Sri Raj Chandra Rudrapaul vs For Petitioner(S) : Mr. ...
2021 Latest Caselaw 776 Tri

                    HIGH COURT OF TRIPURA
                          AGARTALA
                          Crl. Petn/33/2021
1.Sri Raj Chandra Rudrapaul                   -----------Petitioner(s)
son of Guru Prasad Rudrapaul, Panisagar, North Tripura on behalf of
Sri Rajesh Rudrapaul, son of Raj Chandra Rudrapaul, resident of
Panisagar Nagar Panchayat, P.S.Panisagar, District-North Tripura
                                             --------------Accused(s)
2.Sri Subhajit Sen alias Suvho, son of late Sankar Lal Sen, resident
of Panisagar Nagar Panchayat, P.S.Panisagar, District-North Tripura
                                             --------------Accused(s)
3.Sri Sanjoy Nath, son of Sri Manindra Nath, resident of Tilthai,
P.S.Paniasgar, District-North Tripura        --------------Accused(s)

                                Versus
The State of Tripura represented by PP, High Court of Tripura

                             BEFORE

      HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY


For Petitioner(s)         : Mr. P.K.Biswas, Sr. Adv.
                            Mr. Pranabashish Majumder, Adv.
For Respondent(s)         : Mr. Ratan Datta, PP.

Order dated               : 18.08.2021



                              ORDER

[1] By means of filing this petition, petitioners have sought

for quashing the order dated 30.06.2021 passed by the Special Judge

(POCSO), North Tripura, Dharmanagar in case No.BA/67/2021

whereby bail granted to the petitioners was cancelled by the learned

Special Judge.

[2] Factual back ground of the case is as under:

All the 03(three) petitioners were booked on the charge

of having committed gang rape on a minor girl (victim hereunder).

Mother of the victim [name withheld to hide identity of the victim]

lodged a written FIR with the officer -in-charge of Panisagar police

station on 31.05.2021 alleging, inter alia, that her daughter was sent

to a nearby shop at about 8 O'clock in the morning on

28.05.2021wherefrom she returned home at around 11 O'clock.

After she returned home, the mother noticed changes in her mood.

She was not speaking to anyone and she was even reluctant in

having her food. To the query of her mother, the victim told her that

while she was going to the shop, accused Rajesh Rudrapaul along

with Subhajit Sen had forcibly lifted her in their vehicle and

thereafter she was taken to a lonely place where they committed rape

on her by turn inside the vehicle. The other accused was then

standing outside the vehicle as a guard. After committing rape on

her, they left her in front of Apanjan Club in her neighbourhood

from where she walked to her home. The victim told her mother that

in fear and shame she could not disclose anything to her mother

immediately after the occurrence.

Crl.Petn.33 of 2021

[3] Based on the said FIR of the mother of the victim,

Panisagar P.S. Case no.026 of 2021 under Sections 342,376(2)(i),

376D and 506 IPC and Section 4 of the Protection Of Children from

Sexual Offences Act,2012(POCSO) was registered against the

petitioners and investigation of the case was taken up. In the course

of investigation, police arrested accused Subhajit Sen and Sanjoy

Nath on 31.05.2021 and accused Rajesh Rudrapaul was arrested on

01.06.2021 and after arrest they were produced in court.

[4] The learned Special Judge (POCSO) by his order dated

18.06.2021 granted bail to the petitioners in view of the period of

detention already undergone by them and the submissions made by

their counsel before the court. It would be appropriate to reproduce

the relevant extract of the said order of the learned Special Judge

which is as under:

".....Ld. Counsel of the accused persons have submitted that the accused persons are innocent and they have been falsely implicated in this case and that there is delay of three days and such delay in this type of case is an unbelievable one. Moreover, it is alleged that the offence occurred in broad day light and during that time curfew was going on and there was repeated police patrolling in all the area under Panisagar P.S. and thus Ld.Counsel prayed to grant bail to the accused persons.

On the other hand, Ld. Special PP submits that considering the materials available in the case record, the bail prayer may be rejected at this stage.

Crl.Petn.33 of 2021

I have heard both sides and also gone through the case record meticulously.

Considering the period of detention of the accused persons and the grounds as agitated by Ld. Counsel of the accused persons, the bail prayers are allowed. Accused persons namely Rajesh Rudrapaul, Subhajit Sen and Sanjoy Nath may go on bail on furnishing bond of Rs.50,000/-(Rupees fifty thousand) with one surety each of the like amount subject to the condition that the surety must be a local having substantial quantity of immovable property within North Tripura District and the accused persons shall report to the Investigating Officer on every alternative day till the completion of the investigation and as and when called for and they shall not try to tamper with the evidence and or the witnesses, in default, remanded to J/C till 02.07.2021......."

[5] After the petitioners were released on bail, Smt. Uma

Rani Nama, Woman Sub-Inspector of Police who was investigating

the case, submitted a petition before the learned Special Judge on

24.06.2021 seeking cancellation of bail on the ground that after their

release on bail, the petitioners were continuously pressurizing the

informant mother of the victim to withdraw her case and they were

also trying to influence the witnesses otherwise. It was also stated by

the investigating officer in her petition that the whole family of the

victim was in fear. It was asserted by the IO in her petition that such

information provided by the mother of the victim was recorded in the

General Diary of police station vide GD Entry Nos.18 &19 dated

22.06.2021 and GD Entry No.27 dated 22.06.2021. Relevant extract

of her petition is as under:

Crl.Petn.33 of 2021

"...2.That, pursuant to lodging of above stated complaint the above noted respondents/ accused persons was arrested by the petitioner, and accordingly they were produced before this Hon'ble Court.

3. That, this Hon'ble Court was pleased to grant bail to above noted respondents/accused persons on strict terms and condition as mentioned in their order of bail dated 18.06.2021.

4That, all the respondents/accused persons after release from jail custody continuously threatening complainant to withdraw the case and also they tried to temper the evidences of the case and in this respect as evidence Extract of GDE vide No.18, 19 dated 22-06-2021 and GD Entry No.27 dated 22.06.2021 enclosed herewith for kind perusal of this Hon'ble Court.

5.That, the complainant thereafter, apprehends positive danger to her life as well as her family.

6.That, the respondents/accused persons has violated the terms and condition of bail as granted by this Hon'ble Court.

7.That, no similar petition has been filed by the petitioner before any superior /appellate court.

So, it is prayed that, the bail granted to the respondents/ accused persons be cancelled and they may be taken into judicial custody...."

[6] The Public Prosecutor moved the petition in the Court

of the Special Judge on 30.06.2021. The learned Special Judge after

hearing the counsel representing the parties cancelled the bail

granted to the petitioners and directed the investigating agency for

arresting the petitioners and take them into custody. Said order dated

30.06.2021 of the learned Special Judge reads as under:

"......Ld. Special PP Mr. Sarma submits that the accused persons after being released from jail Crl.Petn.33 of 2021

custody are continuously threatening the complainant to withdraw the case and they also tried to tamper the evidence of this case and furthermore the accused persons were roaming around the house of the complainant in a vehicle

dated 22-06-2021 were made and thus the accused persons violated the terms and conditions of their bail, as such he prayed for cancellation of bail granted to the accused persons and also prayed for their re-arrest.

Ld. Senior Counsel Mr. A. K. Das and other defence counsels submit that the application filed by the prosecution is misconceived and not filed in accordance with proper provisions of law. They also submit that the order under challenge was passed by this court under section 437 of Cr.P.C. and so the application for cancellation of the order should have been filed under section 437(5) of Cr.P.C.; whereas the instant application has been filed under section 439(2) of Cr.P.C.

On hearing both the sides this court opined that Ld. Defence counsels correctly pointed out that this court being a Special Court granted bail to the accused persons under section 437 of Cr.P.C. and so the bail so granted may be cancelled under section 437(5) of the said code and not under section 439(2). However, it is an established position of law that mis-quotation of law by the advocate is not a good ground for rejection of the application. So, in this case the petition of the prosecution should not be summarily rejected merely on the ground of mis- quoting of the provisions of law and the court should look into the merits of the case.

Hon'ble Supreme Court of India in the case of State Through C.B.I vs Amaramani Tripathi, Appeal (Crl.) 1248 of 2005 observed that 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.

Crl.Petn.33 of 2021

Bail already granted can only be cancelled if any of the following conditions is fulfilled:

(1) the accused misuses his liberty by indulging in similar criminal activity

(2) the accused interferes with the course of investigation,

(3) the accused attempts to tamper with evidence of witnesses,

(4) the accused threatens witnesses or indulges in similar activities which would hamper smooth investigation,

(5) the accused attempts to flee to another country, (6) the accused attempts to make himself scarce by going underground or becoming unavailable to the investigating agency,

(7) the accused attempts to place himself beyond the reach of his surety, etc.

These grounds are illustrative and not exhaustive.

In the case in hand as the relevant entries of the CD and extracts of the GDE nos. 18, 19 and 27 dated 22-06-2021 reveal the accused persons after being released on bail from this court on 18.06.2021 started misusing the liberty granted to them by continuously roaming around the house of the complainant and threatening and influencing the complainant and other prosecution witnesses either by themselves or by their men and agents.

Therefore the accused persons violated the vital conditions of bail granted to them vide order dated 18-06-2021. This court opined that these activities of the accused persons are good enough to justify the cancellation of the privilege granted to them by way of bail.

As said above, here on receiving complaint as to threatening of the witnesses by the accused- respondents on being released on bail the concerned officer of the Panisagar Police Station registered GDE nos. 18, 19 dated 22-06-2021 and after inquiry the investigating officer made GDE no. 27 dated 22- Crl.Petn.33 of 2021

06-2021. As per law, when a complainant is made with regard to threatening of witnesses or tempering of evidence, a separate case is to be registered on this matter and mere noting the said complaint in the case diary of the existing case by way of making GDE is not sufficient. Therefore, the concerned officer of the Panisagar Police Station and the investigating officer of this case did not act as per law and absolved the liabilities from their shoulders merely by making GD entries. However such defect in investigation and negligence in duty should not be considered in deciding the merits of the case.

In this regard the Superintendent of Police, North Tripura is directed to take necessary action against the GD officer concerned and the investigating officer of this case.

Send a copy of this order to the Superintendent of Police, North Tripura.

Secondly, this is a case under the POCSO Act where the victim, due to her age, is very vulnerable. If the accusedrespondents are allowed to influence and threaten the witnesses, especially the victim, by way roaming around the locality and putting pressure upon the complainant to withdraw the case, the basis of the case would be shaken.

In the aforesaid premises, considering all aspects of the case it is opined that it is a fit case wherein the privilege granted to the accused persons by way bail should be taken back to secure proper and impartial investigation.

Hence, the petition filed by the prosecution stands allowed and bail granted to the accused persons vide order dated 18-06-2021 is cancelled.

It is hereby ordered that the accused persons be rearrested and taken into custody."

[7] Pursuant to the said order, bailed out accused Subhajit

Sen was arrested by police on 30.06.2021 and accused Rajesh

Rudrapaul and Sanjoy Nath were arrested on 01.07.2021. Crl.Petn.33 of 2021

[8] Aggrieved by and dissatisfied with the said order dated

30.06.2021 whereby their bail was cancelled, petitioners have

approached this court by filing this petition under Sections 482

Cr.P.C for quashing the impugned order.

[9] By this time, the investigating agency after completion

of investigation has charge-sheeted all the 03 petitioners for having

committed offence punishable under Sections 342, 363, 376(2)(i),

376D and 506 IPC and Section 4, POCSO Act.

[10] Heard Mr.P.K.Biswas, learned Sr.Advocate appearing

for the petitioners along with Mr.P.Majumder, learned Advocate.

Heard Mr.Ratan Datta, learned Public Prosecutor.

[11] Mr.P.K.Biswas learned Sr. Advocate, appearing for the

petitioners argues that the impugned order dated 30.06.2021 is

wholly erroneous and liable to be quashed because bail granted to

the petitioners was cancelled by the learned Special Judge without

issuing any notice to the said petitioners and the copies of the

relevant documents on the basis of which learned Special Judge

cancelled their bail were not also supplied to them. Learned

Sr.Advocate contends that cancellation of bail is completely

distinguishable and different from rejection of bail and bail once

granted cannot be cancelled unless a genuine case based on Crl.Petn.33 of 2021

convincing materials is made out by the prosecution. In support of

his contention Mr.Biswas, learned Sr. Advocate, has relied on the

decision of the Apex Court in STATE (DELHI

ADMINISTRATION) Versus SANJAY GANDHI reported in

(1978) 2 SCC 411, wherein the Apex Court has succinctly held that

cancellation of bail involves a review of the decision already made

which can be permitted only if it appears to the court that by reason

of supervening circumstances the fair trial of the case would not be

possible if the accused is allowed to retain his freedom on bail.

Observation of the Hon'ble Supreme Court made in this regard is as

follows:

"13. Rejection of bail when bail is applied for is one thing; cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial. The fact that prosecution witnesses have turned hostile cannot by itself justify the inference that the accused has won them over. A brother, a sister or a parent who has seen the commission of crime, may resile in the Court from a statement recorded during the course of investigation. That happens instinctively, out of natural love and affection, not out of persuasion by the accused. The witness has a stake in the innocence of the accused and tries therefore to save him from the guilt. Likewise, an employee may, out of a sense of gratitude, oblige the employer by uttering an untruth without pressure or persuasion.

In other words, the objective fact that witnesses have turned hostile must be shown to bear a causal connection with the subjective involvement therein of the respondent. Without such proof, a bail once granted cannot be cancelled on the off chance or on Crl.Petn.33 of 2021

the supposition that witnesses have been won over by the accused. ............................................."

[12] Counsel submits that same principles with regard

to cancellation of bail was reiterated by the Hon'ble Apex Court in X

Versus STATE OF TELENGANA AND ANOTHER reported in

(2018) 16 SCC 511 wherein the Hon'ble Supreme Court with regard

to the distinction between rejection of bail in a non-bailable case at

the initial stage and cancellation of bail after it has been granted

observed as under:

"14. In a consistent line of precedent this Court has emphasised the distinction between the rejection of bail in a non-bailable case at the initial stage and the cancellation of bail after it has been granted. In adverting to the distinction, a Bench of two learned Judges of this Court in Dolat Ram v. State of Haryana7 observed that(SCC pp.350-51, para 4)

"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."

Crl.Petn.33 of 2021

15.These principles have been reiterated by another two Judge Bench decision in CBI v. Subramani Gopalakrishnan8 and more recently in Dataram Singh v State of U.P.9(Subramani case 8, SCC pp. 303-04, para23)

"23.It is also relevant to note that there is difference between yardsticks for cancellation of bail and appeal against the order granting bail. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of bail already granted. Generally speaking, the grounds for cancellation of bail 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 concessions granted to the accused in any manner. These are all only few illustrative materials. The satisfaction of the Court on the basis of the materials placed on record of the possibility of the accused absconding is another reason justifying the cancellation of bail. In other words, 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."

[13] Mr. Biswas, learned Sr. Advocate also relies on the

report of the State Forensic Science Laboratory wherein the forensic

expert has viewed that no seminal stain was found in the wearing

apparels of the victim as well as of the petitioners seized by the

investigating agency in the course of investigation. Counsel has also

pointed out to the court , the delay in lodging the FIR. It is contended

by learned Sr. counsel that the occurrence allegedly took place on

28.05.2021 whereas the FIR was lodged by the mother of the victim

03 days thereafter on 31.05.2021 and there is no explanation as to

why such delay occurred in reporting the matter to police. According Crl.Petn.33 of 2021

to learned counsel the delay in lodging the FIR indicates that it was a

concocted and planted case against the petitioners. It is therefore,

finally argued by Mr. Biswas, learned Sr. counsel that in view of the

law laid down by the Apex Court in the judgment cited to supra and

the facts and circumstances of the case and also the fact that bail

granted to the petitioners was cancelled without serving any prior

notice on them, the impugned order is liable to be quashed.

[14] Mr.Ratan Datta, learned PP, while opposing the

contention of the petitioners, submits that even though petitioners

were booked under the charge of kidnapping and gang rape of a

minor girl, the learned Special Judge did not furnish any reason in

his order dated 18.06.2021 as to why bail was being granted to them

almost within a fortnight of their arrest. Moreover, immediately after

their release on bail, the complainant appeared at the police station

and complained to the investigating officer that the petitioners were

misusing their liberty and trying to interfere in the course of

investigation. In these circumstances, the prosecution moved the

petition before the trial Judge for cancellation of bail. Relying on the

decision of the Apex Court in DINESH M.N.(S.P) Versus STATE

OF GUJARAT reported in (2008) 5 SCC 66, Mr. Datta, learned PP

submits that the Apex Court has succinctly held it is always

Crl.Petn.33 of 2021

necessary to assign reasons in a bail order when the accused is

charged of having committed a serious non-bailable offence. In the

said judgment relied on by learned PP, the Hon'ble Apex Court in

para 21 of the judgment relying on its earlier decision in Kalyan

Chandra Sarkar vs. Rajesh Ranjan (2004) 7 SCC 528 has held as

under:

"21. Though the High Court appears to have used the expression 'ban' on the grant of bail in serious offences, actually it is referable to the decision of this Court in Kalyan Chandra Sarkar v. Rajesh Ranjan 11. In para 11 it was noted as follows:(SCC pp.535-36)

"11. The law in regard to grant or refusal of bail is very well settled. 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 merit 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. Any order devoid of such reasons would suffer from non- application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:

(a) The nature of accusation and the 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.

(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh (2002) 3 SCC 598 and Puran v. Rambilas (2001) 6 SCC

338)."

Crl.Petn.33 of 2021

[15] According to learned PP, in the order dated 18.06.2021,

whereby bail was granted to the petitioners, learned Sessions Judge

did not indicate any reason at all. Thereafter, new circumstances

cropped up requiring cancellation of bail and on the basis of a

petition moved by the prosecution, the learned Special Judge by

reasoned order, cancelled the bail in exercise of his power conferred

under sub-section (2) of Section 439 Cr.P.C. There is, therefore, no

illegality in the impugned order.

[16] In this regard, counsel has also relied on an earlier

decision of the Apex Court in STATE OF MAHARASHTRA VS.

SITARAM POPAT VETAL AND ANOTHER reported in (2004) 7

SCC 521, wherein the Apex Court held that it is necessary for the

courts dealing with an application for bail to consider among other

circumstances, the nature of accusation and the severity of its

punishment on conviction and nature of supporting evidence and

also the reasonable apprehension of tempering with witness or

apprehension of threat to the complainant and the prima facie

satisfaction of the court in support of the charge and any order de

hors of such reasons would suffer from non-application of mind.

Learned Public Prosecutor, therefore, contends that in the order

dated 18.06.2021 of the learned Special Judge whereby bail was

Crl.Petn.33 of 2021

granted to the petitioners, these essential parameters were not

considered by the learned Special Judge.

[17] Mr.Ratan Datta, learned PP, has also relied on the

decision of the Patna High Court in Usha Devi versus The State of

Bihar & Ors. [2006 SCC OnLine Pat 266] wherein the Patna High

Court held that cancellation of bail under Section 437(5) and 439(2)

Cr.P.C are identical and bail once granted to the accused under either

of these provisions can be cancelled under certain supervening

circumstances. Observation of the Patna High Court in this regard in

para 18 of the judgment is as under:

"18. It is well settled that the grounds for cancellation of bail under Sections 437(5) and 439(2) of the Code are identical, namely, bail granted under Section 437(1) or 439(1) of the Code can be cancelled broadly when one or more of the following conditions are fulfilled:

(i) The accused misuses his liberty by indulging in similar activity,

(ii) Interferes with the Course of investigation,

(iii) Attempts to tamper with the evidence,

(iv) Threaten witnesses or indulges in similar activities which would hamper smooth investigation,

(v) There is likelihood of the accused fleeing away to another country.

(vi) Attempts to make himself scare by going underground or becoming unavailable to the Investigating Agency,

(vii) Attempts to place himself beyond the reach of the surety,

(viii) Bail has been granted by an inferior Court in a case involving serious offence shocking to the conscience of the superior Court.

(ix) After investigation the facts disclose commission of graver offence."

Crl.Petn.33 of 2021

[18] With regard to the contention of the counsel of the

petitioners regarding delay in lodging the FIR, Mr.Datta learned PP

has relied on the decision of the Apex Court in SATPAL SINGH

Versus STATE OF HARYANA reported in (2010) 8 SCC 714

wherein the Apex Court has held that delay in lodging the FIR in

sexual offence has to be considered with a different yardstick.

Observation of the Apex Court in the said judgment is as under:

"14. In a rape case the prosecutrix remains worried about her future. She remains in traumatic state of mind. The family of the victim generally shows reluctance to go to the police station because of society's attitude towards such a woman. It casts doubts and shame upon her rather than comfort and sympathise with her. Family remains concern about its honour and reputation of the prosecutrix. After only having a cool thought it is possible for the family to lodge a complaint in sexual offences. (Vide Karnel Singh Vs. State of M.P. AIR 1995 SC 2472; and State of Punjab Vs. Gurmeet Singh & Ors. AIR 1996 SC 1393)."

[19] On this issue, counsel has also referred to a decision of

the Apex Court in SOHAN SINGH AND ANOTHER Versus

STATE OF BIHAR reported in (2010) 1 SCC68 wherein the Apex

Court with regard to delay in filing FIR in a case of gang rape held

as under:

"13. ..........It is difficult to appreciate the plight of the victim who has been criminally assaulted in such a manner. Obviously, the prosecutrix must have also gone through great turmoil and only after giving it a serious thought, must have decided to lodge the FIR. Precisely this appears to be the reason for little delayed FIR ............................"

Crl.Petn.33 of 2021

[20] Mr.Datta, learned PP has relied on the decision of the

Apex Court in the case of ANIL KUMRA YADAV Versus STATE

(NCT OF DELHI) AND ANOTHER reported in (2018) 12 SCC

129 in support of his contention that bail once granted to the accused

can be cancelled by the high court or court of Sessions even in cases

where the order granting bail suffers from serious infirmities

resulting in miscarriage of justice. The Hon'ble Supreme Court in

the said judgment in the case of Anil Kumar Yadav, having relied on

its earlier decision in the case of Kanwar Singh Meena vs. State of

Rajasthan, (2012) 12 SCC 180 has held as under:

"28. In Kanwar Singh Meena case7, the High Court granted15 bail ignoring the averments made against the accused thereon and statement of witnesses recorded under Section 164 Cr.P.C. Pointing out that the High Court did not keep in view the prima facie materials against the accused, this Court cancelled the bail. By setting aside the order of bail, in para 10, this Court observed as under:-(Kanwar Singh case7 , SCC pp 185-86)

"10. Thus, Section 439 of the Code confers very wide powers on the High Court and the Court of Session regarding bail. But, while granting bail, the High Court and the Sessions Court are guided by the same considerations as other courts. That is to say, the gravity of the crime, the character of the evidence, position and status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of his tampering with the witnesses and obstructing the course of justice and such other grounds are required to be taken into consideration. Each criminal case presents its own peculiar factual scenario and, therefore, certain grounds peculiar to a particular case may have to be taken into account by the court.

Crl.Petn.33 of 2021

The court has to only opine as to whether there is prima facie case against the accused. The court must not undertake meticulous examination of the evidence collected by the police and comment on the same. Such assessment of evidence and premature comments are likely to deprive the accused of a fair trial. While cancelling the bail under Section 439(2) of the Code, the primary considerations which weigh with the court are whether the accused is likely to tamper with the evidence or interfere or attempt to interfere with the due course of justice or evade the due course of justice. But, that is not all. The High Court or the Sessions Court can cancel the bail even in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If the court granting bail ignores relevant materials indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions Court would be justified in cancelling the bail. Such orders are against the well-

recognised principles underlying the power to grant bail. Such orders are legally infirm and vulnerable leading to miscarriage of justice and absence of supervening circumstances such as the propensity of the accused to tamper with the evidence, to flee from justice, etc. would not deter the court from cancelling the bail. The High Court or the Sessions Court is bound to cancel such bail orders particularly when they are passed releasing the accused involved in heinous crimes because they ultimately result in weakening the prosecution case and have adverse impact on the society. Needless to say that though the powers of this Court are much wider, this Court is equally guided by the above principles in the matter of grant or cancellation of bail."

[emphasis supplied]"

[21] Mr.Datta, learned PP has referred to the statement of the

victim recorded under Section 164(5) Cr.P.C as well as the medical

report and the incriminating police statements of other witnesses

involving the petitioners in the alleged offence. Counsel submits that Crl.Petn.33 of 2021

this is a case of gang rape committed on a minor girl below 16 years

of age which is punishable under Section 376DA and on conviction,

imprisonment for the remainder of natural life and fine is the only

punishment prescribed under the law.

[22] According to learned PP, the investigating agency on

receipt of a specific complaint from the informant mother of the

victim that the petitioners were abusing their liberty granted on bail

recorded the gist of such complaint in the General Diary of the

police station and moved to action by filing a petition before the

Special Judge seeking cancellation of bail and the learned Special

Judge after hearing the counsel of the parties at length cancelled the

bail of the petitioners by an elaborate order within the ambit of his

power. Learned PP, therefore, argues that there is no merit in the

petition seeking quashment of the impugned order and as such the

petition may be rejected.

[23] Perused the entire record including the updated case

diary and considered the submissions made by learned counsel

appearing for the parties. Undoubtedly, the petitioners are charged of

having committed a serious offence punishment of which, on

conviction, is imprisonment for life. Even though it is well settled

that at the bail stage, an exhaustive exploration of the merits of the

Crl.Petn.33 of 2021

case should be avoided, but, the trial judge while granting bail to the

petitioners almost within a fortnight of their arrest on such serious

charges should have at least recorded his finding as to whether he

considered the essential parameters for granting bail to the

petitioners. It would emerge from the order dated 18.06.2021 of the

learned Special Judge that he recorded no reason at all as to why he

granted bail to the petitioners particularly when the charges were

serious and there were adequate materials indicating prima facie

involvement of the petitioners in the alleged offence.

[24] As discussed, the Apex Court in para 28 of the

judgment in the case of Anil Kumar Yadav(supra), has held that the

High Court or the Sessions Court can cancel bail in cases where the

order granting bail suffers from serious infirmities resulting in

serious miscarriage of justice and if the court granting bail ignores

relevant materials indicating prima facie involvement of the accused.

However, in the present case, after the petitioners were granted bail

on 18.06.2021, mother of the complainant met the IO and lodged a

serious complaint with her alleging that the entire family of the

victim was in fear because the petitioners were pressurizing them to

withdraw the case. Thereafter, the IO moved a petition before the

court seeking cancellation of their bail. In these circumstances, the

Crl.Petn.33 of 2021

Special Judge by the impugned order cancelled the bail granted to

the petitioners after providing opportunity of hearing to the parties.

[25] The Hon'ble Supreme Court in Panchanan Mishra vs.

Digambar Mishra reported in (2005) 3 SCC 143 has explained the

object underlying the cancellation of bail in the following words:

"13. We have given our careful consideration to the rival submissions made by the counsel appearing on either side. The object underlying the cancellation of bail is to protect the fair trial and secure justice being done to the society by preventing the accused who is set at liberty by the bail order from tampering with the evidence in the heinous crime and if there is delay in such a case the underlying object of cancellation of bail practically loses all its purpose and significance to the greatest prejudice and the interest of the prosecution. It hardly requires to be stated that once a person is released on bail in serious criminal cases where the punishment is quite stringent and deterrent, the accused in order to get away from the clutches of the same indulge in various activities like tampering with the prosecution witnesses, threatening the family members of the deceased victim and also create problems of law and order situation."

[26] From a careful evaluation of the FIR it would emerge

that the allegations in the FIR, as they stand, make out a prima facie

case within the fold of gang rape punishable under Section 376DA

and Section 5(2) of the POCSO Act. Whether in these circumstances

it would be appropriate to quash the impugned order in exercise of

its inherent powers conferred under Section 482 Cr.P.C is the

question which arises for consideration before this court. It is a

settled proposition of law that jurisdiction to quash under Section Crl.Petn.33 of 2021

482 has to be exercised sparingly. Hon'ble Supreme Court in the

case of State of Telengana Vs. Habib Abdullah Jeelani reported in

(2017) 2 SCC 779 has held that the onerous power vested under

Section 482 Cr.P.C on the High Court has to be exercised cautiously

and diligently. Having referred to its earlier decision in the case of

Kurukshetra University vs. State of Haryana reported in (1977)

4SCC 451: AIR 1977 SC 2229, the Apex Court has succinctly held

that such power under Section 482 Cr.P.C has to be exercised

sparingly, with circumspection and in the rarest of the rare cases.

Observation of the Apex Court in this regard is as under:

"13. There can be no dispute over the proposition that inherent power in a matter of quashment of FIR has to be exercised sparingly and with caution and when and only when such exercise is justified by the test specifically laid down in the provision itself. There is no denial of the fact that the power under Section 482 CrPC is very wide but it needs no special emphasis to state that conferment of wide power requires the Court to be more cautious. It casts an onerous and more diligent duty on the Court.

14. In this regard, it would be seemly to reproduce a passage from Kurukshetra University (1977)4 SCC 451 wherein Chandrachud, J. (as His Lordship then was) opined thus:(SCC p.451.para2)

"2. It surprises us in the extreme that the High Court thought that in the exercise of its inherent powers under Section 482 of the Code of Criminal Procedure, it could quash a first information report. The police had not even commenced investigation into the complaint filed by the Warden of the University and no proceeding at all was pending in any court in pursuance of the FIR. It ought to be realised that inherent powers do not confer an arbitrary jurisdiction on the High Court Crl.Petn.33 of 2021

to act according to whim or caprice. That statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases.""

[27] As discussed, date of birth of the victim as per her

school certificate is 01.07.2005 which means that on the date of

occurrence she was a minor and she was below 16 years of age. The

allegations made in the FIR at their face value prima facie constitutes

an offence of gang rape on a minor girl below 16 years of age which

is punishable under Section 376DA, IPC and Section 5(2) POCSO

Act. The statement of the victim recorded under Section 164(5)

Cr.P.C also support involvement of the petitioners in the alleged

offence wherein the victim stated that one of the petitioners captured

the scene of the sexual intercourse in his mobile and made a

videography of the same and they frightened her by saying that the

video would be made public in case she divulged the incidence to

anybody. As a result, she was hesitant in disclosing the fact to her

parents immediately after the occurrence. The medical report

available on record also lends prima facie support to the allegations

of sexual intercourse. The trial court which granted bail to the

petitioners ignoring these facts was not powerless to cancel such bail

particularly when it was brought to the notice of the court by the

prosecution that the petitioners started misusing their liberty granted

on bail by creating pressure on the complainant mother of the victim Crl.Petn.33 of 2021

to withdraw the case which generated fear in the minds of the

members of the whole family of the complainant. In the impugned

order dated 30.06.2021, the learned Special Judge cancelled the bail

granted to the petitioners after being satisfied that the petitioners

were trying to influence the complainant and other prosecution

witnesses by themselves and through their "men and agents". For

such misuse of liberty granted on bail, the learned Special Judge, in

view of the facts and circumstances of the case, cancelled their bail

by an elaborate order after hearing the parties at length.

[28] In view of the law laid down by the Apex Court in the

judgments cited to supra and the factual background of the case, I

find no illegality in the impugned order of the learned Special judge.

It would emerge from the impugned order that the learned Special

Judge realized that in view of the supervening circumstances brought

before the court, it would not be appropriate to allow the petitioners

to remain on bail in the interest of a fair trial of the case.

[29] For the reasons stated above, the petition is found

devoid of merit. As a result, the petition stands rejected. However, it

is made absolutely clear that the observations made hereinabove,

shall not, in any manner, have any impact on the trial and decision of

the case. Said observations are made for the limited purpose of Crl.Petn.33 of 2021

deciding the matter in hand. The trial judge is free to assess and

evaluate the evidence, uninfluenced by any of such observations.

[30] In terms of the above, petition stands disposed of.

Interim application(s), if any, shall also stand disposed

of.

Return the CD.

JUDGE

Saikat Sarma, PA

Crl.Petn.33 of 2021