Tripura High Court

Shri Baidyaram Reang vs The State Of Tripura on 2 February, 2022

                           HIGH COURT OF TRIPURA
                                 AGARTALA

                                AB 6 of 2022

Shri Baidyaram Reang
                                                        ....... Petitioner(s)
                                  Versus

The State of Tripura
                                                       ........Respondent(s)

For Petitioner(s)      :     Mr. D. Datta, Adv.

For Respondent(s)      :     Mr. R. Datta, P.P.
                             Mr. S. Ghosh, Addl. PP.

               HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY
                                    Order

02/02/2022

[1]        Heard Mr. D. Datta, learned counsel appearing for the

petitioner. Also heard Mr. R. Datta, learned P.P. appearing along with Mr.

S. Ghosh, learned Addl. P.P. representing State respondent.

[2] This is an application under section 438, Cr.PC in connection

with Birganj PS case No.26 of 2021 registered under section 376D IPC

and section 6 POCSO Act, 2012 in which the accused petitioner is alleged

to have committed gang rape along with others on the victim who is

stated to be 15 years of age.

[3] Mother of the victim lodged an FIR after recovery of her

daughter in a senseless condition from a jungle nearby her home. It was

stated by the informant mother that her daughter went to a nearby pond

for catching frog. When she was not returning home, her mother went out

in search of her daughter and discovered her lying near a culvert at a

nearby place in senseless condition. She brought her daughter home and

came to know from her that six persons including the petitioner

committed gang rape on her and abandoned her in that condition.

[4] Based on the FIR of the mother of the victim, the case was

registered and investigation was taken up.

[5] It has been submitted by Mr. D. Datta, learned counsel

appearing for the petitioner that after investigation police has laid charge

sheet against the accused and now there is no purpose of detaining the

accused. Counsel has referred to the forensic report where the forensic

examiner has opined that the hymen of the victim was ruptured and

healed up suggesting the previous course of frequent sexual intercourse.

Counsel submits that accused will regularly appear before the trial court

to face the trial and therefore, he may be enlarged on bail.

[6] Mr. R. Datta, learned PP appearing along with Mr. S. Ghosh,

learned Addl. PP for the prosecution submits that the Special Judge before

whom the case is pending for trial has issued arrest warrant against the

accused to compel his appearance before the trial court because during

the entire investigation of the case accused was absconding. He never

came forward to cooperate with the investigation of the case. The State

counsel, therefore, submit that in such a situation the relief of pre-arrest

bail cannot be extended to the petitioner. To buttress their submission,

counsel have relied on the decision of the Apex Court in State of

Madhya Pradesh vs Pradeep Sharma reported in (2014) 2 SCC 171;

AIR 2014 SC 626 wherein the Apex Court has held that a person who is

declared absconder/proclaimed offender is not entitled to anticipatory

bail. Relevant extract of the judgment can be quoted as under:

"10. The only question for consideration in these appeals is whether the High Court is justified in granting anticipatory bail under Section 438 of the Code to the respondents-accused when the investigation is pending, particularly, when both the accused had been absconding all along and not cooperating with the investigation.

11. Ms. Vibha Datta Makhija, learned senior counsel for the appellant-State, by drawing our attention to the chargesheet, submitted that the charges filed against the respondents- accused relate to Sections 302, 120-B and Section 34 of the IPC which are all serious offences and also of the fact that both of them being absconders from the very date of the incident, the High Court is not justified in granting anticipatory bail that too without proper analysis and discussion.

12. On the other hand, Mr. Niraj Sharma, learned counsel for the respondents in both the appeals supported the order passed by the High Court and prayed for dismissal of the appeals filed by the State.

13. We have carefully perused the relevant materials and considered the rival contentions.

14. In order to answer the above question, it is desirable to refer Section 438 of the Code which reads as under:

"438. Direction for grant of bail to person apprehending arrest.--(1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that court may, after taking into consideration, inter alia, the following factors, namely--

(i) the nature and gravity of the accusation;

(ii) the antecedents of the applicant including the fact as to whether he 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; and

(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail:

Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application." The above provision makes it clear that the power exercisable under Section 438 of the Code is somewhat extraordinary in character and it is to be exercised only in exceptional cases where it appears that the person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse his liberty.

15. In Adri Dharan Das vs. State of W.B., (2005) 4 SCC 303, this Court considered the scope of Section 438 of the Code as under:-

"16. Section 438 is a procedural provision which is concerned with the personal liberty of an individual who is entitled to plead innocence, since he is not on the date of application for exercise of power under Section 438 of the Code convicted for the offence in respect of which he seeks bail. The applicant must show that he has "reason to believe" that he may be arrested in a non-bailable offence. Use of the expression "reason to believe" shows that the belief that the applicant may be arrested must be founded on reasonable grounds. Mere "fear" is not "belief" for which reason it is not enough for the applicant to show that he has some sort of vague apprehension that someone is going to make an accusation against him in pursuance of which he may be arrested. Grounds on which the belief of the applicant is based that he may be arrested in non bailable offence must be capable of being examined. If an application is made to the High Court or the Court of Session, it is for the court concerned to decide whether a case has been made out for granting of the relief sought. The provisions cannot be invoked after arrest of the accused. A blanket order should not be generally passed. It flows from the very language of the section which requires the applicant to show that he has reason to believe that he may be arrested. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant's apprehension that he may be arrested is genuine. Normally a direction should not issue to the effect that the applicant shall be released on bail "whenever arrested for whichever offence whatsoever". Such "blanket order" should not be passed as it would serve as a blanket to cover or protect any and every kind of allegedly unlawful activity. An order under Section 438 is a device to secure the individual's liberty, it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations likely or unlikely. On the

facts of the case, considered in the background of the legal position set out above, this does not prima facie appear to be a case where any order in terms of Section 438 of the Code can be passed."

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-à-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.

[7] It is contended by learned counsel appearing for the State that

the victim is less than 15 years of age. The whole circumstances would

demonstrate that she was brutally raped by the persons including the

present petitioner and the present petitioner also managed to be out of

the reach of the investigating agency during the whole investigation of

the case. Counsel, therefore, submits that there is every possibility of his

fleeing away from the place of justice if pre arrest bail is granted to him.

[8] Perused the entire record and considered the submissions

made at the Bar.

[9] The facts and circumstances of the case have made out a

strong prima facie case against the petitioner. There are adequate prima

facie materials in support of the charges brought against him. Likelihood