Ramesh and Others vs State of Haryana

R.L. Anand, J.—Subject of ""bail"" is daily confronting the High Courts as well as the Subordinate Courts, and some guidelines are supposed

to be given for the subordinate Courts while dealing with the applications of bail under Sections 437/439 of the Code of Criminal Procedure. By

the present order I intend to dispose off the bail application u/s 439, Code of Criminal Procedure, for the grant of bail to petitioners Ramesh son of

Telu Ram and Dilbagh alias Bagga son of Mangal, in case F.I.R. No. 170 dated 26-6-1996, lodged under Sections 452/376/506/34, Indian Penal

Code, registered in Police Station Hansi, District Hisar. The case was registered on the basis of the Statement of Smt. Neetu, who made a

statement before the S.I./ S.H.O., Police Station Hansi on 26-6-1996, alleging that during her childhood she was married to Liku son of Deep

Singh, resident of Jewra by her parents. However, after her marriage she did not visit the house of her in-laws till that day. She has six brothers and

five sisters. Eight are elder to her and three are youngers. Her mother Khazani and her father had gone to meet her relations for the last 2/3 days.

Her eldest brother Satbir Singh is married and resides separately at a distant place from the house of her parents. The remaining five brothers are

not married. The proseculrix alleges in her statement that on 25-6-1996 she along with her two younger brothers, namely, Parkash and Balinder

was present in her house and none else was present there. After bolting the door from inside and after taking her meals all the three of them slept

on the cots in the court-yard at about 8.30 p.m./9 p.m. her cot was close to the kitchen. while the cots of her younger brothers were in front of the

room. At about 10 p.m. Dilbagh Singh alias Bagga accused came to her residence and sat on her col. Ramesh son of Telu, caste Jat, resident of

the same village, followed him and sat on her cot towards the side of pillow. Dilbagh Singh alias Bagga then asked her to lake off her clothes. She

refused to do so and she started making noise when Ramesh, who was carrying a cloth in his hand, put the same on the mouth of the prosecutrix

and pressed her month with one hand. Thereafter Dilbagh Singh alias Bagga opened the string of her salwar and took off her salwar. He then lifted

her shirt. On hearing the noise of the prosecutrix, her younger brothers Parkash and Balinder woke up. Thereafter Ramesh and Dilbagh accused-

petitioners told them that if they made a noise, they would be killed. On hearing this and on account of the fact that they were younger to the

prosecutrix, both of them kept lying on their cots and kept on watching the incident. The prosecutrix further alleges in her statement that Dilbagh

Singh alias Bagga sat on her and then he forcibly entered his private part into her vagina. This accused caught both the hands of the prosecutrix.

Ramesh accused started fondling with the breast of the prosecutrix. Dilbagh alias Bagga committed sexual intercourse with the prosecutrix against

her will. Thereafter Dilbagh alias Bagga pressed her mouth and Ramesh sat upon the prosecutrix. He also committed sexual intercourse with the

prosecutrix aginst her wish and will. In this manner both Ramesh and Dilbagh committed sexual intercourse with the prosecutrix two times each.

After committing the rape, both the accused fled away through the door. The prosecutrix further alleges that she and her brothers kept lying on the

cots due to fear and on the next morning she deputed her younger brother Balinder to the house of her elder brother Satbir. On coining to know

about the rape committed by both the accused, her brother Satbir and his wife came to the house of the prosecutrix where the entire incident was

narrated to them. The prosecutrix further states in her statement that she and her brothers had been waiting for their parents, so that they may

return. Till night they did not return and on the next day the abovc statement was made before the S.I. and this statement became the basis of the

F.I.R.

The accused were apprehended. They applied for bail u/s 439, Cr.P.C, before the Additional Sessions Judge, Hisar, who vide order dated 7th

August, 1996 dismissed the application by incorporating the following orders : --

...Learned counsel for the accused has also cited before me authority Charan Singh v. State of Haryana 1989 (1) CLR 306, in support of his

contention that no offence has been committed by the accused. But this authority at this stage does not apply to the present case. The police has

also taken into possession a Dari on which semen stains were found. Normally no brother or father would stake the reputation of his sister or

daughter for saving their skin in criminal prosecution. It may also be mentioned that the accused-applicants might have entered the house of the

prosecutrix finding her alone in the company of two minor brothers of very tender age in view of the fact that they must have thought it a proper

opportunity to enter the house of the prosecutrix when her father and mother were already away. A perusal of the medical report also shows that

there was tenderness and painful on touching the private parts. When the gang-rape has been committed on Charpai (cot) having Dari, the external

injuries on the person of prosecutrix are not possible. Considering the seriousness of the offence, there is no justification for admitting the accused-

applicants to bail, so application for bail filed on behalf of Dilbagh and and Ramesh accused is hereby dismissed without adverting on the merits of

the case. Bail application file be consigned to the record room.

Aggrieved by the order dated 7th August, 1996, the present bail application has been filed which is being disposed of at the motion stage itself with

the assistance rendered by Shri R. S. Surjewala, Advocate, appearing on behalf of the petitioners.

Before I further enter into discussion, I note down the limitation of this Court as laid down by the Hon''ble Supreme Court that while disposing

of the bail applications, the High Court should be slow in writing a detailed order, lest a prejudice should be caused either to the prosecution or to

the accused at the time of the trial. Reference can be made to Kashi Nath Roy Vs. State of Bihar, In para No. 6 of that judgment their Lordships

of the Supreme Court are pleased to lay down as follows :--

As embedded in the criminal jurisprudence obtaining in this country, courts exercising bail jurisdiction normally do and should refrain from

indulging in elaborate reasoning in their orders in justification of grant or non-grant of bail. For, in that manner, the principle of ""presumption of

innocence of an accused"" gets jeopardized; and the structural principle of ""not guilty till proved guilty"" gets distroyed, even though all sane elements

have always understood that such views are tentative and not final, so as to affect the merit of the matter. Here, the appellant has been caught and

exposed to a certain adverse comment and action solely because in reasoning he had disclosed his mind while granting bail. This may have been

avoidable on his part, but in terms not such a glaring mistake or impropriety so as to visit the remarks that the High Court has chosen to pass on

him as well as to intiate action against him, as proposed.

However, in the present case detailed order in the bail application has become necessary as in view of this court, some of the Subordinate Courts

while dealing with the applications for bail under Sections 437/439, Cr.P.C., do not follow the settled guidelines given by the Hon''ble Supreme

Court as well as by the High Courts, resulting in miscarriage of justice.

Section 437, Cr. P. C., lay down as follows : --

When bail may be taken in case of non-bailable offence. -- (1) When any person accused of, or suspected of, the commission of any non-

bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other

than the High Court or Court of Session, he may be released on bail, but --

(i) Such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death

or imprisonment for life;

(ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of ""an offence punishable with

death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non-

bailable and cognizable offence:

Provided that the Court may direct that a person referred to in Clause (i) or Clause (ii) be released on bail if such person is under the age of sixteen

years or is a woman or is sick or infirm;

Provided further that the Court may also direct that a person referred to in Clause (ii) be released on bail if it is satisfied that it is just and proper so

to do for any other special reason:

Provided also that the mere fact that an accused person may be required for being indentified by witnesses during investigation shall not be

sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such

directions as may be given by the Court.

(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds

for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the

accused shall, subject to the provisions of Section 446-A and pending such inquiry, be released on bail, or, at the discretion of such officer or

Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.

(3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more

or of an offence under Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abetment of, or conspiracy or attempt to commit,

any such offence, is released on bail under sub-section (1), the Court may impose any condition which the Court considers necessary --

(a) in order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or

(b) in order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is

suspected, or

(c) otherwise in the interests of justice.

(4) An officer or a Court releasing any person on bail under Sub-section (1) or sub-section (2), shall record in writing his or its reasons or special

reasons for so doing.

(5) Any Court which has released a person on bail under Sub-section (1) or sub-section (2), may, if it considers it necessary so to do, direct that

such person be arrested and commit him to custody.

(6) If, in any case triable by a Magistrate the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days

from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail

to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.

(7) If, at any time after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered, the Court is of

opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in

custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered.

Section 439, Cr.P.C., lays down as under : --

Special Powers of High Court or Court of Session regarding bail.

(1) A High Court or Court of Session may direct--

(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of

Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;

(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified :

Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable

exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to

the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.

(2) A High Court or Court of Session may direct that any person who has been released on bail, under this Chapter be arrested and commit him to

custody.

The above provisions would show under what circumstances bail can be taken in cases of non-bailable offences by the lower Courts and

special powers have been conferred upon the High Court and the Courts of Session regarding bail. A combined study of the above provisions

would show that the Courts are supposed to apply some tests while considering the applications for bail, such as the nature and seriousness of the

prosecution, the nature of evidence in support of the prosecution, the severity of the punishment which the conviction will entail, the character,

behaviour and standing of the accused, a reasonable possibility of the presence of the accused not being secured at the trial. Also it is the law that

while disposing of the bail applications, the Courts are supposed to be guided prima facie with the allegations of the prosecution and need not and

invariably should not enter into defences which might be taken by the accused unless those defences can throw a light about the genuineness or

otherwise of the allegations of the prosecution. If the above principles of law are kept in view while disposing of the bail applications, the scope of

committing an error on the part of the Subordinate Courts becomes too remote.

Before I deal with the bail application in hand, I would also like to incorporate the views of the Hon''ble Supreme Court with regard to the cases

of rape. The Hon''ble Supreme Court is pleased to hold in Dharma Vs. Nirmal Singh Bittu and another, that a rapist not only violates the victim''s

personal integrity but degrades the very soul of the helpless female. In the present case two young persons allegedly committed rape upon Smt.

Neetu, taking advantage of her lonlincss in the house and that too in the presence of her two younger brothers, by putting her under threat. The

alleged act of the petitioners shocks the very conscience of this Court as regards the mode of the commission of the alleged offence. Learned

counsel for the petitioner, however, has made an endevour for grant of bail for his clients by mainly placing reliance on the medical evidence and by

urging that the prima facie examination of the medicolegal report of me prosecutrix indicates that no act of sexual intercourse has been committed

because as per the report of the doctor, her hymen remained intact. In support of his contention, learned counsel for the petitioner Shri R. S.

Surjewala has drawn my attention to the observations as contained in Modi''s ''Medical Jurisprudence and Toxicology 21st Edition (1988), and my

pertinent attention has been drawn to observation No. 4 appearing on page 375 of the said book, which runs as follows:

In nubile virgins the hymen, as a result of complete sexual intercourse, is usually lacerated, having one or more radiate tears (more so in posterior

half) the edges of which are red, swollen and painful, and bleed on touching, if examined within a day or two after the act.

This Court is not in agreement with the submission of Mr. Surjewala mainly on the grounds:

(i) There is a categorical statement of the prosecutrix that both the petitioners had committed rape upon her under the threat of her life and in the

presence of her brothers, who were also put under the threat of their life.

(ii) Also it is the case of the prosecutrix that the occurrence was narrated to her elder brother and his wife.

(iii) Even the medical evidence, which has been collected by the Investigating Officer does not support the assertion of the petitioners.

As per the report of the medical expert, though the hymen of the prosecutrix was not torn, but the doctor has categorically observed that on touch

it was painful and there was redness; clearly suggesting that there was a penetration of the male organ inside the vagina of the prosecutrix,

suggesting that a rape had been committed. For the commission of an offence of rape, full sexual intercourse till the stage of ejaculation is not

required. The penetration of the male organ inside the vagina of the woman is enough for the purpose of attracting the ingredients of rape as

defined u/s 375, Indian Penal Code.

In view of the serious allegations levelled against the petitioners, no case for bail prima facie is made out.

A ground has been made out in the bail application itself that the petitioners have been falsely implicated in order to wreak vengeance against

them and in order to put pressure upon them not to depose against the brother and other family members of the prosecutrix, who are absconding in

some dacoity case. No sane parents, however, inimicalthey may be against the accused, would like to tear the abdomen of their daughter by

forwarding her in order to satisfy their alleged vegeance. It is also not certain and clear whether the petitioners in any manner can be helpful to the

family of the prosecutrix. Be that as it may, keeping in view the above guidelines, no case for bail is made out to the petitioners.

It was then submitted by the learned counsel for the petitioners that the prosecutrix in this case is more than 16 years of age and perhaps she

may be the consenting party to the alleged rape. The argument is too far-fetched and cannot be believed. Assuming for the sake of argument that

the prosecutrix is more than 16 years of age, that does not give a licence to the male members of the society, like the petitioners, to take a woman

for granted. It was also submitted that the petitioners are young boys and, therefore, they should be released on bail, pending trial. This submission

is also devoid of any merit. Law of bail should balance between two conflicting demands -- (i) Shielding the society from misadventures of the

persons allegedly involved in crime; and (ii) Presumption of innocence of the accused till he is found guilty. The fact that the accused are young

boys is no ground for granting them bail. By granting them bail in an offence which is serious, this Court is rather of the opinion that it would shake

the people''s confidence in Courts.

Thus, summing up, I am of the opinion that while dealing with the cases of bail u/s 437/439 of the Code of Criminal Procedure, the Courts

invariably should be guided with the allegations being relied upon by the prosecution and the evidence collected by the Investigating Officer vis-a-

vis each of the accused. Courts below should also be guided with the severity of the allegations, to see whether the chances of securing the

accused during the course of trial are there or not. The courts below are also supposed to be guided by the principle ''Bail is the rule and jail is an

exception'' but that exception is further subject to an exception that the provisions of bail should not be interpreted only for the benefit of the

accused but also for the benefit of the prosecution as well as for the benefit of the society at large, which can also be affected directly or indirectly

with the commission of an offence against the society. A strict view is called for against a rapist, who had tried to molest the honour and verginity of

a young woman, leaving her with an unmatched stigma for her remaining life. The offence is against the weaker sections of the society, which

cannot and should not go unnoticed on the pedestral of the provisions of bail.

The net result is that the present bail application is devoid of any merit and the same is hereby dismissed at the motion stage itself.