Hannu Singh vs Raju @ Rajesh and anr.

Harmohinder Kaur Sandhu, J.

The present petition under Section 439(2) of the Code Criminal Procedure has been filed by Hannu Singh father of the prosecutrix for cancellation of bail granted to Raju alias Rajesh respondent by the Sessions Judge, Gurgaon vide his order dated 2571992 in FIR No. 192 dated 2861992 under Section 354/376/511 of the Indian Penal Code registered at the Police Station Nuh District Gurgaon.

The case was registered against Raju respondent on the statement of Phoolwati who deposed that she was present at her house on 2861992 when she sent her daughter Urmila aged 8 years to the house of Jand Raj son of Chander Rajput at about 8/9 a.m. to bring some articles. After 1520 minutes her daughter returned. She was crying and she disclosed that Raju had taken her to the T.V. room and tried to commit rape. The incident was narrated to Hannu Singh father of the child as well as to the panchayat and then the case was got registered.

The petitioner alleged that the respondent was arrested on 371992 and was remanded to judicial lock up. He moved a petition for his bail which was pending for hearing in the Court of Additional Sessions Judge, Gurgaon when it was withdrawn on 2071992. On 2471992 a fresh bail application was filed and the respondent was ordered to be released on bail on 2571992. After his release the respondent was threatening the complainant and his other family members and was intimidating them to withdraw the case. Matter was reported to the police and an entry in the Daily Diary Register, copy of which was Annexure P6 was made. The respondent was misusing the concession of bail.

The petition was resisted by respondent No. 1 namely Raju who in his reply maintained that a false case was registered against him after inordinate delay. His medicolegal examination did not reveal any injury and Medico Legal Report of Urmila also did not show any injury on her private parts except superficial abrasion. The hymen was found intact and no offence under Section 376/511 of the Indian Penal Code was made out. Learned Sessions Judge after taking into consideration different important aspects of the matter including nonavailability of the report from the Forensic Science Laboratory, allowed him bail and the discretion vested in him was exercised in a judicial manner. His earlier bail application was dismissed as withdrawn and there was no bar to move a fresh bail application. He further alleged that he was a B.A. B.Ed and was preparing for his M.A. examination. He was a Mathematics teacher in Jat High School, Sonepat where he was also Warden of a Hostel. He was never involved in any criminal case earlier and this case was got registered against him due to family enmity. He never threatened the complainant nor asked her to withdraw the case. He was not present in the village on 1381992 when it was alleged that he threatened the complainant.

Respondent No. 2 in his reply did not deny the averments made in the petition.

I have heard the counsel for the parties.

The learned counsel for the petitioner argued that the age of the prosecutrix in the case was only 8/9 years and the petitioner was charged with a heinous crime. His earlier bail application wa dismissed but after three days he moved another application which was allowed by the Sessions Judge.The Sessions Judge ignored the gravity of the offence and exercised the discretion vested in him in a most improper (sic). The respondent was a school teacher who was fully aware of the consequence of his act and he should not have been granted concession of bail.

The learned counsel for the respondent on the other hand contended that the impugned order was passed after taking in to consideration all the circumstances of the case. The learned Sessions Judge was quite aware of the gravity of the offence and observed in his order that the bail in such like cases is to be granted with restraint but keeping in view the peculiar circumstances of the case and also the fact that report from Forensic Science Laboratory was not likely to be received within a short time nor the case was to be disposed of promptly allowed bail to the respondent and there were no circumstances justifying the cancellation of bail. The Daily Diary Report copy of which was Annexure P6 was recorded at the instance of a person who was neither the complainant nor a witness in the case. The incident relating to the threat issued by respondent No. 1 to the complainant and other members of her family was alleged to have taken place on 2381992 but the respondent placed on record his own affidavit and that of Kumari Nirmal Principal, Rali Ram Memorial Senior Secondary School, to show that on 2381992 he was present in the school of Sonepat.

It is correct that age of the prosecutrix is alleged to be 8/9 years and the respondents is prime facie charged for an offence under Section 376/511 of the Indian Penal Code yet this alone is no ground for concelation of bail. The basic rule may (sic) tersely put a bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice. The respondent was released on bail about a year earlier and there is nothing to suggest that he had misused the concession of bail and had abused the trust placed in him by the Court. Neither the complainant nor any witness filed affidavit to show that the respondent ever threatened them not to appear in Court or to withdraw the case. Discretion of Trial Court allowing bail to an accused person is not lightly to be interfered with. Bhagirth singh v. The state of Gujarat 1984(2) CLR 181 is an authority on this point. Power to refuse or grant bail is not to be exercised by way of punishment.In this case the respondent never absented himself from court and he was readily available. He has also not misused the concession of bail by tampering with evidence,and in the face of the affidavits filed by him the averments made in the Daily Diary Report by some third person do not carry much weight. Since the respondent never interfered with the course of justice there is no ground for cancellation of bail allowed to him. The petition is without merit and the same is hereby dismissed.