Smt. Anita Das On Behalf Of Accd. ... vs The State Of Tripura
2022 Latest Caselaw 224 Tri

                          HIGH COURT OF TRIPURA
                                AGARTALA
                            B.A. No. 06 of 2022

Smt. Anita Das on behalf of accd. Sri Mithan Das
Wife of Lt. Ranmeahan Das @ Rang Mohan Das, M/O. Sri
Mithan Das, R/O. Bahampur, Amarpur, P.O- Bhampur,
P.S- Birganj, Dist- Amarpur, Gomati Tripura.
                                                   ............... Petitioner(s).
                                    Vs.

THE STATE OF TRIPURA
Represented by Ld. PP High Court Tripura.
                                                  ............... Respondent(s).

For Petitioner(s)     :     Ms. Sarama Deb, Advocate.

For Respondent(s)     :     Mr. S. Debnath, Addl. Public Prosecutor.

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

23/02/2022

Heard Ms. Sarama Deb, learned counsel appearing for the

petitioner as well as Mr. S. Debnath, learned Addl. Public Prosecutor

representing the State.

[2] Petitioner is an accused in Teliamura P.S Case No. 2021/TLM/

127 which has been registered for commission of offence punishable

under Sections 365 and 376 of the Indian Penal code. He has been

undergoing imprisonment since his arrest on 23.10.2021.

[3] The factual background of the case is as under:

Mother of the victim lodged a written FIR with the Officer-in-

Charge of Teliamura Police station on 23.10.2021 alleging, inter alia, that

her 18 years old married daughter (victim) came home from her in laws'

house few days before the last Durga Puja. On 23rd September, 2021 at

about 4.30 'O' clock in the afternoon, she alone went to the nearby

market for buying some clothes for her. At that time, the accused

appeared before her on his motor bike and forcibly lifted her from there

to his home at Amarpur. There he detained her in his house and

repeatedly committed sexual intercourse on her for about 8(eight) days.

Thereafter, as stated in the FIR, the accused left the victim daughter of

the informant near her home. It was also stated by the first informant in

her FIR that due to fear of the petitioner she could not lodge the FIR in

time.

[4] Based on her FIR, the case was registered and investigation of

the case was taken up by police.

[5] It is contended by learned counsel appearing for the petitioner

that the prosecution story is not at all believable because had the victim

really been kidnapped by the accused, she would have raised alarm when

she was being taken away by the accused from Udaipur to Amarpur.

Rather she travelled this long way on his motor bike silently without any

kind of resistance. Such conduct of her does not stand to reason. Counsel

contends that it is no case of the prosecution that accused was armed

with weapons or he was accompanied by his associates. Admittedly, he

was alone. Counsel submits that, in these circumstances it is quite

unbelievable that a woman of her age would be lifted from the market

from in front of a crowd and that too in broad day light. Counsel further

contends that the FIR was lodged after about a month from the date of

the alleged occurrence and moreover the victim never lodged any

complaint against the accused. It was lodged by her mother. Counsel

submits that it was a consented relationship between the parties who was

known to each other from before the occurrence. It is also contended by

Ms. Deb, learned counsel that investigation is complete and charge sheet

has been laid before the trial Court. Counsel submits that since it was a

consented relationship and victim was at her consenting age, accused

cannot be charged with the offence of rape punishable under Section 376

IPC and therefore, his detention is not justifiable. In support of her

contention learned counsel has relied on the decision of the Apex Court

in the case of Uday Vrs. State of Karnataka; reported in (2003) 4

SCC 46. Counsel has also relied on the decision of the Hon'ble Apex Court

in Ms. X Vrs. State of Telangana and another; reported in(2018) 16

SCC 511.

[6] Mr. S. Debnath, learned Addl. Public Prosecutor vehemently

opposes the bail application on the ground that during investigation of the

case, the victim made statement before the Investigating Officer under

Section 161 Cr. P.C. She also made statement before the jurisdictional

Judicial Magistrate under Section 164(5) Cr.P.C and in both of her

statements she supported the prosecution case wherein she categorically

stated that she had no consent to the alleged sexual intercourse and the

accused committed repeated sexual intercourse on her by detaining her in

his house at Amarpur. Counsel further submits that the victim also stated

to the Investigating Officer that since the accused was known to her from

prior to the occurrence, she accompanied him to his house when he made

such request to her after meeting her at Teliamura market. Counsel

submits that there is every likelihood of the witnesses being influenced by

the petitioner if he is released on bail at this stage. Counsel, therefore,

urges the Court to reject the bail application.

[7] Perused the record. Considered the submissions of the learned

counsel appearing for the parties. It is true that the FIR was filed after

about a month of the date of occurrence. However, the mother in his

explanation about the delay in lodging the FIR has categorically stated

that out of fear she could not lodge the FIR in time. It would not be

appropriate to give a detailed account of the materials available against

the accused at this stage because it may prejudice the defence during

trial. But it is evident from the materials available before this Court that

the victim in her police statement recorded under Section 161 Cr. P.C as

well as in her statement recorded under Section 164(5) Cr.P.C by the

jurisdictional Judicial Magistrate has categorically stated that initially

when the accused met her at Teliamura market after a long gap of time,

he requested her to accompany him to his home and since he was not

unknown to her, she in good faith accompanied him to his home. Soon

after she arrived at his home, he detained her and committed rape on her

against her consent. The woman is only 19 years of age. The judgments

relied on by learned counsel appearing for the petitioner have dealt with

completely different issues in a different context. The question before the

Hon'ble Apex Court in the case of Uday(supra) was whether consent

obtained by fraud and deception in as much as the appellant induced the

victim to consent on the promise of marriage could be treated as consent.

Facts and circumstances being completely distinguishable, petitioner

cannot derive any benefit from the said decision. I have also gone

through the law laid down by the Apex Court in the case of Ms. X Vrs.

State of Telangana (supra) which has also been relied upon by the

petitioner's counsel, wherein the Apex Court has held as under:

"11. While the principles in regard to the grant of bail under Section 439 are well settled, we may note for the completeness of the record, that reliance has been placed on behalf of the appellant on the decisions of this Court in Kanwar Singh v State of Rajasthan1, Neeru Yadav v State of UP and State of Bihar v Rajballav Prasad. In Kanwar Singh, a Bench of two learned Judges of this Court has held thus:

"Section 439 of the Code confers very wide powers on the High Court and the Court of Sessions 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."

In Neeru Yadav, applying the same principle, this Court held that:

"It is a well-settled principle of law that while dealing with an application for grant of bail, it is the duty of the Court to take into consideration certain factors and they basically are: (i) the nature of accusation and the severity of punishment in cases 2012 (12() SCC 180 2016(15) SCC 422 2017(2)SCC 178 of

conviction and the nature of supporting evidence,

(ii) reasonable apprehension of tampering with the witnesses for apprehension of threat to the complainant, and (iii) prima facie satisfaction of the Court in support of the charge."

The decision in Rajballav Prasad emphasises that while the liberty of the subject is an important consideration, the public interest in the proper administration of criminal justice is equally important:

"...undoubtedly the courts have to adopt a liberal approach while considering bail applications of accused persons. However, in a given case, if it is found that there is a possibility of interdicting fair trial by the accused if released on bail, this public interest of fair trial would outweigh the personal interest of the accused while undertaking the task of balancing the liberty of the accused on the one hand and interest of the society to have a fair trial on the other hand. When the witnesses are not able to depose correctly in the court of law, it results in low rate of conviction and many times even hardened criminals escape the conviction. It shakes public confidence in the criminal justice delivery system. It is this need for larger public interest to ensure that criminal justice delivery system works efficiently, smoothly and in a fair manner that has to be given prime importance in such situations."

[8] In the instant case, the record demonstrates that the petitioner

is well known to the victim as well as the members of her family who are

the witnesses of this case. Therefore, it is quite likely that the petitioner,

if released on bail, may influence the witnesses. Charge sheet has been

laid and case is awaiting trial. Thus, a good prima facie case of a serious

crime has been made out against the petitioner. As stated, possibility of

his influencing the witnesses in case of his release on bail cannot be ruled

out. Undisputedly, nature of the allegation is serious for which severe

punishment has been prescribed.

[9] Keeping in mind principles laid down by the Apex Court in Ms.

X Vrs. State of Telangana (supra) with regard to grant of bail under

Section 439 Cr.P.C and taking into consideration all other relevant

aspects discussed hereinabove, this court is of the view that the petitioner

does not deserve bail. His bail application stands rejected. Trial court is

directed to expedite the trial of the case against him.

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

JUDGE

Dipankar