society. In P.S.R. Sadhanantham v. Arunachalam, (1980) 3 SCC 141, R.S. Pathak, J. (as His Lordship then was), speaking for himself and A.D. Kaushal, J., referred to Mogul SS Co. Ltd. v. McGregor Gow & Co. (1989) 23 QBD 598, and the definition given by Blackstone and opined thus: (SCC p. 150, para 24)

"24.....A crime, therefore, is an act deemed by law to be harmful to society in general, even though its immediate victim is an individual."

23. In Mrs. Harpreet Kaur Harvinder Singh Bedi v. State of Maharashtra (1992) 2 SCC 177 a two-Judge Bench, though in a different context, has observed: (SCC p. 186, para 24)

"24. Crime is a revolt against the whole society and an attack on the civilization of the day. Order is the basic need of any organized civilized society and any attempt to disturb that order affects the society and the community."

24. In T.K. Gopal alias Gopi v. State of Karnataka (2000) 6 SCC 168 it has been held that: (SCC p. 176, para 11)

"11....Crime can be defined as an act that subjects the doer to legal punishment. It may also be defined as commission of an act specifically forbidden by law; it may be an offence against morality or social order."

14. The petitioner is accused of serious and heinous offence and his liberty at this stage cannot be placed at a high pedestal and accordingly this petition is dismissed.

Petition dismissed.