Raghuveer Das vs State Of Uttarakhand

Alok Kumar Verma, J

This second bail application has been filed for grant of regular bail in connection with FIR No.33 of 2019, registered with Police Station Dharasu, District Uttarkashi for the offence under Sections 323, 377 of I.P.C. and Section 5(l)6 of the Protection of Children from Sexual Offences Act, 2012. The first bail application was rejected by this Court vide order dated 15.07.2020.

Facts, to the limited extent necessary, are that on 02.07.2019, an FIR was registered against the present applicant on the basis of a written report lodged by the informant Suresh Panwar, member of the Child Welfare Committee, Uttarkashi, alleging in it that the victim, male child, aged about 14 years, stated before the Committee that the present applicant took him on the pretext of Char Dham Yatra and after sometime the applicant started carnal intercourse against the order of nature with the victim and when the victim resisted, the applicant beat him brutally. The victim was found by one Bhar Singh Panwar on the banks of the river in the evening of 2.07.2019. The victim was medically examined. During investigation, the statements of the victim were recorded under Sections 161 and 164 of the Code of Criminal Procedure, 1973. After completion of the investigation, the charge sheet has been submitted.

Heard Mr. Gaurav Kumar, learned counsel holding brief of Mr. Himanshu Pal, learned counsel for the applicant and Mr. Ranjan Ghilidyal, learned A.G.A. for the State.

Mr. Gaurav Kumar, the learned counsel appearing for the applicant, submitted that the F.I.R. does not show any specific date and time of the alleged incident; seven witnesses have been examined by the learned trial court; there are contractions in the statements of these witnesses as well as in the statements of the victim, recorded under Sections 161 and 164 of the Code of Criminal Procedure, 1973; clothes of the victim were not sent to the Forensic Science Laboratory for forensic examination; the applicant is a saint; he has not committed the alleged crime and he is in judicial custody since 03.07.2019.

On the other hand, Mr. Ranjan Ghildiyal, the learned A.G.A., opposed the bail application and submitted that the second bail application is not maintainable.

This Court on 15.07.2020 made the following order:

"6. During investigation, it was found that the applicant was Guru of victim's father. The victim was student of class Xth. The applicant took him on the pretext of Char Dham Yatra and had unnatural sex with him. According to the medical report dated 02.07.2019, on anal examination, funnel shaped depression of the anal sphinder was found, which was reddish in colour. The victim was found in habitual anal intercourse. As per the certificate issued by the Principal of his college and as per the date of birth certificate, the date of birth of the victim was 04.08.2005. The case of the FIR is supported by the victim in his statements, recorded under Sections 161 and 164 of the Code of Criminal Procedure, 1973 and in the trial as PW-4. The victim was found by witness Bhar Singh Panwar on the banks of the river in the evening of 02.07.2019. Suresh Panwar, a member of the Child Welfare Committee/informant and the witness Bhar Singh Panwar supported the case of the respondent in their statements, recorded under Section 161 of the Code of Criminal Procedure, 1973.

Section 439 of the Code confers very wide powers regarding bail. But, while granting bail, the High Court is guided by the same considerations as other court. That is to say, the gravity of the crime, the character of the evidence and such other grounds are required to be taken into consideration.

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.

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.

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.

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 is most heinous offence causing enormous emotional and physical harm that can lost throughout child victim's lifetime.

It would be inappropriate to discuss the evidences in depth at this stage because it is likely to influence the trial court, but, 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.

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."

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.

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...."

The applicant had an opportunity to raise all his contentions on the previous occasion. At the time of the arguments, on the first bail application, the learned counsel for the applicant had raised his contentions that seven witnesses are examined by the prosecution in the trial and there are contradictions in the statements of these witnesses. The contention of the learned counsel for the applicant is that the applicant is in judicial custody since 03.07.2019, would not amount to change in the circumstances. Therefore, it is not open to the applicant to make successive bail applications even on the grounds already rejected by this Court earlier.

On overall consideration of the bail application and also in the light of the fact that any change in the circumstances is not established, after rejection of the first bail application on merits. This Court does not find any change in the circumstances to entertain the present second bail application. The second bail application does not deserve to be entertained. Consequently, the second bail application is rejected.