Ram Niwas vs State of Haryana

V.S. Aggarwal, J.

On 22.9.1994 at about 6 p.m. Smt. Kanta alongwith Smt. Om Pati are alleged to be going to Civil Hospital, Panipat. They boarded a rickshaw because they were to see a relative of Om Pati who was admitted in the Hospital. When the rickshaw reached near Lal Batti Chowk, both the petitioners met them. They were posted as Constables at Police Station Model Town. At the relevant time, they were in civil dress. They asked Smt. Kanta to get down from the rickshaw. She refused to oblige. She was forcibly made to get down from the Rickshaw and taken to Nanda Guest House, situated across G.T. Road. Smt. Om Pati raised an alarm. Satish Kumar son of Lal Chand Manager of Nanda Guest House asked the petitioners as to where they were taking Smt. Kanta. They slapped Satish Kumar. Smt. Kanta was taken to a room on upper floor of the Hotel. Petitioner Randhir Singh bolted the room from inside and raped her, while petitioner Ram Niwas stood as a guard outside the room.

Petitioners seek anticipatory bail.

Reliance was placed by learned counsel for the petitioners on the alleged cancellation report pertaining to this offence and to urge that on investigation and perusal of the affidavit of Smt. Kanta the case as such was recommended to be filed.

However the said argument must be taken to be devoid of any merit. This is for the reason that the said cancellation report had not been accepted and upon further investigation, challan had since been filed in Court. To state, therefore, that it was found on police investigation that no case is drawn against the petitioner would not be correct, nor help the petitioners.

Confronted with that position learned counsel for the petitioners highlighted the fact that Smt. Kanta had sworn an affidavit in terms that she did not know the petitioners nor anyone of them raped her. The said contention was controverted by the learned State counsel and he referred to the subsequent application filed by Smt. Kanta addressed to the Superintendent Police, Panipat in which the asserted that she was being threatened by the petitioners and even her life was in danger.

We know from celebrated decision of Supreme Court in the case of Gurbaksh Singh v. State of Punjab, AIR 1980 SC 1632 that there is clear distinction between ordinary order of bail and an order of anticipatory bail. While the former is granted after arrest and therefore means release from the custody of police, the latter is granted in anticipation of arrest and is effective at the very moment of arrest. In Paragraph 31 a clear demarcation was pointed out between relevant consideration while examining an application for anticipatory bail and an application for bail after arrest. It was observed as under :

"31. In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made. On the other hand, if it appears likely, considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice, such an order would not be made."

The relevant consideration hardly needs be repeated that if there is reasonable possibility of the presence of accused not being secured during trial, a reasonable apprehension that witnesses will be tampered with and the larger interest of Public and State coupled with the gravity of the offence the application for anticipatory bail can well be refused.

The attention of the Court was drawn to the statement recorded by the police of the Manager, Nanda Guest House. He clearly points that Smt. Kanta was dragged inside the Guest House and even he was assaulted. The question, therefore, of false implication by Smt. Kanta for purpose of the present order is ruled out. Even Munshi Ram Pal of the said Police Station reported that both the petitioners did not report to the Police Station on that date. In addition to that one of the wellknown conditions of bail including anticipatory bail are that the persons so admitted to bail will not tamper with the evidence. The affidavit of Smt. Kanta relied upon only reveals that attempt to tamper with the evidence is being made by the petitioners well in advance for purpose of the present order. There is no ground to ignore the complaint made by Smt. Kanta that she is being threatened and her life is in danger. Therefore, the gravity of offence and larger interest of State demand that petitioners are not entitled to the discretion under Section 438 of Code of Criminal Procedure. There is no reason to admit them to anticipatory bail.

For these reasons, the petition fails and is dismissed.