The Orissa High Court recently comprising of a bench of Justice S. K. Panigrah while rejecting the bail application of a Rape accused remarked that Rape is just not forcible intercourse, it means to inhabit and destroy everything. (Gobinda Chandra Mallik v. the State of Odisha and anr)
The bench noted, "The applicant is seeking release on bail awaiting the trial. Considering the gravity of the accusation levelled against him and the testimony of the victim, which would beunfurled at the time of trial and in view of the aforesaid position emerging from the submission of the learned counsel for the applicant based on the material on record, I am not inclined to release the applicant on bail. The observations made in the order are prima facie in nature, based on the material placed for consideration for a limited purpose of consideration of bail application and should not be considered as an expression/opinion on the merits of the matter at the time of trial.”
Facts of the case
In the present case of the prosecution, the facts follow as that, the petitioner caught hold of the hand of the victim (aged about 11 years) while the latter was attending the call of nature. The petitioner dragged her to an under-construction house where he inappropriately touched the private parts of the victim. The cousin of the victim witnessed the whole incident and she was threatened by the petitioner of committing similar misconduct with her if she raises a protest. Thereafter the matter was reported to the local Sarpanch and on the advice of the said Sarpanch, the FIR was lodged by the mother of the victim.
Contention of the parties
The Learned Senior Counsel for the petitioner, has submitted that the petitioner is an innocent person and has been falsely implicated in this case by the Police. The petitioner has never committed the alleged offences and has no role to play in it. Learned Court below has rejected the bail application of the petitioner without taking into consideration the materials available on record and without applying its judicial mind. Further, the medical examination has been conducted on the victim and the said report reflects no sign of forceful sexual misconduct and the wearing apparel does not suggest any sign of forceful sexual act. Hence, the petitioner should be granted bail.
Courts observation and judgement
In the instant case, from a perusal of the FIR, it appears that offences under the Indian Penal Code, are definitely made out, though it needs to be further investigated as the investigation is still inconclusive. A perusal of the FIR and charge sheet filed in the present case shows that there are very specific allegations against the Petitioner who is arrayed as accused. It is not, as if, the allegations are casual and sweeping against the accused generally. The possibility of coercion of the victim’s family, repetition of a similar type of offence and fleeing from justice cannot be ruled out and therefore, the petitioner should not be granted bail at least until the investigation is complete.
The court stated, “There are numerous other allegations as well in the charge sheet which are very detailed and need not be reproduced since the above extracts are sufficient to indicate that the allegations are specific and not of a general nature. Upon a reading of the FIR and the charge sheet as a whole, it is not possible to come to the conclusion that they do not make out even a prima facie case against the Petitioner for the offences in question. Moreover, the length of detention of the petitioner is not a ground for release him on bail in this kind of offence which shakes the social conscience. Therefore, I am not inclined to enlarge the petitioner on bail.”
The court taking note of the above stated, “In view of the above, this Bail Application is accordingly dismissed. However, the petitioner will be at liberty to raise all the points, already raised in this petition, at the time of framing of the charge, which will be considered by the trial court concerned by passing a reasoned order. It is further made clear that any of the observations made in this judgment shall not come in the way of a fair trial of the case, nor shall the trial Court be influenced by these observations.”
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