Tripura High Court
Mr. S. Sarkar vs Mr. R. Datta on 19 May, 2021
HIGH COURT OF TRIPURA
AGARTALA
A.B. No. 21 of 2021
For Petitioner(s) : Mr. S. Sarkar, Sr. Adv.
Mr. K.D. Singha, Adv.
For Respondent(s) : Mr. R. Datta, P.P.
HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY
Order
19/05/2021
[1] This is an application filed under section 438 of the
Code of Criminal Procedure, 1973 (Cr.P.C hereunder) for granting pre
arrest bail to the petitioner who is an FIR named accused in Salema P.S.
case No. 2020 SLM 012 registered under sections 448 and 376 IPC and
section 4 of the Protection of Children from Sexual Offences Act, 2012.
[2] The factual background of the case is as under:
The informant who is the aunt of the victim (name
withheld) lodged an FIR with the Officer in Charge of Salema Police
Station on 08.09.2020 alleging, inter alia, that at about 3 O'clock in the
afternoon while she was going to the tube well near her house for
fetching water, the 13 years old victim ran to her from her nearby
house and started crying. The victim told the informant that the
accused petitioner who is a neighbor of her, committed sexual
intercourse with her in her house at around 2 O'clock and fled. The
victim also told the informant that while committing the offence he was
pressing her mouth to prevent her from shouting and at the time of
occurrence she was alone at home.
[3] Based on the said FIR, Salema P.S. case No. 2020 SLM
012 under sections 448 and 376 IPC and section 4 of POCSO Act was
registered and the case was endorsed to Smt. Urmila Mitra, Women Sub
Inspector of Police for investigation.
[4] Anticipating arrest in the case, the accused petitioner
has approached this court for anticipatory bail.
[5] Heard Mr. S. Sarkar, learned senior advocate appearing
along with Mr. K.D. Singha, learned advocate for the petitioner. Also
heard Mr. R. Datta, learned P.P representing the State respondent.
[6] Mr. Sarkar, learned senior advocate has contended that
the investigation of the case is complete and charge sheet has also
been filed by the investigating agency. Therefore, the need of custodial
interrogation of the accused is over and no purpose of the investigation
will be served by keeping the accused in custody at this stage. Referring
to the charge sheet, Mr. Sarkar, learned senior advocate argues that
the investigating officer has quoted the observation of the medical
officer in the charge sheet and according to such medical report, there
was no sign of any recent vaginal penetration when the victim was
examined by the doctor. The doctor also found that her hymen was
intact and there was no injury mark on her private part. The doctor who
examined the victim did not also find any seminal stain or spermatozoa
of human origin in the genital part of the victim. According to Mr.
Sarkar, learned senior advocate this is a concocted and manufactured
case in which the accused has been falsely implicated. Learned senior
advocate, therefore, urges the court for releasing the petitioner on bail.
[7] Mr. R. Datta, learned P.P. vehemently opposes the bail
application. According to Mr. Datta, learned P.P, during the entire period
of investigation the accused was absconding. Police conducted several
raids in his house but he was not found anywhere in his locality. It is
further submitted by Mr. Datta, learned P.P that in a case where the
accused is found absconding, he shall not be entitled to the relief under
section 438 Cr.P.C. It is contended by learned P.P that a strong case
having been established against the accused petitioner, charge sheet
has been submitted against him. He has been shown absconder in the
charge sheet and non bailable arrest warrant is also pending for
execution against him. According to Mr. Datta, learned P.P in such
circumstances it would not be appropriate to release the accused on
anticipatory bail because by his conduct, the accused has made it clear
that during the trial of the case it would be difficult to procure his
attendance before the court. In support of his contention, Mr. Datta,
learned P.P has referred to the decision of the Apex Court in State of
Madhya Pradesh Vs. Pradeep Sharma reported in (2014) 2 SCC
171 wherein the Apex Court vide paragraph 16 of the judgment has
held as follows:
"16. Recently, in Lavesh vs. State (NCT of Delhi),
(2012) 8 SCC 730, this Court, (of which both of
us were parties) considered the scope of granting
relief under Section 438 vis-a-vis to a person who
was declared as an absconder or proclaimed
offender in terms of Section 82 of the Code. In
para 12, this Court held as under:
"12. From these materials and information, it is
clear that the present appellant was not available
for interrogation and investigation and was
declared as "absconder". Normally, when the
accused is "absconding" and declared as a
"proclaimed offender", there is no question of
granting anticipatory bail. We reiterate that when
a person against whom a warrant had been
issued and is absconding or concealing himself in
order to avoid execution of warrant and declared
as a proclaimed offender in terms of Section 82 of
the Code he is not entitled to the relief of
anticipatory bail."
It is clear from the above decision that if anyone
is declared as an absconder/proclaimed offender
in terms of Section 82 of the Code, he is not
entitled to the relief of anticipatory bail."
On the premises aforesaid Mr. Datta, learned P.P urges
the court for rejection of the bail application.
[8] Perused the case diary which has been produced before
this court by the prosecution. Perused all other materials available on
record and considered the submissions of learned counsel representing
the parties.
[9] As noted above, charge sheet has been filed in the case
and trial is likely to commence. Therefore, this court is of the view that
it would be appropriate to direct the petitioner to surrender before the
trial court granting him liberty to file bail application before the trial
court. The trial court after taking into consideration, the medical report
of the victim and all other surrounding facts and circumstances of the
case including the likelihood of his absconsion during the trial shall
decide such bail application on merit without being influence by this
order. Accused is directed to surrender before the trial court at
Kamalpur within a week from today failing which he will be arrested and
taken into custody.
In terms of the above,, the bail application stands
disposed of. Return the case diary to Mr. R. Datta, learned P.P.
Pending application(s), if any, shall also stand disposed
of.
JUDGE
Rudradeep
