Allowed
Raphik S/O Sabir v. State of Rajasthan
Rajasthan HCCRLBC/16/2023
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from the order text
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JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR…
What the court decided
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JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR…
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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
S.B. Criminal Bail Cancellation Application No. 16/2023
Raphik S/o Sabir, Aged About 38 Years, R/o Ladusar, Malsisar, District Jhunjhunu (Raj.)
----Petitioner
Versus
----Respondents
For Petitioner(s) : Mr. Majhar Hussain For Respondent(s) : Mr. Prashant Sharma, PP Mr. Anil Mahala
HON'BLE MR. JUSTICE BIRENDRA KUMAR
Order
28/08/2023
Instant application is for cancellation of bail granted to respondent No. 2 by the learned Special Judge POCSO vide order dated 11.01.2023 in connection with FIR No. 119/2022 registered with police station Malsisar, Jhunjhunu for offences under Sections 363, 376 (3) of the IPC and Sections 3 and 4 of POCSO Act.
According to FIR, the victim was found missing from her house in the night of 08.10.2022. The petitioner was suspected to have induced her to go with him. The victim was minor on the date of incident, in her statement recorded under Section 164 Cr.P.C. victim disclosed her age as 14 years 5 months, the school certificate shows that she was born on 10.05.2008. The victim stated that petitioner was known to her and both were intimate
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and were talking on phone. She left the house without information to the family members and went alongwith the petitioner to Chainpura from there to Sikar then Delhi and then Calcutta. At Delhi, she was served with some intoxicating substance and thereafter in her unconsciousness, she was ravished by the petitioner, thereafter both went to Calcutta. In Calcutta also, petitioner ravished her.
Impugned order would reveal that the learned Special Judge has not considered the aforesaid material and statement recorded under Section 164 Cr.P.C. before the Magistrate rather relied upon the statement of the victim before the police recorded under Section 161 Cr.P.C. and came to the conclusion that since the petitioner has got no criminal antecedents, investigation of the case is complete, hence petitioner deserves prayer for bail.
Learned counsel for respondent No. 2 contends that trial is going on, petitioner is cooperating with the trial and there is no allegation of tampering with the evidence. Consideration of grant of bail and cancellation of the same stands on different footing. Once the court has granted bail, the same need not be interfered with unless there is material to substantiate that the petitioner is tampering with the evidence and there is chance that petitioner would not cooperate with the trial.
During trial victim has already been examined and she has supported what she has stated in statement recorded under Section164 Cr.P.C.
The law is well settled that while granting bail besides other consideration one of the consideration would be nature of
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accusation, severity of punishment and available evidence in support of accusation. The court below has not considered that the victim was a minor on the date of incident, hence her consent was immaterial, in view of provisions of Section 375 sixthly of IPC which provides that with or without her consent, when she is not 18 years of age. The learned court below did not consider the quantum of punishment provided for aggravated penetrative sexual assault committed by the accused.
Learned court below has not taken into note the relevant material in her statement recorded under Section 164 Cr.P.C. which has more weight than the statement to the police which cannot be proved during trial as per the Indian Evidence Act. The court has not considered societal impact of the offence while granting bail soon after conclusion of the investigation.
Considering the aforesaid material and non consideration of the same by the trial Judge, it is a fit case wherein bail should not have been granted to respondent No.2. Accordingly impugned order dated 11.01.2023 stands hereby quashed and this bail cancellation application stands allowed.
Bail granted to the respondent No. 2 is hereby cancelled. Let respondent No. 2 surrender within ten days, failing which court below shall take coercive steps for procuring attendance of respondent No. 2.
(BIRENDRA KUMAR),J
ashu /1
2 provisions across 2 enactments
Raphik S/o Sabir
State Of Rajasthan, Through P.P.
Praveen Kumar @ Meena S/o Mahendra Kumar Meena
Birendra Kumar
As recorded by the court registry
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