Chawli vs State of Haryana

Dr. Sarojeni Sakesna, J.

The petitionercomplainant/prosecutrix Smt. Chawla has filed this petition under Section 439(2) of the Code of Criminal Procedure praying for cancellation of bail granted to respondent Nos. 2 to 5 in connection with F.I.R. No. 560 dated 17.9.1997 registered under Section 376/342/34 I.P.C. at Police Station Sadar, Sirsa. The petitioner''s contention is that as per the First Information Report dated 17.9.1997 on the night of 10.9.1997 she was taken away on Scooter by the accused respondents Phula Ram and Pawan. She was taken to cotton field where the remaining accused respondent Bansi and Trilok were also present alongwith the bed sheet. In the field all the accused persons took wine and made her also to drink forcibly. Thereafter, she was raped by all the four accused persons one by one. At about 3 A.M. her shrieks were heard by Girdhari who came running. On seeing Girdhari the accused person ran away. Then she was brought back by Girdhari. Next day she went to her parent house. Her husband came back on 13.9.1997 as he left the village on 9.9.1997 to Gugameri fair. Both of them came back to their village on 14.9.1997. Panchayat was convened but as no settlement could be arrived at she lodged the report on 17.9.1997.

The petitioner''s counsel contends that on these facts the said offences were registered against respondent Nos. 2 to 5. When the matter was under investigation, these accused person filed bail applications which were considered by Shri G.L. Goyal, Additional Sessions Judge, Sirsa, while deciding Bail Application No. 379 of 1997 Phula Ram v. State of Haryana Vide detailed order dated 19.19.1997, the Additional Sessions Judge, Sirsa allowed all the applications and granted anticipatory bail to all the accused persons.

The counsel also submitted that thereafter investigation was completed and charge sheet was filed on 28.10.1997 in the Court of Additional Chief Judicial Magistrate, Sirsa. The case was committed by that Court on 15.11.1997. Now, the trial is pending in the Court of Shri Ramendra Jain, Additional Sessions Judge, Sirsa. He has framed charge against all the accused person under Section 376 read with Section 34 of the Indian Penal Code on 28.11.1997. He submitted that considering the seriousness of the charge, the learned Additional Sessions Judge should not have granted anticipatory bail to these accused persons. The learned Additional Sessions Judge should have taken into consideration the traumatic condition of the prosecutrix under which she was placed by these accused persons when she was ravished by all of them. He also explained that so far as the delay is concerned even in the FIR, it is properly explained. In such like cases the delay should not be the relevant factor because women think many a times before lodging such a report as their own honour and prestige is at stake. A question mark is put to the honour of the whole of the family. Hence, according to him the order of anticipatory bail granted in favour of the respondents be cancelled.

Learned counsel appearing for respondent Nos. 2 to 5 relying upon Suresh v. Satyawan, 1998(1) RCR 74 ; Daljit Kaur v. Jasbir Singh, 1995(3) RCR 487 and Ajaib Singh v. Bimla Devi, 1996(3) RCR 180 contended that no doubt from the F.I.R it appears to be case of gang rape but considering the age of the prosecutrix, the circumstances of the alleged incident and the delay, the Additional Sessions Judge has rightly enlarged the respondents on anticipatory bail. They have not misused the concession of bail. There is no allegation that they are not appearing before the Sessions Court or are trying to tamper with the evidence or are trying to influence the witnesses. Hence, there is no rhyme or reason to cancel the bail.

After hearing the rival contentions of both the parties, I am of the considered view that the petition deserves to be allowed. No doubt there are different considerations for grant of bail and for cancellation of bail. Unless very plausible and cogent reasons are/assigned for cancellation of bail, the bail should not be cancelled. The facts of each case are required to be considered while granting bail or while cancelling bail.

The power of anticipatory bail has to be exercised sparingly and in exceptional cases. Although the power appears to be unguided, it is in fact required to be exercised subject to limitations incorporation in Section 437 of the Cr.P.C. The petitioner must make out a special case for getting anticipatory bail. When power under Section 438 is exercised on irrelevant considerations not germane to the determination of the application, Superior Court has to interfere in order to avoid miscarriage of justice. While granting anticipatory bail the Court must strike a balance so that individuals may be protected from unnecessary humildation and the faith of the public in the administration of justice is not spoken.

In this case serious allegation of gang rape were made against the accused persons but Additional Sessions Judge granted anticipatory bail even though investigation was in progress, hence bail is liable to be cancelled.

Recently, in State of Maharashtra v. Ramesh Taurani, 1998(1) RCR(Crl.) 226 : JT 1997(9) SC 304, the Apex Court has observed :

"........It is trite that among other considerations which the Court has to take into account in deciding whether bail should be granted in a non bailable offence is the nature and gravity of the offence. We are, therefore, of the opinion that the High Court should not have granted bail to the respondent considering the seriousness of the allegations levelled against him, particularly at a stage when investigation is continuing."

The Apex Court also held that the High Court erred in granting bail to the respondent in a case of criminal conspiracy/murder. There were serious charges of payment of Rs. 25 lacs to the contract killer. Therefore, the High Court to could not have given bail in this nonbailable case at a stage where the investigation continues.

In Salauddin Abdulsamad Shaikh v. State of Maharashtra, 1996 Crl. L.J. 1368, the Apex court has observed :

" Anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration the Court granting anticipatory bail should leave it to the regular Court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the chargesheet is submitted. An order of anticipatory bail could even be obtained in cases of serious nature as for example murder and, therefore, it is essential that the duration of that order should be limited and ordinarily the court granting anticipatory bail should not substitute itself for the original Court which is expected to deal with the offence. It is that Court which has then to consider whether, having regard to the material placed before it, the accused person is entitled to bail."

As is apparent from the facts stated above, Shri G.L. Goyal, Additional Sessions Judge, Sirsa, allowed/anticipatory bail application of all the respondents No. 2 to 5 vide his order dated 19.9.1997. At that stage, the investigation was going on. He has not fixed any time limit for which the concession of anticipatory bail was given to the accused respondents. Thus he has assumed the role of the trial court without having an opportunity of looking into the evidence collected in the investigation in this case. In such like matters, delay can be there which can be explained also. The prosecutrix in the case has explained the delay. It is a case of gangrape which is a serious offence and therefore, the Parliament in its wisdom has added this type of offence vide amendment (No. 43 in the year 1983) in the Indian Penal Code. Thus it is obvious that gangrape is an offence which is class by itself. It cannot be equated with other offences of rape.

After completing the investigation, the challan was presented before the Additional Chief Judicial Magistrate, Sirsa on 28.11.1997. The case was committed by him to the Court of session on 15.11.1997. The Sessions case is now in the court of Shri Ramendra Jain, Additional Sessions Judge, Sirsa. He has framed charge against all the accused person on 28.11.1997. Thus it is apparent that he is in a better position to consider all the evidence collected during investigation against the accusedrespondents and then to decide whether they should be enlarged on bail or not.

Considering all the above facts and the directions given by the Apex Court in Salauddin''s case (supra) this petition is allowed. The bail granted to respondent Nos. 2 to 5 vide impugned order dated 19.9.1997 is hereby cancelled. The accused respondents are hereby directed to surrender before Shri Ramendra Jain, Addl. Sessions Judge, Sirsa on 28.1.1998. Thereafter, if they so choose, they may file application for regular bail before the trial court, without being influenced by the observations made herein above, the trial Court shall decide the application on merits taking into consideration the evidence collected during investigation in this case.

Before parting with the order, I would like to mention that the trial Court has fallen into grave error in framing charge against the accused persons under Section 376 read with Section 34 I.P.C. It appears that he has not gone through the amended provisions of Section 376(2)(g) Explanation (i). In view of this amendment, the charge should have been framed under section 376(2)(g) I.P.C. against all the accused persons.

A copy of the order be conveyed to the trial Court forthwith.