TaxTMI 
TaxTMI 
TaxTMI 
2023 (8) TMI 1662
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.... No.219 of 2023 whereby the applications filed by the first Respondent in the respective appeals under Section 439 of the Code of Criminal Procedure, 1873 (for short 'the Cr.P.C.') has been allowed and have been granted bail on furnishing a personal bond for a sum of Rs.1,00,000/- (Rupees one lakh only) with two sureties of Rs.50,000/- each for their presence in connection with the FIR No.94 of 2022 registered on the complaint of the appellant by Police Station Mandawar, District Dausa, Rajasthan for the offences punishable under Section 376D, 384, 506 of the Indian Penal Code (for short 'the IPC'), Section 326 of POCSO Act and Section 3(2)(v) of The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short SC/ST Act) and Section 66 of the Information Technology Act, 2000. Brief Background: 3. The appellant (original complainant) is the uncle of minor girl got registered an FIR No.94 of 2022 on 25.03.2022 with the jurisdictional police alleging gang rape, threat of making video of rape recorded viral and extortion which came to be registered for the offences punishable under Section 376D, 384 and 506 of the IPC read with Section 326 of POCSO Act and S....
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....ffence punishable under Section 376(2)(n), 376DA of the IPC and Section 516 of POCSO Act and thereafter the case has been registered and accused has been summoned. It is also pertinent to note at this juncture that order taking cognizance by the jurisdictional court against Deepak was challenged before the High Court which came to be dismissed and same was challenged before this Court and later withdraw the petition. 6. The applications for grant of bail filed by the respondents in the respective appeals came to be dismissed by the special court vide order dated 27.06.2022 and 11.01.2023 by the High Court. In the background of the bail application having been rejected the first respondent in the respective appeals have preferred Criminal Miscellaneous Bail Applications under Section 439 of the Cr.P.C. before the High Court of Judicature of Rajasthan. By impugned order dated 06.04.2023 the High Court granted the relief in their favour and enlarged them on bail after taking into consideration the statement of the prosecutrix (victim) recorded during the course of trial and by taking into consideration the possibility of time being consumed for trial. The complainant being aggrieved ....
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....ined during investigation revealed he was found to be 40 to 80 KM away from the place of incident on the date of incident and prima facie it reveals he has been falsely implicated; the first respondent (Deepak) had no connection with or relationship with the prosecutrix and no call was ever made by him to the prosecutrix or vice versa. It is also contended that accused Vivek was known to the prosecutrix as is evident from various calls made by Vivek to her and during the course of the trial in her deposition she admitted that she was getting calls from Vivek and Netram but there was no connection whatsoever between the prosecutrix and respondent No.1 - Deepak. She would also contend that between the date of incident i.e. 24.02.2021 and the date of registration of FIR No.94 of 2022 on 25.03.2022 there was yet another FIR No.142 of 2021 registered by the mother of the victim regarding theft of jewellery against Vivek and there was no whisper of rape against respondent (Deepak) or others and the investigating officer is said to have recovered the jewellery from the accused Vivek. This chain of events would indicate that first respondent - Deepak had no remote connection to the alleged....
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....matter of grant of bail. (c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought to be always a prima facie satisfaction of the Court in support of the charge. (d) Frivility of 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 have an order of bail. We may also profitably refer to a decision of this Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and another (2004) 7 SCC 528 where the parameters to be taken into consideration for grant of bail by the Courts has been explained in the following words: "11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indic....
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....tions, where a Superior Court can interfere in an order of bail to prevent the miscarriage of justice and to bolster the administration of criminal justice system. 16. No doubt each case would have unique facts peculiar to its own and the same would hold key for adjudication of bail matters including cancellation thereof. There may be circumstances where interference to or attempt to interfere with the course of administration of justice or evasion or attempt to evade to due course of justice are abuse of concession granted to the accused in any manner. 17. 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 यत्र नार्यस्तु पूज्यन्ते रमन्ते तत्र देवता: (where women are respected Gods live there) would recede to the background and the guilty not being punished by process of law or accused persons are allowed to move around freely in the society or in spite of there being prima fac....
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....ever, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail." 20. Keeping the aforesaid analysis of law when we turn our attention to the facts on hand it would not detain us too long to arrive at a conclusion that High Court seems to have been primarily swayed by the fact that there has been delay in filing the complaint i.e. 13 months fo....
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.... delay. It all depends upon facts that may unfold in given circumstances and same would vary from case to case. On the other hand, if the prosecution attempts to improvise its case stage by stage and step by step during the interregnum period, in such circumstances accused would be justified in contending that delay was fatal to stave off the proceedings initiated against such accused. Thus, it depends on facts that would unfold in a given case. In the aforesaid background the fact of delay in the instant case prima facie cannot be held against the prosecution or in other words on the ground of delay in lodging FIR the genuineness of the complaint cannot be viewed with colored glasses nor it can be held that by itself would be sufficient ground to enlarge the accused on bail. 22. The accused in the instant case, namely, Deepak was apprehended by the jurisdictional Sessions Court by executing the arrest warrant on 09.01.2023. He did not initially surrender after being charge-sheeted or participate in the investigation even after arrest warrant being issued by the trial court. 23. The fact that accused Deepak is the son of sitting MLA would disclose the domineering influence he wou....