BA3/11/2020
2021 Latest Caselaw 3220 UK

      IN THE HIGH COURT OF UTTARAKHAND
                 AT NAINITAL

           THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA



         THIRD BAIL APPLICATION NO. 11 of 2020


                    23rd AUGUST, 2021


Between:
Bhupendra Chand S/o Late Prem
Chandra R/o Phoolchaud, Isai Farm,
T.P. Nagar, Haldwani, P.S. Haldwani,
District Nainital.
                                                .......Applicant

and

State of Uttarakhand.                          ...Respondent


Counsel for the Applicant   :   Mr. Nandan Arya.

Counsel for the Respondent : Mr. Ranjan Ghildiyal,
                                learned A.G.A. assisted by
                                Mr. Dinesh Singh Chauhan,
                                learned Brief Holder for the
                                State.

Hon'ble Alok Kumar Verma,J.

The third bail application has been filed for grant of regular bail in connection with FIR No.389 of 2019, registered with Police Station-Haldwani, District Nainital for the offence under Sections 376(2)(f), 376(3), 506 of I.P.C. and Section 5(n)/6 of the Protection of Children from Sexual Offences Act, 2012.

2. The first bail application (Application No.2846 of 2019) was rejected by this Court vide order dated 19.03.2020 and the second bail application (Application

No.44 of 2020) was dismissed as withdrawn on 03.06.2020.

3. Facts, to the limited extent necessary, are that an F.I.R. was lodged by the mother of the victim on 06.10.2019 with the allegations that her husband (present applicant/accused) was working in D.S.C. He came to his house on leave. She has two daughters. Her elder daughter is 13 years old and younger daughter is two years old. She had been married with the applicant for 17 years. Her husband's behaviour was not good from the beginning, but she kept quiet. He would always call other women. He used to seduce her daughter for three years. When her daughter complained her, he used to say that she did not go to the police. She kept quiet for fear of slander. He used to tease her daughter's private parts. He committed sexual assault on her daughter. After investigation, charge-sheet has been filed against the applicant.

4. Heard Mr. Nandan Arya, learned counsel for the applicant and Mr. Ranjan Ghildiyal, learned A.G.A. assisted by Mr. Dinesh Singh Chauhan, learned Brief Holder for the State.

5. Mr. Nandan Arya, the learned counsel for the applicant, submitted that the applicant has been falsely implicated due to enmity between the informant, wife of the applicant, and the applicant regarding dowry, an application of the informant against the applicant is pending under Section 12 of the Protection of Women from Domestic Violence Act, 2005 before the concerned Magistrate; the prosecution case is not supported by the medical examination of the alleged victim; during the trial, the statements of the informant and the victim have been recorded; there are certain contradictions in their

evidence; the applicant has no criminal history and he is in judicial custody since 06.10.2019.

6. Mr. Ranjan Ghildiyal, the learned A.G.A. for the State opposed the bail application and submitted that during the course of the investigation, the statements of the mother of the victim and victim were recorded under Section 161 and 164 of the Code of Criminal Procedure and these two witnesses were examined as PW-1 and PW- 2 in the trial. The informant, the mother of the victim and the victim have supported the prosecution story; the victim, aged about 13-14 years, is daughter of the applicant and there is no reason to adduce false evidence by her against her father; the prosecution's case is supported by the medical examination of the victim, where it is clearly mentioned that the hymen of the victim was absent. The learned counsel for the State further submitted that there is no change in the circumstances after rejection of the first bail application; at the time of passing the order dated 19.03.2020 in the first bail application, the copies of the statement of the informant, PW-1 and the statement of the victim, PW-2 were on the record; therefore, the third bail application is not maintainable.

7. This Court on 19.03.2020 made following order:-

"6. In the case of State of U.P. vs. Amarmani Tripathi, (2005) 8 SCC 21, the Hon'ble Apex Court has held that it is well settled that the matters to be considered in an application for bail, are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence,

(ii) nature and gravity of charge, (iii) severity of the punishment in the event of conviction, (iv) danger of

the accused absconding or fleeing, if released on bail,

(v) character, behavior, means, position and standing of the accused, (vi) likelihood of the offence being repeated, (vii) reasonable apprehension of the witnesses being tampered with, and (viii) danger, of course, of justice being thwarted by grant of bail.

7. Therefore, while dealing with an application for bail, there is a need to indicate in the order, reasons for prima facie considering why bail is being granted particularly where an accused is charged of having committed a serious offence. Any order dehors reasons suffers from non-application of mind as observed by the Hon'ble Apex Court in Ram Govind Upadhyay Vs. Sudarshan Singh and others, (2002)3 SCC 598.

8. Therefore, it is quite clear that an order of bail cannot be granted in an arbitrary or fanciful manner. A ratio decidendi of the judgment of Hon'ble Apex Court in Anil Kumar Yadav Vs. State (N.C.T.) of Delhi and another, 2018(1) CCSC 117 is that in serious crimes, the mere fact that the accused is in custody for more than one year, may not be a relevant consideration to release the accused on bail.

9. According to the prosecution's case, the applicant, father of the victim, committed aggravated penetrative sexual assault on the victim repeatedly. The case of the prosecution is supported by the victim in her statements under Sections 161 and 164 of the Cr.P.C. and in the trial as PW2.

10. According to the statements of the victim, recorded under Sections 161 and 164 of the Cr.P.C., her date of birth is 01.03.2007. She used to study in Class VIII. She did not like her father at all. Her father was in the Army earlier, now he is retired and

works in D.S.C. Whenever he came home, she used to sleep in a separate room with the door closed. Her father came on leave and 5-6 days before her father came to her room at around 10:00 hour in night. He kissed her and put his finger and his private part in her private part. It had been going on for three years. Earlier, she screamed 6-7 times. He used to threaten her that if she told her mother anything, he would kill her. Her mother was silent due to threats and slander. Her mother had also witnessed this incident that day. In trial, the victim and her mother supported the prosecution case.

11. The Protection of Children from Sexual Offences Act, 2012 has been enacted to strengthen the legal provisions for the protection of children from sexual abuses and exploitations. Child abuse has serious physical and psycho - social consequences which adversely affect the health and overall well-being of a child. Aggravated penetrative sexual assault by father is most heinous offence causing enormous emotional and physical harm that can lost throughout child victim's lifetime.

12. From the perusal of the evidences, collected during investigation, and the statement of the victim recorded under Sections 161 and 164 of the Code of Criminal Procedure, 1973, it prima facie appears that the applicant was involved in this crime. No reason is found to falsely implicate the applicant. Therefore, without commenting on the merits of the case, there is no ground to release the accused-applicant involved in this heinous crime on bail. The bail application is rejected accordingly.

13. It is clarified that the observations made regarding the bail application is limited to the

decision, in the light of the facts, provided by the parties at this stage, as to whether the bail application should be allowed or not and the said observations shall not effect the trial of the case."

8. In State of Madhya Pradesh Vs. Kajad, (2001)7 SCC 673, the Hon'ble Supreme Court has held that it is true that successive bail applications are permissible under the changed circumstances. But without the change in the circumstances, the second bail application would be deemed to be seeking review of the earlier judgment which is not permissible under criminal law.

9. In State of Maharashtra Vs. Captain Buddhikota Subha Rao, AIR 1989 SC 2292, the Hon'ble Supreme Court has observed, ".....Once that application was rejected there was no question of granting a similar prayer. That is virtually overruling the earlier decision without there being a change in the fact-situation. And when we speak of change, we mean a substantial one which has a direct impact on the earlier decision and not merely cosmetic changes which are of little or no consequence. ......"

10. The applicant had opportunity to raise all his contentions on the previous occasion. The contention of the learned counsel for the applicant that the applicant is in custody since 06.10.2019 would not amount to change in the circumstances.

11. Therefore, it is not open to the applicant to make successive bail applications even on the grounds already rejected by this Court earlier.

12. On overall consideration of the application and also in the fact that any change in circumstances is not

established, after rejection of the first bail application on merit, I do not find any change in circumstances to entertain present third bail application. The third bail application does not deserve to be entertained. Consequently, the present third bail application is rejected.

__________________ ALOK KUMAR VERMA, J.

Dt: 23rd August, 2021 Neha