Madhya Pradesh High Court
Jitendra vs The State Of Madhya Pradesh on 21 February, 2024
Author: Prem Narayan Singh
Bench: Prem Narayan Singh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
ON THE 21 st OF FEBRUARY, 2024
MISC. CRIMINAL CASE No. 2457 of 2024
BETWEEN:-
JITENDRA S/O SHANKARLAL, AGED ABOUT 45 YEARS,
OCCUPATION: LABOUR BEDAMAU CHOWKI
KAMLAPUR, TEHSIL BAGLI DISTRICT DEWAS
(MADHYA PRADESH)
.....APPLICANT
(BY SHRI MITESH JAIN, ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH STATION
HOUSE OFFICER THROUGH P.S. BAGLI, (MADHYA
PRADESH)
2. JASMEAT S/O JAGDISH SENDHAV, AGED ABOUT
42 YEARS, OCCUPATION: LABOUR BEDAMAU
CHOWKI KAMALAPUR, TEH. BAGLI DIST. DEWAS
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI SACHIN JAISWAL, PANEL LAWYER)
(BY SHRI ASHISH GUPTA, ADVOCATE FOR RESPONDENT NO. 2)
This application coming on for admission this day, the court passed the
following:
ORDER
Applicant has filed this application under Section 439(2) of the Code of
Criminal Procedure, 1973 for cancellation of the bail given to the non-applicant
Jasmat S/o Jagdish Sendhav vide order dated 08.01.2024 passed by the trial
Court.
2 . The prosecution story in brief is that on 10.12.2023, when the
prosecutrix was alone at her home at around 1 o'clock, accused approached her
and sexually assaulted by touching the private parts of the prosecutrix with
brutal intention of committing rape upon her. Accordingly, offence has been
registered against the respondent No. 2.
3. Learned counsel for the applicant contended that the learned trial Court
failed to appreciate the gravity of the evidence as well as statement of the
prosecutrix. The prosecutrix has specifically stated in her statement recorded
under Section 164 of Cr.P.C. that the accused came to her home and asked
about her father, when she replied that no one was in the house, the accused
caught the prosecutrix with bad intention and threatened her. Counsel has also
pointed out that less than 1 month of incarceration and the age of the
prosecutrix is less than 14 years whereas the age of the accused/respondent No.
2 is 42 years in spite of that, trial Court has granted bail to the
accused/respondent No. 2. The offence committed by the accused is heinous in
nature. Therefore, respondent No. 2 does not deserve for bail. Hence, he prays
that the bail granted to the respondent No. 2 Jasmat be cancelled.
4. Learned Panel Lawyer has also supported the aforesaid contentions of
the petitioner.
5. Per contra, learned counsel for the respondent No. 2 opposes the
prayer by submitting that the ground of incarceration cannot be entertained for
cancellation of bail. No bail can be cancelled without any strong event of
supervening circumstances. Hence, prays for its rejection. Learned counsel has
also relied upon the verdict of Hon'ble Apex Court rendered in the case of
Bhuribai Vs. State of Madhya Pradesh in SLP No. 9508/2022.
6. Heard learned counsel for the parties and perused the documents filed
along with the case diary.
7 . Considering all the facts and circumstances of the case, arguments
advanced by counsel for the parties, nature and gravity of allegation as also the
fact that the age of the respondent No. 2 is 42 years and prosecutrix's age is
only 13 years and 7 days and also the statement recorded under Section 164 of
Cr.P.C., it appears that the finding given by the trial Court regarding to grant of
bail does not appear to be justifiable. In so far as the verdict of Hon'ble Apex
Court in Bhuri Bai (supra) is concerned, in this case, Co-ordinate Bench of
this Court has suo moto considered the bail order and cancelled the same and
under such circumstances, the SLP was allowed by Hon'ble Apex Court.
Whereas, in the case at hand, application under Section 439(2) of Cr.P.C. has
been filed on instance of aggrieved father of minor prosecutrix. Hon'ble Apex
Court in aforesaid case of Bhuribai (supra) specifically ordained as under:-
"19. It remains trite that normally, very cogent and
overwhelming circumstances or grounds are
required to cancel the bail already granted.
Ordinarily, unless a strong case based on any
supervening event is made out, an order granting
bail is not to be lightly interfered with under
Section 439(2) of Cr.P.C."
8. However, it is also well settled that cancellation of bail cannot be
limited to the occurrence of supervening circumstances or overwhelming
evidence against accused. On this aspect, the law laid down by Hon'ble Apex
Court in Neeru Yadav Vs. State of U.P. and another [(2014) 16 SCC 508] is
condign to quote here :-
"12...It is well settled in law that cancellation of bail after
it is granted because the accused has misconducted himself
or of some supervening circumstances warranting such
cancellation have occurred is in a different compartment
altogether than an order granting bail which is unjustified,
illegal and perverse. If in a case, the relevant factors which
should have been taken into consideration while dealing
with the application for bail and have not been 18 (2014)
16 SCC 508 taken note of bail or it is founded on
irrelevant considerations, indisputably the superior court
can set aside the order of such a grant of bail. Such a case
belongs to a different category and is in a separate realm."
9. In the case of Mahipal Vs. Rajesh Kumar @ Polia [2020 (2) SCC
118], Hon'ble Apex Court further observed in para 17 that :
"17. Where a court considering an application for
bail fails to consider relevant factors, an appellate
court may justifiably set aside the order granting
bail. An appellate court is thus required to
consider whether the order granting bail suffers
from a non-application of mind or is not borne out
from a prima facie view of the evidence on record.
It is thus necessary for this Court to assess
whether, on the basis of the evidentiary record,
there existed a prima facie or reasonable ground to
believe that the accused had committed the crime,
also taking into account the seriousness of the
crime and the severity of the punishment."
10. Considering the aforesaid settled proposition of law laid down by
Hon'ble Apex Court in the case of Deepak Yadav Vs. State of U.P. and
another reported reported in (2022) 8 SCC 559 stated as under :-
31. It is no doubt true that cancellation of bail cannot be
limited to the occurrence of supervening circumstances.
This Court certainly has the inherent powers and
discretion to cancel the bail of an accused even in the
absence of supervening circumstances. Following are the
illustrative circumstances where the bail can be cancelled
:-
a) Where the court granting bail takes into account
irrelevant material of substantial nature and not trivial
nature while ignoring relevant material on record.
b) Where the court granting bail overlooks the influential
position of the accused in comparison to the victim of
abuse or the witnesses especially when there is prima facie
misuse of position and power over the victim.
c) Where the past criminal record and conduct of the
accused is completely ignored while granting bail.
d) Where bail has been granted on untenable grounds.
e) Where serious discrepancies are found in the order
granting bail thereby causing prejudice to justice.
f) Where the grant of bail was not appropriate in the first
place given the very serious nature of the charges against
the accused which disentitles him for bail and thus cannot
be justified.
g) When the order granting bail is apparently whimsical,
capricious and perverse in the facts of the given case.
11. So also paragraphs 39 to 42 of the aforesaid judgment, are relevant to
quote here under:-
"37. There is certainly no straight jacket formula which
exists for courts to assess an application for grant or
rejection of bail but the determination of whether a case
is fit for the grant of bail involves balancing of numerous
factors, among which the nature of the offence, the
severity of the punishment and a prima facie view of the
involvement of the accused are important. 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 basic principles laid down in a catena of
judgments by this Court.
38. However having said that, in the case at hand, it is
manifestly incorrect on the part of the High Court to have
granted bail to the Respondent No.2/Accused without
taking into consideration the relevant facts and
circumstances and appropriate evidence which proves that
the Respondent No.2/Accused has been charged with a
serious offence.
39. Grant of bail to the Respondent No.2/Accused only on
the basis of parity shows that the impugned order passed by
the High Court suffers from the vice of non-application of
mind rendering it unsustainable. The High Court has not
taken into consideration the criminal history of the
Respondent No.2/Accused, nature of crime, material
evidences available, involvement of Respondent
No.2/Accused in the said crime and recovery of weapon
from his possession.
4 0 . Having considered the aforesaid facts of the
present case in juxtaposition with the judgments referred
to above, we are of the opinion that the impugned order
passed by the High Court is not liable to be sustained and is
hereby set aside."
12. In view of the aforesaid propositions, the matter has been pondered.
In the instant case, an offence was committed against a girl child of 13 years
old. As per her statement recorded under Section 164 of Cr.P.C., she
addressed the accused as her elder father (Bade Papa), who is a 42 years old
matured person. As per statement, he entered in her room in daylight at 1 PM,
when she was at her home. First the accused asked her as to where is his father
and who are with her. When she replied that all went to field, then, the accused
called her father on his mobile but mobile was in the room. Under these
conditions, he molested the minor girl. As per statement of prosecutrix, he tore
clothes of minor girl and brutally molested her. When she started crying,
accused pressed her mouth and threatened to kill her and her family members
and also threatened to set ablaze her house. As such, the pain of minor child is
beyond imagination, but the learned trial Court ignoring the act and conduct of
the accused and the painful condition of the minor child, passed the impugned
order for releasing the respondent No. 2 on bail. As such, the impugned order
was passed by the trial Court without proper application of mind. Hence, it is
erroneous and unsustainable in the eyes of law.
13. Accordingly, this M.Cr.C. is allowed and the order dated 08.01.2024
passed by the trial Court granting bail to respondent No. 2 is hereby set aside.
14. The respondent No. 2 is directed to surrender himself before the
Court within a period of one week from the date of passing of this order,
otherwise, the learned trial Court shall initiate the proceeding for taking him into
the custody in accordance with law.
15. It is clarified that the observations made by this Court are only limited
to the petitioner's application of cancellation of bail. The trial Court is directed
not to be influenced by the observations made hereinabove by this Court in
course of trial. This order shall also not prevent the respondent No. 2 /accused
from applying afresh for bail at later stage, if any new circumstance arises.
16. A copy of this order be sent to the concerned trial Court immediately
for necessary compliance.
Certified copy as per rules.
(PREM NARAYAN SINGH)
JUDGE
Vindesh
