Jharkhand High Court
Shamim Ansari Aged About 32 Years Son Of ... vs The State Of Jharkhand on 8 January, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 1408 of 2023
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1. Shamim Ansari aged about 32 years son of Nasim Ansari
2. Ahsan Ali aged about 28 years son of Ali Imam,
Both resident of Village-Khairtiya, P.O.-Koiladeo, P.S.-Mirgang,
District-Gopalganj, Bihar ... Appellants
Versus
The State of Jharkhand .... Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
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For the Appellants : Mr. R.S. Mazumdar, Sr. Advocate
Mrs. Pinki Kumar, Adv.
For the Respondent : Mr. Sanjay Kumar Srivastava, A.P.P.
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th
06/Dated: 08 January, 2024
1. The instant criminal appeal has been filed under Section 21(4) of the
National Investigation Agency Act, 2008 against the order dated 07.06.2023
passed by the learned Special Judge (POCSO Act), Bokaro in Anticipatory
Bail Petition No. 612 of 2023 arising out of Spl. POCSO Case No.38 of
2023, whereby and whereunder the prayer for pre-arrest bail in connection
with Bokaro Thermal P.S. Case No.58 of 2017 corresponding to G.R. Case
No.584 of 2017, registered under Sections 370, 376, 366-A, 120(B) of Penal
Code, under Sections 4 and 12 of Protection of Children From the Sexual
Offences Act, has been rejected.
2. Mr. R.S. Mazumdar, learned senior counsel for the appellant assisted by
Mrs. Pinki Kumari, learned counsel has submitted by referring to the first
information report that there is no specific allegation against the appellants
and as such, it is a fit case for grant of pre-arrest bail but the learned trial
court below without taking into consideration the aforesaid fact has rejected
the instant bail application of the appellants, therefore, the instant appeal.
3. On the other hand, Mr. Sanjay Kumar Srivastava, learned Additional Public
Prosecutor appearing for the respondent-State of Jharkhand has vehemently
opposed the prayer for bail by referring to the statement of the victim
recorded under Section 164 of Cr.P.C., wherein the names of the appellants
have been disclosed as preparatory of the alleged offence and further the
appellant no.1 has been disclosed as the person who committed rape with the
victim.
4. Learned Additional Public Prosecutor, based upon the aforesaid ground, has
submitted that there is no error in the impugned order and as such, the
instant appeal is fit to be dismissed
5. Having heard the aforesaid grounds of both parties, gone across the finding
recorded by the learned trial court while considering the application for pre-
arrest bail in the impugned order dated 07.06.2023 and affidavit-in-objection
filed by the State in pursuance of the order dated 12.10.2023 of this Court.
6. Before adverting to the facts of the instant case, at this juncture it will be
purposeful to discuss the settled law with respect to granting and/or refusing
the pre-arrest bail.
7. It has been settled by the Apex Court time and again in its various
pronouncements that the pre-arrest bail can be granted only in exceptional
circumstances where the court is prima-facie of the view that the applicant
has falsely been implicated in the crime, as grant of anticipatory bail to some
extent, interference in sphere of investigation of an offence and hence, the
court must be circumspect while exercising such powers.
8. It is also settled connotation of law that the grant or refusal of the application
of the pre-arrest bail should necessarily depend on the facts and
circumstance of each case and there is no hard and fast rule and no inflexible
principles governing such exercise by the Court.
9. It is pertinent to mention here that the law on grant of anticipatory bail
has been summed up by the Hon'ble Apex Court in Siddharam Satlinappa
Mhetre vs. state of Maharashtra & Ors. reported in (2011)1 SCC 694 after
due deliberation on the parameters as evolved by the constitution bench in
Gurubaksh Singh Sibbia vs. State of Punjab (1980) 2 SCC 565. The
relevant paragraphs of the said judgment as rendered by the hon'ble Apex
Court is being quoted herein under:-
"111. No inflexible guidelines or straitjacket formula can be provided for
grant or refusal of anticipatory bail. We are clearly of the view that no
attempt should be made to provide rigid and inflexible guidelines in this
respect because all circumstances and situations of future cannot be clearly
visualised for the grant or refusal of anticipatory bail. In consonance with
the legislative intention the grant or refusal of anticipatory bail should
necessarily depend on the facts and circumstances of each case. As aptly
observed in the Constitution Bench decision in Sibbia case [(1980) 2 SCC
565 : 1980 SCC (Cri) 465] that the High Court or the Court of Session has
to exercise their jurisdiction under Section 438 CrPC by a wise and careful
use of their discretion which by their long training and experience they are
ideally suited to do. In any event, this is the legislative mandate which we
are bound to respect and honour.
112. The following factors and parameters can be taken into consideration
while dealing with the anticipatory bail:
(i) The nature and gravity of the accusation and the exact role of the
accused must be properly comprehended before arrest is made;
(ii) The antecedents of the applicant including the fact as to whether the
accused has previously undergone imprisonment on conviction by a court in
respect of any cognizable offence;
(iii) The possibility of the applicant to flee from justice;
(iv) The possibility of the accused's likelihood to repeat similar or other
offences;
(v) Where the accusations have been made only with the object of injuring
or humiliating the applicant by arresting him or her;
(vi) Impact of grant of anticipatory bail particularly in cases of large
magnitude affecting a very large number of people;
(vii) The courts must evaluate the entire available material against the
accused very carefully. The court must also clearly comprehend the exact
role of the accused in the case. The cases in which the accused is implicated
with the help of Sections 34 and 149 of the Penal Code, 1860 the court
should consider with even greater care and caution because overimplication
in the cases is a matter of common knowledge and concern;
(viii) While considering the prayer for grant of anticipatory bail, a balance
has to be struck between two factors, namely, no prejudice should be caused
to the free, fair and full investigation and there should be prevention of
harassment, humiliation and unjustified detention of the accused;
(ix) The court to consider reasonable apprehension of tampering of the
witness or apprehension of threat to the complainant;
(x) Frivolity in 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 an order of bail.
114. These are some of the factors which should be taken into consideration
while deciding the anticipatory bail applications. These factors are by no
means exhaustive but they are only illustrative in nature because it is
difficult to clearly visualise all situations and circumstances in which a
person may pray for anticipatory bail. If a wise discretion is exercised by
the Judge concerned, after consideration of the entire material on record
then most of the grievances in favour of grant of or refusal of bail will be
taken care of. The legislature in its wisdom has entrusted the power to
exercise this jurisdiction only to the Judges of the superior courts. In
consonance with the legislative intention we should accept the fact that the
discretion would be properly exercised. In any event, the option of
approaching the superior court against the Court of Session or the High
Court is always available."
10.In Sushila Aggarwal v. State (NCT of Delhi) reported in
(2020) 5 SCC 1 the Constitution Bench of the hon'ble Apex Court has
reiterated that while deciding applications for anticipatory bail, courts
should be guided by factors like the nature and gravity of the offences
and the role attributed to the applicant and the facts of the case.
11.In light of the aforesaid legal proposition and taking in to consideration
the rival submissions of the learned counsel for the parties, this court is
now adverting to the facts of the present case to reach out the conclusion
that the case of pre-arrest bail for the applicant is made out or not.
12.This Court in order to appreciate the argument had gone through the
statement of the victim recorded under Section 164 of Cr.P.C. as
available in the para 24 of the case diary, wherein she has fully supported
the prosecution version against both the appellants of subjecting her to
physical assault by committing rape upon her. For ready reference the
statement of victim as recorded under section 164 of Cr.P.C is being
quoted here under:-
"वािदनी सुमन कुमारी को 164 द० ० स० का बयान िन कार है ।
: ा आप अपनी मज से बयान दे ना चाहती है ?
उतर : जी हाँ िकसी कार का कोई लोभ या दववा नही ं है ।
: ा आप शपथ हण करने या कसम खाने का अथ समझती है ?
उतर: जी नही ं
: घटना के स ं ध म ा बयान दे ना चाहती है ?
उतर: सु मन उफ ल ी ने कहा था िक अ े ूटीिशयन का काम िसखाये गी और फुसरो ले गई
और वहां म बै ठाकर िसवान भे ज दी िसवान म संजय िसं ह लेने आये वे मुझे पेहली मे उतार कर ले
गये जो आरके ा चलाता था वही ं पर मुझे जबरद ी नचवाया जाता था मुझे पैसा भी नही दीया
जाता था, और न ही ं िकसी सिबात करने िदया जाता था । यह बात 6 अ ैल 2017 की है मुझे 6
अ ेल को भे जा गया था ।
दु सरे िदन ल ी दे वी िसवान आई वही मुझे िकसी से बात करने नही ं दे ती थी वह मुझे डां टकर कई
जगहों पर नचवाया गया। मुझे मािलक से भी बात करने नही ं िदया जाता था । उसके दु सरे पित भी
बबहार म है उसी का भै सुर मेरे साथ गलत काम िकया है यह मु ीम है तीन चार बार िकया है
ल ी मुझे म म बाहर से बं द कर दे ती थी, आधी रात म उसका मैसुर और उसका पित िजसका
नाम गोलु और अली है वे लोग मु झे दु सरे जगह बे चने िक बात करते थे । उसकी बहन भी वही ं रहती
थी। भिगनी भी वही ं पर थी उ छत पर भे ज िदया था गोलु से मेरे साथ गलत करवाया गया और
उसे कहा गया िक टाईम पास रखना और िकसी से नही ं बताना
उसने अपने पित को मेरे िलए एक अ ा लड़का माही के िलए खोजने को कहा। जब म वहां से
बोकारो आई तो ल ी दे वी मुझसे कहती थी िक मालीक के साथ खना िपना ो खा रही हो तु ारा
पैसा कौन दे गा ? तु ारा बाप दे गा ? अपना ों नही खा रही हो।
अली और ल ी मुझे दु सरे जगह रखवाने की बात करते थे । जब मै बोकारो आई तो मुझे ल ी की
बहन ोती और मु ान ने मुझे ब त मारा था मु ान मुझे िसवान म भी मारने िक धमकी दे ती
थी, यही मेरा बयान है मुझे और कुछ नही ं कहना है।"
13.This Court, considering the specific attributability in the impugned order and
the names of both the appellants have been disclosed by the victim in her
statement recorded under Section 164 of Cr.P.C., is of the view that it is not
a fit case where the privilege of anticipatory bail is to be granted to the
appellants.
14.Considering the aforesaid facts, this Court is of the view that the impugned
order suffers from no illegality and infirmity.
15.Accordingly, the instant appeal fails and is dismissed.
(Sujit Narayan Prasad, J.)
(Pradeep Kumar Srivastava, J.)
Pappu/-
