Lekh Raj Gawari vs The State (Nct Of Delhi) And Anr.
2005 Latest Caselaw 486 Del

JUDGMENT

Badar Durrez Ahmed, J.

1. This is an application under Section 439 of the Code of Criminal Procedure, 1973 for cancellation of bail granted by the learned Additional Sessions Judge on 20th November, 2004. The learned counsel for the applicant submitted that the order passed on this application for bail was passed without any notice to the applicant or to the State. In fact, he drew my attention to the bail application which is filed at page 25 of the paper book to indicate that the fact that the previous rejection of bail by an order on merits was not at all mentioned in the said application. The learned counsel for the petitioner submits that in paragraph 4 of the application, the accused had mentioned the orders by which the petitioner had been granted interim bail for one reason or the other. However, he had not mentioned the fact that by the order dated 29.3.2004, the learned Sessions Judge had, while declining regular bail, granted interim bail for a period of one month. This fact of rejection of regular bail was not mentioned in the application at all. He further submitted that on the application itself, an order was passed to the following effect:-

"Put up on date fixed as prosecutrix has got to be examined."

The next date of hearing in the matter was 20th November, 2004. On 20th November, 2004 the case came up for hearing before the learned Additional Sessions Judge and he passed the following order in the main matter:-

"20.11.2004

Present: APP for the State.

Accused present in J/C

PW2 & PW3 further cross-examined and discharged. No other PW is present. To come up for further PW on 20.1.2005.

PWs at Serial No. 10,12,13,14, 15,16,17 and 20 along with IO be summoned for that date. IO to effect the service on the witness.

Sd/- ASJ/20.11.2004"

The learned counsel for the petitioner submits that the order granting bail which is also dated 20th November, 2004 was taken up at some other point of time without notice to the counsel for the State. Furthermore, he submitted on merits that this is a very serious and harsh case wherein a minor is said to have been kidnapped and raped.

2. The case of the prosecution was that the prosecutrix Pooja was taken away from her school (Cambridge Foundation School at Rajouri Garden, New Delhi) on 3rd September, 2002 by the respondent No.2 (Harish Mahajan). She was administered something which she smelt and became unconscious and when she regained consciousness she found herself in Haldwani. The father of the prosecutrix filed a missing persons report with police station Janakpuri on 3rd September, 2002 itself. Ultimately, the prosecutrix was apprehended in the company of said Harish Mahajan at Nainital on 15th September, 2002. Therefore, according to the learned counsel for the petitioner there is no doubt that the prosecutrix was in the company of the accused Harish Mahajan at Nainital. This, coupled with the fact that the prosecutrix is a minor, is a very strong circumstance to show that the petitioner is guilty of the offences for which the FIR has been registered.

3. The learned counsel for the State also submitted that in the wake of the finding that the prosecutrix is a minor, the question of consent becomes immaterial and that is the only ground apparent on which the learned Sessions Court had granted bail to the accused.

4. The learned counsel for the accused submitted that the prosecutrix as well as her father have been examined and there appear to be some contradictions in their statements and that the accused is innocent.

5. It is well settled that the consideration for grant of bail and for cancellation of bail stand on different footings. Once bail is granted, the order should not be lightly interfered with and it can be interfered with only in circumstances which indicate, inter alia, some perversity in the order whereby bail has been granted. For this purpose, it would be necessary to examine the order dated 20th November, 2004 whereby the accused Harish Mahajan was granted bail. The order is reproduced in its entirety.

" By this order, I shall dispose of application moved on behalf of the accused. Lt. Counsel has argued that the accused is young in age and has a bright career ahead of him and is in J/C since 16.9.2002 and because of being in J/C he is out of Government job. He has further argued that prosecutrix and her father have been examined and as such there is no apprehension of the accused overawing the witnesses. He also stated that accused is a law abiding citizen and there is no chance of his fleeing from justice.

He has also argued that from the statement of the witnesses, a doubt is created on the birth certificate of Pooja relied upon by the prosecution as the same bear cuttings and it has come during evidence that Pooja had accompanied the accused to various places to out of Delhi and stayed at hotels and none of the places she had approached the hotel authorities or other public persons for lodging the complaint against the accused.

Keeping in view the facts & circumstances of the case, accused is admitted to bail subject to furnishing bail bond in the sum of Rs. 25,000/- with one surety in the like amount.

DT 20.11.04 Sd/- N.K. GUPTA

ASJ/Delhi."

6. From a reading of the first paragraph, it can be seen that the submission that was made was that the prosecutrix and her father have been examined and that there was no apprehension of the accused overawing the witnesses. It was also stated that the accused was a law abiding citizen and there is no chance of his fleeing from justice. The second paragraph of the order indicates that from the statement of the witnesses a doubt was created with regard to the birth certificate of the prosecutrix. What is more, it was further argued that Pooja had accompanied the accused to various places out of Delhi and stayed at hotels and that at none of these places had she complained to the authorities. The order clearly indicates that only the submissions and arguments of the learned counsel for the accused were taken note of. It, therefore, corroborates the submissions made by the learned counsel for the applicant herein that the counsel for the State was not heard at all. Apart from this fact, it is clear that there is birth certificate giving date of birth of the prosecutrix as 2nd of January, 1987. There is also the School Certificate of the concerned school where the prosecutrix was a student of class tenth which gives the same date of birth. This certificate has been issued by the principal of the said school. Furthermore, according to the learned counsel for the applicant (and the same is confirmed by the learned counsel for the State) there is a medical report of the prosecutrix which indicates that she was more than 14 years of age but less than 16 years of age. This clearly shows that the prosecutrix was around 15 years of age. Therefore, not much reliance can be placed on what is recorded in the second paragraph of the order whereby bail was granted. Furthermore, once the prosecutrix is shown to be of less than sixteen years of age, her consent becomes immaterial and that is a circumstance which should have not at all been considered by the learned Additional Sessions Judge while granting bail.

7. In view of the aforesaid circumstances and the serious nature of the offence as well as the fact that that prosecutrix was below sixteen years of age, it becomes clear that great care was necessary for disposing of the bail application of the accused. The degree of care as would provide judicial comfort is sadly lacking. To top it, in a grave case such as this, I find that even the learned counsel for the State was not heard while disposing of the said application for bail.

8. In this view of the matter, this is a fit case in which interference is called for and the bail granted by the order dated 20th November, 2004 is hereby cancelled.    The accused shall surrender forthwith.
 

 The application stands disposed of.