Delhi High Court
Salman vs The State Gnct Of Delhi & Anr. on 11 September, 2017
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 11.09.2017
+ BAIL APPLN. 1363/2017
SALMAN ..... Petitioner
Through: Mr.Lekhraj Rehalia, Advocate.
versus
THE STATE GNCT OF DELHI & ANR. ..... Respondents
Through: Mr.Amit Chadha, APP for State
with SI Manisha, PS Hazrat Nizamuddin,
Delhi.
CORAM:
HON'BLE MR. JUSTICE VINOD GOEL
VINOD GOEL, J. (Oral)
1. The petitioner seeks bail under Section 439 of the Code of
Criminal Procedure, 1973 (in short 'Cr.PC') in a case vide FIR
No. 370/2014 under Section 363/376 of Indian Penal Code,
1860 (in short 'IPC') read with Section 4 of the Prevention of
Children from Sexual Offences Act, 2012 (in short 'POCSO
Act'), PS Hazrat Nizammuddin, Delhi.
2. Status report has been filed.
3. Learned counsel for the petitioner submits that the charges were
framed on 01.10.2014 and trial has so far not been concluded
and the case is being adjourned for prosecution evidence and as
such the petitioner be released on regular bail. He refers the
judgment of the Apex Court in Akhtari BI (SMT) Vs. State of
M.P., (2001) 4 SCC 355 and Hussain and Anr. Vs. Union of
India, 2017 (3) SCALE 460 (SC). He submits that the
petitioner cannot be kept in judicial custody as a measure of pre-
trial punishment and relies upon a single Bench judgment of this
court in Anurag Vardhan Vs. Central Bureau of
Investigation, 2003 (3) Crimes 401. He also submits that in her
statement recorded under Section 164 Cr.PC, the victim had
stated that no rape was committed. He submits that the IO had
fabricated the record and filed a false charge sheet. He also
relies upon the judgment of Apex Court reported as Tarun
Tejpal Vs. State of Goa, (2015) 14 SCC 481.
4. The FIR in question was registered on the complaint of father of
the prosecutrix to the effect that on 11.07.2014 his son-in-law
i.e. the petitioner had kidnapped his youngest daughter aged 14
years. The father of the prosecutrix also alleged that the
petitioner had also taken away Rs.60,000/-.
5. Learned APP for State submits that after conclusion of
investigation, the charge-sheet was filed under Section 363/376
of IPC read with Section 4 of POCSO Act. However, the trial
court has framed the charges against the petitioner on
01.10.2014 under Section 363/366 of IPC read with Section 4 of
POCSO Act. Learned APP submits that in the status report
charge under Section 376 of IPC has been wrongly mentioned
and in fact charge under Section 363/366 of IPC read with
Section 4 of POCSO Act had been framed. He submits that the
prosecutrix had testified before the trial court that the petitioner
had committed rape and she was scared of him as the petitioner
had extended threats that in case she discloses the incident to
her parents he would kill her parents. He further submits that
the regular bail application of the petitioner had been dismissed
twice by the learned Sessions Judge. He submits that 05 out of
12 witnesses have so far been examined by the prosecution and
next date of hearing is 6.11.2017 for further prosecution
evidence. He further submits that the offence is of very serious
nature and that the petitioner has committed rape on the
prosecutrix, who is none else but the sister of his wife belonging
to a tender age group i.e. 14 years.
6. The principles for considering the bail under Section 439 of
Cr.PC have been laid down by the Hon'ble Supreme Court in
Prasanta Kumar Sarkar Vs. Ashish Chatterjee and
Another, (2010) 14 SCC 496 and Para 9 and 10 of the judgment
reads as under: -
"9. We are of the opinion that the impugned order is
clearly unsustainable. It is trite that this Court does not,
normally, interfere with an order passed by the High
Court granting or rejecting bail to the accused.
However, 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 of 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, behavior, 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.
10. It is manifest that if the High Court does not advert
to these relevant considerations and mechanically grants
bail, the said order would suffer from the vice of non-
application of mind, rendering it to be illegal. In
Masroor, a Division Bench of this Court, of which one
of us (D.K. Jain, J.) was a member, observed as
follows:-
"13. ...... Though at the stage of granting
bail an elaborate examination of evidence and
detailed reasons touching the merit of the case, which
may prejudice the accused, should be avoided, but
there is a need to indicate in such order reasons for
prima facie concluding why bail was being granted
particularly where the accused is charged of having
committed a serious offence."
7. Further, the Apex Court has laid down the similar principles for
considering the bail application in its another judgment Dipak
Shubhashchandra Mehta Vs. Central Bureau of
Investigation and Another, (2012) 4 SCC 134 and Para 32 of
the judgment reads as under: -
32. 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 merits of the case need not be
undertaken, there is a need to indicate in such orders
reasons for prima facie concluding why bail was being
granted, particularly, where the accused is charged of
having committed a serious offence. The court granting
bail has to consider, among other circumstances, the
factors such as (a) the nature of accusation and severity
of punishment in case of conviction and the nature of
supporting evidence; (b) reasonable apprehension of
tampering with the witness or apprehension of threat to
the complainant; and (c) prima facie satisfaction of the
court in support of the charge. In addition to the same,
the court while considering a petition for grant of bail
in a non-bailable offence, apart from the seriousness
of the offence, likelihood of the accused fleeing from
justice and tampering with the prosecution witnesses,
have to be noted.
8. There is no force in the arguments of the learned counsel for the
petitioner that simply because the trial has not been concluded,
the petitioner should be enlarged on bail. In the judgment of
Dipak Shubhashchandra Mehta (supra), the Hon'ble
Supreme Court has held that the principles of granting bail
where there is a delay in trial should not be applied to all cases
mechanically.
9. The judgments relied upon by the learned counsel for the
petitioner in Akhtari BI (SMT) (supra) and Tarun Tejpal
(supra) are decided on particular facts and circumstances of the
case, which are not applicable to the facts of the present case.
10. In view of the judgment of the Apex Court in Dipak
Shubhashchandra Mehta (supra) at the stage of granting the
bail, the detail examination and evaluation of the evidence need
not be undertaken particularly when the petitioner is charged of
having committed a serious offence of rape on a minor girl of
tender age.
11. Hence, keeping in view the nature of the accusation, severity of
punishment in case of conviction which can be awarded upto
life, nature of the supporting evidence and reasonable
apprehension of the petitioner tampering with the witnesses and
danger of the petitioner absconding or fleeing from justice, the
petitioner has no ground in his favour for grant of bail. As such
the application is dismissed.
VINOD GOEL, J.
SEPTEMBER 11, 2017
"shailendra"
