Malkhan Singh vs State of Haryana

S.S. Sudhalkar, J.

The abovementioned crl. misc. petitions were heard together and are being disposed of by this common judgment. The private respondents in these cases, viz. Sat Ram son of Shamal and Dalle alias Dalbir son of Sheesh Ram are accused in connection with F.I.R. No. 281 dated 6.11.1996, registered at Police Station Chhainsa, District Faridabad, for the offences under Sections 376 and 506 of the Indian Penal Code. They were granted bail by different orders by the learned Sessions Judge, Faridabad. Hence, the father of the prosecutrix has filed this petition for cancellation of bail.

I have heard Mr. Anil Walia, the learned counsel for the petitioner, Mr. Sanjiv Sheoran, Advocate, for the State and Mr. Tribhuvan Dahiya, learned counsel for the private respondents.

The case of the prosecution in brief, as stated in the complaint, can be reproduced as under :

"Statement of Maheshwati D/o Malkhan Singh, caste Gujjar, r/o Mandhawali, aged 14 years stated that on 2.11.1996 at about 7.00 p.m. at night I went for call of nature to agriculture field and when I reached the field which is near the house of Hari Singh, all of a sudden three boys out of which Sat Ram s/o Shamal, Dalle s/o Sheesh Ram, caste Gujjar Sakana Deh whom I know and third one is known by face who is of young age, his name is not known was wearing pant and shirt came and caught hold of me. They all inserted my duppatta forcibly into my mouth and they put a belt around my neck and took me to the field of maize belonging to my uncle Khazan and there all of three forcibly removed my salwar, first Sat Ram then Dalle and in the last third one raped me. I could not make hue and cry because of cloth in my mouth. All they ran away leaving me in the field of maize after committing rape on me. They threatened me to kill my brother in case I disclose the incident to anybody. I have only one brother and four sisters; so I got afraid; so I did not disclose the incident but my mother Kamlesh had seen the blood on my salwar and enquired from me but I kept mum and watched my clothes. When all these three persons pressed my mouth, I got teeth injury on my left side of tongue. Due to this I could not take meal properly. My mother and my maternal aunt Sheela enquired from me so I disclosed the whole incident to them today and accompanied with maternal aunt Sheela, came to lodge the report. Statement heard, it is correct.

Sd/

Maheshwati"

The learned counsel for the petitioner has vehemently argued that the private respondents ought not to have been granted bail, and, therefore, bail granted to them be cancelled. The case that is obvious from the F.I.R. is that the prosecutrix was forcibly taken to the fields of maize belonging to her uncle by the accused and that they put her duppatta forcibly into her mouth to keep her mouth shut and tied a belt around her neck and committed rape on her. The reasons stated in the application for cancellation of bail are that :

(1) there is a prima facie evidence to show that the private respondents raped a minor girl of 14 years of age.

(2) One of the coaccused is still to be arrested.

(3) It is a case of gang rape.

(4) The first bail application was dismissed as withdrawn.

(5) Another bail application was also dismissed as withdrawn.

It may be seen that in the bail application of respondent Sat Ram, the learned Sessions Judge has incorporated the arguments of both the sides and observed that after hearing the submissions of both the sides and going through the record, he allowed the bail application considering the submissions of learned counsel for the applicant (private respondent) and particularly in view of the delay in lodging the F.I.R. and discrepancy in age of the prosecutrix in various documents. The medicolegal report for age verification shows that the prosecutrix was 161/2 years of age.

So far as accused Dalle is concerned, the learned Sessions Judge has observed that he is entitled to the concession of bail on the same grounds on which the accused Sat Ram was granted bail inasmuch as the age of the prosecutrix is discrepant as per various documents and that it would be seen at the time of trial as to whether the prosecutrix was minor at the time of occurrence or not, but all the facts and circumstances pointed out by the learned counsel for the accused went to establish that it was a fit case for granting the concession of bail.

The learned counsel for the petitioner contended that the grounds on which the bail has been granted are cryptic and illusory. He has shown from the certificate obtained from the Headmistress of the Government Middle School Mandhawali, Faridabad, that the date of birth of the prosecutrix is 10.2.1982. The incident had taken place on 2.11.1996. Therefore, on the date of the occurrence, the age of the prosecutrix was less than 15 years. Moreover, he has relied on the copy of the medicolegal report of the prosecutrix, produced by him which shows that there were two abrasions around her neck encircling the front about 6" x 1", over the back of neck near the hairline. On left side an abrasion partially healed could be seen. There were lacerations on both sides of tongue. However, it is also mentioned in the medicolegal report that vulva was slightly swollen and there was no external mark of injury or scratches over the thigh. There was no bleeding or discharge from vagina and pubic hair were not matted. The hymen was found absent. However, there were no signs of fresh laceration and her vagina could admit one finger easily. It is further mentioned in the medicolegal report that cervix was healthy and there was no bleeding or discharge. The sample of vaginal swab was taken, sealed and handed over to police. The underwear was washed. It was sealed and handed over to police. As per observations of the doctor, possibility of rape could not be ruled out. The age of the prosecutrix is mentioned as 14 years. In the complaint, it is stated by the prosecutrix that the accused threatened her to kill her brother in case she disclosed this incident to anybody. She further stated in the complaint that she has only one brother and four sisters, therefore, she got afraid and did not disclose the incident. The incident is of 2.11.1996 whereas the complaint is given on 6.11.1996.

The learned counsel for the private respondents/accused has argued that granting of bail and cancelling of bail are two different things and considerations in both the cases are different.

The learned counsel for the petitioner has cited before me the case of Jit Singh v. Labh Singh, 1995(3) R.C.R. 473 . In that case, this Court had cancelled the bail after about 21/2 years as it was not validly granted and it was observed that orders which were palpably wrong could not be accepted with the passage of time. He has also cited before me the case of Davender Saroha v. State of Haryana, 1994(2) R.C.R. 701 . This Court in the said case observed that bail in murder case granted by Additional Sessions Judge could be cancelled by the High Court where the lower court had failed to exercise its discretion according to law or where accused misused his liberty by indulging in criminal activity, interfered with course of investigation, attempted to tamper with the evidence of witnesses, threatened the witnesses, where there was likelihood of his fleeing to another country, attempted to make himself scarce by going underground and attempted to place himself beyond the reach of the surety. It is also held therein that where the State did not file any appeal for cancellation of bail, complainant has locus standi to file an appeal for cancellation of bail.

The learned counsel for the petitioner has also cited before me the case of Chandan Singh v. Yashvinder Chauhan, 1994(1) R.C.R. 458 . In that case, the Delhi High Court after considering the facts of that case found it a case for cancellation of bail and ordered its cancellation. It was, however, observed therein that it would be open to the respondent to move a fresh application for bail after the statements of material witnesses were recorded. In that case, it was held that when the accused has been enlarged on bail, his liberty could not be lightly interfered with, but this does not mean that even in a proper case where ends of justice would be defeated unless the accused is committed to custody, power of the High Court to cancel the bail could not be exercised. The deceased in the aforesaid case was seen in the company of accused few hours before death and that weapon of offence was recovered at the instance of accused. Therefore, it was fit and proper case to cancel the bail. It was further observed in that case that principles which flow from decisions of Courts in matters of grant or cancellation of bail could not be put in a straitjacket and the facts of each case would govern the matter.

The learned counsel for the petitioner has further cited before me the case of Aslam Babalal Desai v. State of Maharashtra, A.I.R. 1993 S.C. 1. The Supreme Court in that case has held that once an accused has been released on bail, his liberty could not be lightly interfered with. It was a case in which bail was granted because of nonsubmission of the chargesheet within the stipulated period and then it was sought to be cancelled. It was also held by the Supreme Court in that case that once the order of release has been passed by fiction of law under Section 437(1) or (2) or 439(1) of the Code of Criminal Procedure (for short `Cr.P.C.''), it follows as a natural consequence that the said order could be cancelled under subsection (5) of Section 437 or subsection (2) of Section 439 Cr.P.C. (on considerations relevant for cancellation of an order thereunder). It was also held therein that the grounds for cancellation of bail under Sections 437(5) and 439(2) of the Cr.P.C. are identical, viz. bail granted under Section 437(1) or (2) or 439(1) Cr.P.C. could be cancelled where (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation, (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (vii) attempts to place himself beyond the reach of his surety, etc. It was further observed in that case that these grounds were illustrative and not exhaustive. It must also be remembered that rejection of bail stands on one footing but cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence it must not be lightly resorted to.

Similarly, it was also held by the Supreme Court in the case of Dolat Ram and others v. State of Haryana, (1995) 1 S.C.C. 349, that it was a case of dowry death where the High Court while cancelling the bail observed as under :

"Dowry death is a serious matter and cannot be taken so lightly. No positive finding has been recorded by the Additional Sessions Judge in his order to the effect that the respondents and the deceased were living separately. No prima facie case is made out which could justify the grant of anticipatory bail. To my view of thinking, concession of anticipatory bail granted by the Additional Sessions Judge was totally uncalled for. The order dated 12.11.1993 is, therefore, set aside and the respondents are directed to be taken into custody."

The Supreme Court further held in that case that it appeared that this Court overlooked the distinction of the factors relevant for rejecting bail in a nonbailable case in the first instance and the cancellation of bail already granted. It was also held therein that bail once granted could not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial.

In view of the abovementioned principles laid down by the Supreme Court and the High Courts, the question of cancellation of bail will have to be decided. It will be pertinent to mention here that the grounds incorporated by the Supreme Court (though not exhaustive) are not incorporated in these petitions. No doubt, at this stage, it cannot be said that rape could not have taken place as alleged. Different considerations could have been there had there been the question before me for granting or rejecting the bail, but for the bail to be cancelled, the facts alleged against the private respondents do not make out a case for cancellation.

In the case of Aslam Babalal Desai (supra) the Supreme Court had also observed that even if two views are possible, release under proviso (a) to Section 167(2) Cr.P.C. being a matter belonging to the field of criminal justice involving the liberty of an individual, the provision must be construed strictly to freedom of an individual.

Considering all these facts, I find that it will not be prudent to cancel the bail granted to the accused.

As a result, these petitions are dismissed.

Petitions dismissed.