Delhi High Court
Rashmita vs State & Ors. on 22 May, 2012
Author: M. L. Mehta
* THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL. M.C. NO. 3084/2011
Date of Decision: .22.05.2012
RASHMITA ...... Petitioner
Through: Mr. Pradeep Kumar Arya, Mr.
Narinder Chaudhary, Mr. Ashish
Sharma, Shobhit Mittal and Mr.
Rana Kunal, Advocates.
Versus
STATE & ORS. ...... Respondents
Through: Ms. Fizani Husain, APP for state.
Mr. Medhanshu Tripathi with
Mr. Harsh Sharma, Advocate for R-2.
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J. (Oral)
1. This is a petition under Section 482 Cr.P.C. read with Section 439(2)
Cr.P.C for cancellation of bail granted to respondent no.2 by ld. ASJ
vide his order dated 27.08.2011 in FIR No. 322/2011 registered at P.S.
Mongol Puri under Section 376 IPC.
2. The above mentioned FIR was registered at the instance of the petitioner
who was working as a full time maid in the house of respondent no.2. It
has been alleged that on 03.08.2011 at about 8.45 p.m., the petitioner was
dragged by respondent no.2 into his bedroom and forcibly raped. It has
been stated by the petitioner that at the relevant time, the wife of
respondent no.2 was not present at home. The information about the
alleged incident was given to the police on the next day and the statement
of the petitioner was recorded and the cloth worn by her at the time of the
incident were seized by the police. The medical examination of the
petitioner was conducted vide MLC No. 10741. In the statement given by
the petitioner to the Magistrate under Section 164 Cr.P.C., the contents of
the FIR were reiterated. The respondent no.2 was taken into police
custody and after consideration of the facts of the case; the ld. ASJ
enlarged the respondent no. 2 on bail .Hence, the present petition.
3. The order of grant of bail to the respondent no.2 has been assailed by the
learned counsel for the petitioner on the ground that it is illegal as the ld.
ASJ has failed to take into consideration the nature of the offence as well
as the MLC report of the petitioner vide which the factum of rape
committed upon the petitioner stood confirmed. It has been further urged
by the learned counsel for the petitioner that the ld. ASJ has not
considered the possibility that respondent no.2 could interfere in the
administration of justice by tampering the evidence of the prosecution and
hence the order of granting bail to the respondent no.2 may be set aside.
4. Per contra, the learned counsel for respondent no.2 has submitted that
the order of grant of bail was passed by the ld.ASJ after due consideration
of the entire facts and circumstances of the case and confirms to the
principles governing grant of bail to the accused. It has been further
submitted by the learned counsel that the considerations for cancellation
of bail are different than those for grant of bail and unless it is proved that
the accused person enlarged on bail has flouted the conditions imposed on
him at the time of grant of bail, the Court should desist from cancellation
of bail granted to the accused. It has been also submitted that there are
five cases pending between the respondent no.2 and his wife and that he
has been falsely implicated by the petitioner on the instigation of his wife
who had herself called the police and intimated them about the alleged
incident. It has also been submitted that the petitioner is still residing in
the house of respondent no.2 and there is no allegation that he ever tried
to influence or coax her.
5. I have heard the rival submissions and perused the file.
6. The plea of the learned counsel for the petitioner that the impugned
order is illegal as the ld. ASJ has not considered the MLC report of the
petitioner, is untenable as the evidence regarding the offence allegedly
committed by the accused person is not the touchstone for deciding the
question of cancellation of bail. Moreover, this plea was not raised by the
learned counsel before the trial Court when the application for grant of
bail was moved by respondent no.2 and this Court ought not to dwell into
the issues of fact while disposing of a petition for cancellation of bail.
7. It is a settled legal position that the Courts are not supposed to explore
the merits of the case in detail or to weigh the evidence in golden scales
while considering the question of cancellation of bail. In Nityanand Rai
Vs. State of Bihar & Anr.(2005)4 SCC 178, it has been thus observed by
the Apex Court ,
"Consideration of an application for grant of bail
stands on a different footing than one for
cancellation of bail. Grounds for cancellation of
bail should be those which arose after the grant of
bail and should be referable to the conduct of the
accused while on bail, such is not the case made
out in application for cancellation of bail."
8. The same position has been reiterated by the Apex Court in Dolat
Ram & Ors. Vs. State of Haryana(1995)1 SCC349 in the following
words:
"4. Rejection of bail in a non-bailable case at the
initial stage and the cancellation of bail so granted,
have to be considered and dealt with on different
basis. Very cogent and overwhelming
circumstances are necessary for an order directing
the cancellation of the bail, already granted.
Generally speaking, the grounds for cancellation of
bail, broadly (illustrative and not exhaustive) are:
interference or attempt to interfere with the due
course of administration of justice or evasion or
attempt to evade the due course of justice or abuse
of the concession granted to the accused in any
manner. The satisfaction of the court, on the basis
of material placed on the record of the possibility
of the accused absconding is yet another reason
justifying the cancellation of bail. However, bail
once granted should not be cancelled in a
mechanical manner without considering 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."
9. Applying the dictum of the above mentioned pronouncements to
the present factual matrix of the case, it is noticed that the
accused/respondent no.2 was enlarged on bail on 27.08.2011 and
since then there is nothing brought on record by the petitioner to
show that he has misused the liberty accorded to him. Except the
bald statement of the petitioner that he may tamper with the
evidence, there is no cogent proof of any obstruction of the process
of law by the respondent no.2 which would create any valid
ground for upsetting the order of granting bail by the ld.ASJ.
10.No doubt, the offence with which respondent no.2 is charged is
heinous in nature, but every accused person is presumed innocent
until proven guilty beyond reasonable doubt and every accused
person has the right to enjoy the bail granted to him unless there is
evidence to show the abuse of this right given to him . It is re-
emphasized by this Court that at the time of dealing with the
question of cancellation of bail of an accused, the only issue which
is germane is that whether the accused has misused the conditions
of bail or tampered with the investigation or the evidence or not.
But in the present case no such incriminating evidence has been
brought forward by the petitioner which would create an adverse
opinion in the mind of this Court regarding the conduct of
respondent no.2 post grant of bail. The status quo of the case is
maintained even after the respondent no.2 being out on bail.
11.In light of the above discussion and absence of any material from
which any inference may possibly be drawn that the respondent
no.2 has in any manner, whatsoever, abused the concession of bail
during the intervening period, I am of the opinion that it is not a
case which would warrant the cancellation of bail granted to the
accused
12.Consequently, the petition is hereby dismissed.
13.Copy of this order may be circulated to the officers of Subordinate
Judiciary.
M.L. MEHTA, J.
MAY 22, 2012
ss
