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Lakhan Das S/O Shri Mohan Das B/C … vs State Of Rajasthan on 24 September, 2019

HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR

S.B. Criminal Appeal No. 1135/2019

Lakhan Das S/o Shri Mohan Das, By caste-Jatav, Presently
residing at rented House of Dr. Narayan Pipesh, Haweli Pada,
infront of Khadi Ashram, P.S.-Badi, Dist-Dholpur Rajasthan.
-Complainant/Petitioner-
Versus
1. State Of Rajasthan, Through P.P. -State Respondent-

2. Punjab Singh S/o Shri Jhamoliram B/c Gurjar, R/o
Khanpura Ps Nadanpura Dist. Dholpur Raj.

-Accused/Respondents-

For Appellant(s) : Mr. Manoj Kumar Avasthi
For Respondent(s) : Mr. S.S. Ola, PP
Mr. Yogesh Singhal

HON’BLE MR. JUSTICE INDERJEET SINGH

Order

24/09/2019

1. The present appeal has been filed by the complainant-

petitioner (hereinafter to be referred as ‘complainant’) against the

order dated 04.05.2019 passed by learned Special Judge,

Protection of Children from Sexual Offences Act The

Commissions for Protection of Child Rights Act, Dholpur in Case

No.48/2019 whereby the accused-respondent No.2 (hereinafter to

be referred as ‘accused’) was ordered to be released on bail under

Section 439 Cr.P.C.

2. Brief facts of the case are that the complainant submitted a

missing report on 24.09.2016 of her minor daughter, aged about

16 years, on the basis of which FIR No.557/2016 was registered at

Police Station Bari, District Dholpur for the offences under

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Sections 363, Section366, Section376D IPC and Section 5 Section6 of Protection of

Children from Sexual Offences Act,2012 and Section 3-2(5), 3-

1(W-1) of Scheduled Castes and SectionScheduled Tribes (Prevention of

Atrocities) Act (hereinafter to be referred as ‘Act of 1989’). The

police after investigation filed challan and arrested the accused

namely Punjab Singh other co-accused Aishveer. After arrest,

the accused filed bail application under Section 439 Cr.P.C. before

the learned trial Court which was dismissed by the learned trial

court and being aggrieved the accused filed appeal before this

Court under Sectionsection 14-A(2) of the Act of 1989 bearing S.B.

Criminal Appeal No.1597/2017 which was dismissed by the

Coordinate Bench of this Court vide order dated 5-10-2017 which

reads as under :-

“Learned counsel for the appellant submits
that he may be permitted to withdraw the
appeal to enable the appellant to file a fresh one
after the statement of the prosecutrix is
recorded during trial.

Ordered accordingly.”

3. After recording statement of the prosecutrix during trial the

accused thereafter filed appeal before this Court bearing S.B.

Criminal Appeal No.598/2018 which was also dismissed by the

Coordinate Bench of this Court vide order dated 16-5-2018 which

reads as under :-

“Appellant has filed this appeal under
Section 14-A(2) of Scheduled Castes and
SectionScheduled Tribes (Prevention of Atrocities)
Act,2016 in F.I.R. No.557/2016, registered at
Police Station Badi, District Dholpur for the
offence under Sections 363, Section366, Section376-D Indian
Penal Code, 1860 and Section 5, Section6 of Protection
of Children from Sexual Offences Act, 2012 and
Section 3-1 (W-1), 3-2 (5) of Scheduled Castes
and SectionScheduled Tribes (Prevention of Atrocities)
Act,1989.

Learned counsel for the appellant has
submitted that the appellant has been falsely
involved in this case.

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As per the prosecution story, appellant
along with his co-accused had raped the
prosecutrix aged about 16 years. Prosecutrix
while appearing in the witness-box has duly
supported the prosecution case.

In these circumstances, keeping in view
the seriousness of allegations levelled against
the appellant, no ground for grant of bail to him
is made out.

Dismissed.”

4. For third time again the appellant being aggrieved by the

rejection of his bail application under Sectionsection 439 Cr.P.C. by the

learned trial court again filed appeal before this Court bearing S.B.

Criminal Appeal No.1333/2018 which too was dismissed by the

Coordinate Bench of this Court vide order dated 20-7-2018 which

reads under :-

“Appellant has filed this appeal under
Section 14-A(2) of Scheduled Castes and
SectionScheduled Tribes (Prevention of Atrocities)
Act,1989 seeking regular bail in F.I.R.
No.557/2016 registered at Police Station Badi,
District Dholpur for offences under Sections 363,
Section366, Section376-D of Indian Penal Code, 1860, Section
5, Section6 of Protection of Children from Sexual
Offences Act,2012 Sections 3-1 (W-1), 3-2 (5)
of the Scheduled Castes and SectionScheduled Tribes
(Prevention of Atrocities) Act,1989.

Heard.

As per the prosecution story, appellant and
his co-accused had raped the prosecutrix, who is
a minor. Prosecutrix while appearing in the
witness box has duly supported the prosecution
case.

Keeping in view the seriousness of
allegations levelled against the appellant, no
ground for grant of bail to him is made out.

Dismissed.”

5. It is also pertinent to mention here that the appeal filed by

the accused seeking bail under Sectionsection 439 Cr.P.C. was dismissed

by the Coordinate Bench of this Court after considering statement

of the prosecutrix recorded during trial, however the appeals

seeking bail having been dismissed thrice by the Coordinate Bench

of this Court the accused again filed bail application under Section

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439 SectionCr.P.C. before the learned trial court which was allowed by the

learned trial court vide order dated 4-5-2019. Hence, being

aggrieved the present appeal seeking cancellation of bail has been

filed by the complainant challenging the order dated 4-5-2019

passed by the learned trial court.

6. Counsel for the complainant submitted that the order passed

by the learned trial court amounts to judicial indiscipline and once

the appeal preferred by the accused seeking bail has been

dismissed by the High Court after considering statement of the

prosecturix the learned trial court while exercising its power under

Sectionsection 439 Cr.P.C. erred in granting bail to the accused as there

was no change in the circumstances after rejection of his appeal

by this Court seeking bail under Section 439 Cr.P.C. Counsel

further submits that the victim (minor girl) aged about 16 years

has been raped by two persons and the victim in her statement

recorded during trial has specifically levelled the allegation of

committing rape on her against the accused.

7. Counsel further submits that the learned trial court erred in

granting bail to the accused on the ground that he is in custody

since 18-4-2017.

8. Counsel further submits that certainly the High Court can

cancel the bail granted by the Sessions Court, looking to the

seriousness of the offence alleged against the accused and in the

present matter the accused along with co-accused raped a minor

girl who is a special child having mild mental retardation.

9. In support of the contentions, counsel relied upon the

judgment passed by the Hon’ble Supreme Court in the matter of

Anil Kumar Yadav Vs. State (NCT of Delhi) Anr.,

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connected matters, reported in (2018) 12 SCC 129 and

particularly referred para-24 32, which read as under :-

“24. As pointed out earlier, one of the
grounds for grant of bail to the appellant Anil
Kumar Yadav by the Sessions Court was that he
was in custody for more than one year. In
crimes like murder, the mere fact that the
accused was in custody for more than one year,
may not be a relevant consideration. In
Gobarbhai Naranbhai case, it was observed that
the period of incarceration by itself would not
entitle the accused to be enlarged on bail. The
same was reiterated in SectionRam Govind Upadhyay v.
Sudarshan Singh.

32. It was repeatedly urged that the High
Court misdirected itself in interfering with the
discretionary order of the Sessions Court
granting bail to the accused and there was
absolutely nothing to show that the appellants
are likely to abuse the bail or tamper with
evidence. The court while granting bail should
exercise its discretion in a judicious manner. Of
course, once discretion is exercised by the
Sessions Court to grant bail on consideration of
relevant materials, the High Court would not
normally interfere with such discretion, unless
the same suffers from serious infirmities or
perversity. While considering the correctness of
the order granting bail, the approach should be
whether the order granting bail to the accused is
vitiated by any serious infirmity, in which case,
the High Court can certainly interfere with the
exercise of discretion. The materials available on
record prima facie indicating the involvement of
the accused, possibility of accused tampering
with witness and the gravity of the crime were
not kept in view by the Sessions Court. Since
the Sessions Court granted bail to the appellants
on irrelevant considerations and the same
suffered from serious infirmity, the High Court
rightly set aside the order of grant of bail to the
accused. The impugned orders do not suffer
from any infirmity warranting interference.”

10. Counsel further relied upon the judgment passed by a

Coordinate Bench of this Court before the Principal Seat at

Jodhpur in the matter of Ashok Sachdeva Vs. State Anr.,

reported in 2012(3) WLC (Raj.) 85.

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11. Counsel submits that in the light of the judgments (supra),

the order passed by the learned trial court dated 4-5-2019

granting bail to the accused under Section 439 Cr.P.C. deserves to

be set aside.

12. Counsel for the accused on the other hand submits that the

accused has not threatened the complainant and the learned trial

court has rightly passed the order dated 4-5-2019 as the trial got

delayed.

13. Counsel further submits that the power of trial court granting

bail under Section 439 Cr.P.C. is similar to that of High Court and

the trial court has not committed any illegality in granting bail to

the accused.

14. Counsel further submits that the parameters of cancellation

of bail under section 439(2) Cr.P.C. are different than that of

granting bail under Section 439 Cr.P.C.

15. In support of the contentions, counsel for the accused relied

upon the judgment passed by the Hon’ble Supreme Court in the

matter of Rameshwar Sharma Vs. Director of Revenue

Intelligence, reported in (2018)11 SCC 713 and Sharad T.

Kabra Vs. Union of India, reported in (2018) 14 SCC 493.

16. Heard counsel for the parties and perused the record.

17. In my considered view, in the present matter no change in

the circumstances took place after the appeal seeking bail under

Section 439 Cr.P.C. was dismissed by Coordinate Bench of this

Court. I am of the considered view that the learned trial court has

committed gross illegality in granting bail to the accused, more

particularly when the appeal seeking bail under Section 439 Cr.P.C.

was dismissed by the Coordinate Bench of this Court after

considering statement of the victim recorded during trial and

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looking to the seriousness of the offence, the reason assigned by

the learned trial court that the accused is in custody since 18-4-

2017, in my considered view may not be a relevant consideration

for exercising discretion in favour of the accused under Sectionsection

439 Cr.P.C., as has been held by the Hon’ble Supreme Court in the

matter of Anil Kumar Yadav (supra).

18. Thus, in the facts and circumstances of this case the Registry

is directed to place a copy of this order before the Hon’ble Chief

Justice for information.

19. In that view of the matter, the present application for

cancellation of bail is allowed. The order passed by the learned

trial court dated 4-5-2019 is set aside. The bail bonds of the

accused are directed to be cancelled and the learned Trial Judge is

directed to take the accused into custody and proceed with the

trial of the case.

(INDERJEET SINGH),J

VS Shekhawat/1

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