Dismissed

Venu Gopal , Naredla Venugopal Reddy v. The State of Telangana

Telangana HC13 Jul 2021CRLP/3572/2021

Case brief

AI extract

What is this about?

Petition under Section 482 Cr.P.C. by accused No.1 seeking to quash the Sessions Court's order cancelling the bail earlier granted to him in a case alleging aggravated penetrative sexual assault on a minor orphan who later died. The court, after reviewing the law on cancellation of bail, found no error in the cancellation and dismissed the petition.

What the court decided

AI extract

Venu Gopal , Naredla Venugopal Reddy Vs The… — Child Sexual Offences (POCSO) | Telangana HC (2021)

¶1

HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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TUESDAY, THE THIRTEENTH DAY OF JULY

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TWO THOUSAND AND TWENTY ONE

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PRESENT

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THE HONOURABLE SRI JUSTICE K.LAKSHMAN

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CRIMINAL PETITION NO: 3572 OF 2021

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Between:

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Venu Gopal @ Naredla Venugopal Reddy, S/o, Narayana Reddy, aged about 52 years, Occ- Reddy Lab Employee, R/o. Flat No.103, Amlaya Bhavan, Ir,,4adinaguda, Miyapur, Rangareddy District. Telangana State.

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...PETITIONER/ACCUSED No.1

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AND

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The State of Telangana, rep. by its Public Prosecutor, High Court for the State of Telangana at Hyderabad, through P.S., Ameenpur.

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...RESPONDENT

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Petition under Section 482 oI Cr.P.C praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition, the High Court may be pleased to call for the records made in Crl.M.P. 772 ol 2020 in Crl.M.P.No. 651 of 2020 in Cr.No.2'lB ol 2020 of P.S. Ameenpur by the 1st Addl. District And Sessions Judge, lr/edak at Sangareddy and quash the same in respect of the petitione(Al ) consequently enlarge the petitioner on bail in Cr.No.218 ol 2020 of P.S. Ameenpur, ft/edak at Sangareddy .

¶14

This Petition coming on for hearing, upon perusing the Memorandum of Grounds of Criminal Petition and upon hearing the arguments of Sri.Gvnrsss Vara Prasad, Advocate for the Petitioner and the Public Prosecutor on behalf of the Respondent No1.

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The Court made the following: ORDER

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HON'BLE SRI JUSTICE K. LAKSHMAN

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CRIMINAL PETITION No.3572 OF 2O21

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ORDER:

¶19

This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') by the petitioner/A. 1 to quash the order dated 28.12.2O2O passed in Cr1.M.P.No.772 of 2O2O in Cr1.M.P.No.651 of 2O2Oin Cr.No.218 of 2O2O of Ameenpur Police Station by the learned I Additional District and Sessions Judge at Medak at Sangareddy. The petitioner is A.1 in the said crime. The offences alleged against the petitioner herein/A. 1 and A.2 and A.3 are under Sections 376(31, 342, 323,328, 506 and 109 of IPC, and under Section 5 ( 1 ) read u,ith 6 of the Protection of Children from Sexual Offences) Act, 2072 (for short, 'the Act')

¶20

Heard Sri GVNRSSS Varaprasad, learned counsel for the petitioner herein / A. 1 and learned Public Prosecutor and perused the record.

¶21

FACTS OF THE CASE

¶22

3.i) The allegations against the petitioner herein are that the parents of the victim were passed away in her childhood. Therefore her uncle joined the victim in 'Maruthi Orphanage' in the year 2015. A.2 and A.3 are the founders of the said Orphanage. A.1 is regular donor to the said Orphanage. Abourt one "year back, A.2 and A.3 had sent the victim into a room ro 51h floor of the building to meet A.1, u,'here he gave her a drink fiuice),^{after consuming the same,} the^{victim went into}

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K L,J Crl.p.No.l572 202t

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unconscious state when A. L misbehaved with her. When she became conscious, she noticed that she was naked. When she informed the same to A.2 and A.3, they threatened her not to reveal the matter to anyone.

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ii) Whenever A. 1 comes to the Orphan age, A.2 and A.3 used to threaten her to sleep with A. 1 and sent her to S*, floor. The victim noticed many times that A. I used to give money to A.2 and A.3.

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iii) One day as usual A. 1 took her to her room and after some time he went off. Her friends who are staying in the Orphanage, saw her naked and in unconscious state. When she wanted to go to her house, A.2 and A.3 did not allow her. On her informing the same to her sister on phone, her brother-in_law took her to their home. After reaching home, she became sick and was taken to the hospital where doctors, after medical examination, advised to take her to police Station, where the police registered a case in Cr.No. 218 of 2O2O for the aforesaid offen ces.

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iv) During the course of investigation, as the victim became sick, she was admitted in Niloufer hospital, on 07.0g.2020 and later she went into coma and died on l2.Og.2O2O.

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v) The petitioner herein/A. 1 and A.2 and A.3 have filed an application under Section 439 of the Cr.p.C. vide Crl.M.p.No.65l of 2o2o in cr'No.2l8 of 2o2o seeking regular bail before rearned I Additional District and Sessions Judge, Medak at Sangareddy and the said Court vide order d.ated.2Z.LO.2O2O granted, bail to

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KL.J Crl.n.No 3 572,11)l I

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the petitioner herein/A. 1 and A.2 and A.3 or-r the following

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grounds:-

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a) There is no question of interference by the accused in the investigation.

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b) The Investigating Officer has completed investigation in Cr.No.218 of 2O2O and submitted the draft charge sheet to the Public Prosecutor who has received the same and finalized.

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c) Relevant witnesses were also examined.

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d) Accused were in remand for a period of 82 days.

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e) Guilt or innocence of the petitioner is the matter of trial. r) The Court below has granted bail to the petitioner herein and other accused on the said grouncls.

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The prosecution has filed a petition under Section 439(21 of the Cr.P.C. vide Crl.M.P.No.772 of 2O2O in Crl.M.P. No.651 of 2O2O in Cr.No.218 of 2O2O seeking cancellation of the said bail granted to the accused vide order dated 27.1O.2O2O on the following grounds:-

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i) A. 1 to A.3 are charged under Section 5(1) read with 6 of the Act, and there is a statutory presumption under Section 29 of the Act, which clearly states that for the offences committed under Sections 3,5,7 and 9 of the Act, the Special Court shall presume, that such persons have committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved.

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ii) The Investigating Officer (L.W.50) has obtained opinion of Expert-L.W.39-Dr.Sudha, Assistant Professor, who, basing on the reports ol the inquest, FSL, PME and treatment of the victim/ deceased, had opined that the cause of death of the victim/deceased girl u,as due to urosepsis and Cerebellar infraction consequent to dnLg facilitated^{(aggrauated)sexual assault.}

¶42

l\t ..1 C^p N().1512 2()ll

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iii) The allegations against the accused are serious^{in nature} where on account of aggravated^{penetrative sexual} assault on a minor, it has resulted in her^death.

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iv) The witnesses of the Orphanage are^{of tenderage and if} the accused are on bail, there is every^{possibilityof} putting them under fear, thereby denying a free and fair trial and as per the provisions of the Act,^{rights of the} victim and witnesses should be^{protected againstany} kind of intimidation or coercion or^inducementor violence or threat of violence, which can be done^{only if} the accused are denied bail during^{the course of trial}

¶46

As stated above, the Court below^{vide order dated}

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28.12.2O2O cancelled the bail granted to the^petitioner herein/A. 1 and other accused on the^{follou,'ing grounds,:-}

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i) As per the record, statements of the victim and^other inmates of the Orphanage and medical^{opinionclearly} shows prima facie involvement of the accused in^the present crime.

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ii) Victim died during the course of investigation.

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iii) The deceased died due to urosepSis and Cerebellar infraction consequent to drug facilitated^(aggrauated) sental assoult.

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iv) L.w.39-Assistant Professor, basing on the reports of inquest, FSL, PME and treatment of record of the^victim, gave said opinion but while granting bail to the accused, there was a spread of pandemic of Novel Corona^virus (COVID-I9) and there was no possibility of conducting physical hearing of the cases by fixing the schedule but nou'thc physical hearing is also started arrd the medical evidence and gravity of thc oflenccs l.'as not blough t to the notice of the Court while granting bail. Having considered the pima facie evidence against the^accused and their involvement, the Court has cancelled the bail.

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KL.J Crl.p No.l572_:(l2l

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Feeling aggrieved by the said order, dated 28.12.2020, the petitioner herein/A.1 in Cr.No.218 of 2O2O filed present Criminal Petition under Section 482 of the Cr.P.C. to^quash the sarne on the following grounds:-

¶56

i) The Court below has granted bail to the petitioner herein vide order dated 27 .IO.2O2O by considering the fact that the Investigating Officer has completed investigation, submittecl dralt charge sheet to the Public Prosecutor for finalization and that the Public Prosecutor has already l'inalized the same.

¶57

ii) The pctitioner herein /A. 1 was in remand for 82 days

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iii) The Court 6.16q,, while granting baii, has considered death of the victim i.e. dated 12,O8.2O2O, medical evidence and statements of inmates of the victim (orphan).

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i') The Court below, while considering the entire facts, granted bail to the petitioner and there is no error in it.

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v) The grounds on which the prosecution sought to cancel bail are untenable.

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vi) The Court below has considered all the said^grounds on which the prosecution sought cancellation of bail while grantin! bail.

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Learned counsei for the petitioner has also^placed reliance on the principie laid down by the Hon'ble^{Apex Court} and other High Courts, to consider the factors while^canceling bail granted to the petitioner.

¶63

B. On the other hand, learned Public Prosecutor opposed the present application contending that the victim died during the course of investigation. A11 the witnesses are inmates of the said Orphanage and they are orphans. The petitioner herein/A.1

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K L.J 6 Crl.p.No.357? 2021

¶65

and other accused are financially and politically sound and there is every possibility of influencing and threatening the witnesses. In which case, there would not be a fair trial. The Court below considering the seriousness of the offences and other aspects, cancelled the bail granted to the petitioner herein vide impugned order in which there is no error.

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g.With the said submissions, learned Public Prosecutor sought to dismiss the present petition.

¶68

A perusal of the entire material would reveal that the petitioner herein is accused No.1 in Cr.No.218 of 2020. The offences alleged against the petitioner herein/A.1 are under Sections 376(3), 342,323,328, 506 and i09 of IPC, and under Section 5(1) read with 6 of the Act. The allegations against the petitioner herein/A.1 are that he is donor to the said 'Maruthi Orphanage' which was founded by A.2 and A.3 and on the said pretext, A.1 used to visit the said 'Maruthi Orphanage'and with the help of A.2 and A.3, used to sexually assault on the victim who is a minor and orphan. The modus operandi adopted by A. 1 is also specifically mentioned therein. He used to give drink fiuice)^{to the victim} and used to commit sexual assault on her when she was in unconscious state. During the course of investigation, the victim died. There is a_Iso an allegation that the A. 1 used to pay money to A.2 and A.3 whenever he visits to the said Orphanage. The victim has given her statement specifically to the said effect. According to this Court it is a 'heinous crime'.

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KL,J Crl^{p.No.3572_2021}

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1 l.During the course^{of arguments, it is broughtto the} notice of this Court^{that the Investigating Officer has already} filed charge sheet in^{Cr.No.218 of 2O2O and the same was taken} on file vide S.C.No.^{126 of 2O2O. The Court below has fixed} schedule from^{19.07 ,2021 onwards.}

¶72

Since the^{lis involved in the present CriminalPetition is} for cancellation^{of bail, it is relevantto mention the factors that} are to be considered^{while granting bail and while cancelingbail} granted to the accused.^{The said lis is no more res integra'}

¶73

i3. The Apex Court^{in Dr. Narendra K' Amin v' State of} Gujaratr, the Apex^{Court laid certain guidelinesfor cancellation} ofbail.Italsoheldthatoncebailgrantedcanbecancelledonly on the complaint^{that the accused has violated the conditions} imposed by the Court^{while grantingthe bail' The bail once} granted cannot be^{cancelledon flimsy groundsand the Court} has to specifically^{mention the reasons for cancellationof bail'}

¶74

The Apex Court^{in Abdul Baslt Vs' Mohd'Abdul} Kadir Chaudharyz^{5.6 an occasionto deal with Section 439 (21} of Cr.P.C. and^{also the powersof the HighCourts andSessions} Courts for cancellation^{of bail and held that since there is no} express provision^{for review of order grantingbail exists under} the Cr.P.C., the^{HighCourt becomes functus officio and Section} 362 of Cr.P.C.^{applies hereinbarring the review of the judgment} and order of the^{Court grantingbail to the accused'Even though} the cancellation^of bail^{rides on the satisfaction and discretion of}

¶75

'2009^{(3) SCC (Crl.) 813} . (2ot4l 10 scc 754

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KL,J Crl.p.No.3572_2021

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the Court under Section 439(21 of Cr.P.C. It does not vest the po!/er of review in the Court which granted bail. Ever-r in the light of fact of misrepresentation by the accused during the grant of bail, the High Court could not have entertained the informant's prayer by sitting in review of its judgment by entertaining miscellaneous petition. With the said findings, the Apex Court has set aside the order of cancellation passed by the High Court.

¶79

In Dolat Ram Vs. State of Haryana3, the Apex Court held that rejection of bail in a non-bailable case at the initial stage and the cancellation of bail already granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for al1 order directing the cancellation of the bail, already granted. Generallv speaking, the grounds for cancellation of bail, broadlv (ilh-rstrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course ofjustice or abuse of the concession granted to the accused in any manner. The satisfaction of the Court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstarces have rendered it no longer conducive to a fair trial to allow the

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'(199s) 1 SCC 349

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KL.J Crl.p.No.35?2-2021

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accused to^{retain his freedom by enjoying the concession of bail} cluring tire trial.

¶84

In JanaPala^{Krishna Vs' State} of A.P.q,^{the High} court of Judicature^{at Hyderabadfor the state of Telanganaand} the State^{of Andhra Pradesh held that the remedy challenging} the order^{of cancellation of bail is to move an application under} Section 482^{of Cr.P.C.}

¶85

In V.Chinna^{ReddyVs' N'Vidyasagar Reddys'the} High Court^{of A'P., had an occasionto deal with the scopeand} ambit of Section^{439(21 of Cr'P'C'' and held that the Sessions} Court or High^{Court has no jurisdiction to pass an orderof} cancellation^{under Section439(21 of Cr'P'C' at its whims and} fancy. It can^{cancelonly on specificgrounds that the accused} has committed^{misconduct or misuseof the terms of the bail or} that the^{accused is tryingto abscondafter the charge-sheet is} filedorthreateningorinfluencingortamperingwiththe evidence or interfering^{with the investigation or obstructingthe} iuclicial^{processor otheru'ise misusing or abusingthe bail' The} fact that the^{Magistrateis committingthe accused to Sessions} court for^{trial does not from a valid ground for the Sessions} Judge of the^{High Court to remandthe accused to custody' as it} does not constitute^{a ground for cancellationof bail whichwas} of bail can^{onlY be on the} already^{granted' The cancellation} ground known^{to law.}

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'(2015)^{l ALD (CrI)409} '1982^{Cr1,LJ 2183}

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KL,J C,1.p.No.3572_2021

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In Neeru Yadav Vs. State of U.P.6, the Apex Court

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held as follows:

¶91

"lt is a well-settled principle of lau' that whilc dealing with an application for grant ol bail, it is the duty of the Court to take into consideration certain factors and tl'rey basically are: (i) the nature of accusation and the severity of punishment in cases of conviction and the nature of supporting evidence, (ii) reasonable apprehension of tampering with the witnesses for apprehension of threat to the complainant, and (iii) prima facie satisfaction of the Court in support of the charge. The decision in Raj ba1lav Prasad emphasises that while the liberty of the subject is an important consideration, the public interest in the proper administration of criminal justice is equally important: "...undoubtedly the courts have to adopt a liberal approach while considering bail applications of accused persons. However, in a given case, if it is found that there is a possibility of interdicting fair trial by the accused if released on baii, this public interest of fair trial u,ould outweigh the personal interest of the accused while ur-rdertaking the task of balancing the liberlv of the accused on the one hand and interest of the society to have a fair trial on the other hand. When the u'itnesses are not able to depose correctly rn the court of law, it results in low rate of conviction and many times even hardened criminals escape the conviction. lt shakes public confidence in the criminal justice delivery system. It is this need for larger public interest to ensure that criminal justice delivery system works efficiently, smoothly and in a fair manner that has to be given prime importance in such situations. "

¶92

In Kanwar Singh Vs. State of RajasthanT, the Apex

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Court had an occasion to deal with the powers of the Court of

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" AIlt 20t5 sc lTol

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KL.J Crl^p \o.35?2²⁰²¹

Sessions^{and also High Court under Section439 of the Cr'P'C'}

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and held^{as follows:}

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"sectiot-t 439 of the^{Code confers very rvidepo'tvers} on lhe High^{Court and the Court of Sessions regarding} bail. But,^{while granting bail' the High Court and the} Sessions Court^{are guidedby the same considerationsas} othercourts.Thatistosay'thegravityofthecrime'the character of^{the evidence, positionand status of the} accused with^{referenceto the victimand witnesses' the} likelihood of^{the accusedfleeing from justice and} repeating^{the offence,the possibilityof his tampering with} thewitnessesandobstructingthecourseofjusticeand to be^taken into such other^{grounds are required} consideration.^{Eachcriminal case} presents its own peculiar factual^{scenario and, therefore'certaingrounds} peculiar to a^{particularcase may have to be takeninto} account^{by the court."}

¶102

20. In Central^{Bureau of Investigation'Hyderabad Vs'}

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Subramani^{Gopalakrishnans, the Apex Court held as follou's:}

¶104

"lt is also relevant^{to note that there is difference} between^{yardsticksfor cancellationof bail andappeal} against the^{order granting bail' Verycogent and} overwhelming^{circumstancesare necessaryfor an order} directing the^{cancellation of bail alreadygranted'} Generally^{speaking,the grounds for canceilation of bail} are, interference^{or attempt to interfere with the due} course of^{administrationof justice or evasionor attempt} to evade^{the due courseof justiceor abuse of the} concessions^{granted to the accused in any manner'These} are al1 only^{few illustrative materials'The satisfactionof} the Court^{on the basis of the materials placed on record} of the^{possibility of the accused abscondingis another} reason^{justifyingthe cancellationof bail ln other words'}

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'2012lr2\ scc 180

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, (2011) 5 SCC 296

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KL,J Crl.p.No.3572 2021

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bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom bv enjoying the concession of bail during the trial."

¶110

The Apex Court, in Ms.X Vs. The State of Telanganas, aJter referring the principles held by it in Neeru Yadav's case (supra), Kanwar Singh's case (supra), Dolatram's case (supra) and Subramani Gopalakrishnan's case (supra) and also the facts of the said case, held that the parties there had consensual relationship between them and the same was mentioned in the charge-sheet thereon. By referring the same, the Apex Court held that the Court must bear in mind that it is a settled principle of law that bail once granted should not be cancelled unless a cogent case, based on a supervening event has been made out.

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22, On examining the fact that the Court below cancelled the bail gralted to the accused on misrepresentation of fact and holding that there !'as no misrepresentation of fact, this Court vide order dated 09.11.2O2O in Crl.P.No.2B20 of 2020 quashed the cancellation of bail order by the Court belou'.

¶112

In State Vs. Sanjeev Kumar Chawlaro, the Delhi High Court, referring to the various judgments of the Hon'b1e Apex Court with regard to factors to be considered while granting bail and while canceling the bail, laid down certain principles and held that the bail can be carcelled where the order granting bail

¶113

e Criminal Appeal No.71612018, dated 17.05.2018

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ro Laws (DLH) 2020 54

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KL.J Crlp.No 35?2 2021

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suffers from serious infirmities^{resulting inmiscarriageof} justice, where the grant of bail was not appropriate in the first place, given the very serious nature ol^{the charges against the} accused which disentitles him for^{bail and thus cannot be} justified and that the order granting bail is apparently whimsical, capricious and^perverse in^{the facts of the given case.}

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In Myakala DharmaraJam^{Vs. State of Telanganarl,} the Honble Apex Court held that^{rejectionof bail stands on one} footing while cancellation of bail is harsh^{orderbecause it} interferes with the liberty of^the individual^{and hence it must not} be lightly resorted to. Each criminal^{case presents its o',r'n} peculiar factual scenario and, therefore,^{certain grounds} peculiar to the factors to be considered while^{granting bail ha"'e} l:eer.r held b-v the Hon'ble Apex Court to^{be the gravity of the} crime, the character of the^{evidence,position and status of the} accused with reference to the^{victim and rn'itnesses,the} likelihood of the accused fleeing^{from justiceand repeatingthe} offence, the possibility of his tampering^{with the evidence and} witnesses, and obstructing the^{courseof justice etc. On the said} ground, the bail can be cancelled.^{The Hon'ble Apex Courthas} already considered the^{guidelines laid down by it in Raghubit} Singh Vs. State of Biharl2

¶119

ln Anil Kumar Yadav^{Vs. State (Nct) of Delhil3' the} Hon'ble Apex Court, referring to the^{principleiaid down by it in}

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(2010) sc('(2) 74.3

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( 1936)^.l S( C^.tll I

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l.aws^(SC) l0I 7 I l2 I

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Kl ..1 Crlp No 1572 2021

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1.+

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various judgments, including relevant considerations for granting bail, principle laid down by it in State of U.P.through CBI Vs. Amarmani Tripathir4 and other judgments held that the bail can be cancelled when there is reasonable apprehension of tampering the witnesses or apprehension of threat to the complainant. in the said judgment, the Honble Apex Court has also referred the principle laid down by it in Kanwar Singh (supra).

¶126

Referring to Masroor Vs. State of Uttar Pradeshts, State of Bihar Vs. Rajballav Prasadr6 the Hon'ble Apex Court held as follows:-

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"We are conscious of the fact that the respondent is only an under-trial and his liberty is also a relevant consideration. However, equally important consideration is the interest of the society and fair trail of the case, Thus, undoubtedly the courts have to adopt a liberal approach while considering bail applications of accused persons. However, in a given case, if it is found that ttrere is a possibility of interdicting fair trial by the accused if released on bail, this public interest of fair tria.l would outweigh the personal interest of the accused while undertaking the task of balancing the liberty of the accused on the one hand and interest of the society to have a fair trial on the other hand. When the witnesses are not able to depose corrcctly in the court of law, tt results in low rate of conviction and ma-ny times evcn hardened criminals escape the conviction. It shakes public confidence in the criminal justice delivery system, It is this need for larger pubtic illterest to ensure that criminal justice delivery system works efficiently, smoothly and in a fair manner that has to be given primc importalce in such situations. After all, if there is a threat to fair tria.l because of intimidation of witnesses etc., that would

¶128

''^{(zoo5) 8 scc 2t}

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r5 lzooey t+ scc zto

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'o^{1zot 7y 2 scc l?8}

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KL.J (',lp \o :15?l :rr:l

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happen because^{of wrongdoing of the accused himself' and the} consequences thereof,^{he has to suffer."}

¶135

27 . After referring^{to variouscase laws, the Hon''ble Apex} Court, observed that^{in criminaltrial, witnessesmust be ableto} depose without fear,^{freely and truthfully. In RaJballavPrasad} (supra), the Apex Court^{cancelledthe bail granted to the accused} thereon. Paragraph^{No.24 of the judgmentitwas heldas} follou,s:-

¶136

" As indicated by us in the^{beginning,prime} consideration^{belore us is to protect the fair trial and} ensure that^{justice is done. This may happen oniy lf the} witnesses are able to^{depose without fear, freely and} truthfully and this^{courtis convinced that in the present} case, that can^{be ensuredonly if the respondentis not} enlarged on bail.

¶137

The importance^{of fair trial was emphasized in} Panchanan Mishra^{Vs. DigambarMishrarz whilesettingaside} the order of the^{High Court grantingbail in the following terms:-}

¶138

'We have^{givenour carefulconsiderationon the rival} submissions made^{by the counsel appearingon either side'} The object underlying^{the cancellation of bail is to protectthe} fair trial and secure^{justicebeing done to the societyby} preventing the accused who^{is set at liberty by the bail order} from tampering with^{the evidencein heinous crime and if there} is delay in such a^{case the unclerlying object of cancellation of} bail practically^{loses a-ll its purpose and signrficance to the} greatest prejudice ancl the^{interestof the prosecution lt hardly} requires to be stated^{that once a personreleasedon bail in} serious criminal^{caseswhere the punishment is qr-ritestringent} and cleterrent, the^{accusedin order to get awayfromthe} clutches of the^{same indulgeinvarious activitieslike} tampering with the^{prosecution witnessesthreatening the}

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''^{(:oo5)3 sccte3}

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KI-.J ( rl.p.N(, 357: 202l

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family members of the^{deceased victimand also create} problems of law and order situation'"

¶143

29. In Dharmander^{Singh Vs. State (Govt'of Nct,}

¶144

Delhitre, the High Court,^{had an occasion to deal with the} factors for consideration of^{bail and also the factors for} cancellation of bail^{and also consideredsection29 0f the Act. It} has also relied upon^{the judgmentof the Hon'ble ApexCourt in} Moti Ram Vs. State of^{M.P.le, held that a very important} consideration for^{grantof bail is to allow an accused the libertv} to prepare his^{defence,so that this right guaranteed under} Article 21 is real and^{not merely chimerical.Commencing on the} consequences of^{pre-trial detention, in Motiram (supra),the} Hon'b1e Apex Court^{held as under:-}

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"The consequences^{of pre-tria1detentionaregrave'} Defendants presumed innocent^{are subjected tothe} psychological and physical deprivatlons^{of jail life, usually} under more onerous^{conditjons thalare imposed on} convicted defendants.^{The jaileddefendant loseshis job is} he has one and is^{prevented from contributingto the} preparation of his defence. Equally^{importa-nt,the burden of} his detenLion frequently^{falls heavily on the innocent} members of his family."

¶146

Considering the^{variousjudgments, includingSection29}

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of the Act, the Delhi High^{Court held as follovvs:-}

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"68. In vievr,' of the above^{discussionand after} considering the opinion^{of the Supreme Court and the vieu's} taken by the other High Courts,^{this court ls persuaded to} hold that the^{presumptionof guilt engrafted insection} 29 gets triggered and applies^{only once trial begins, that is}

¶149

r8 Laws (DLH) 2020 9156 'o^{1978(4) scc4?}

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KL,., Crl.p No.3572_2021

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after charges are framed against the accused but not before that. The significance of the opening words of section 29 "where a person is prosecuted" is that until charges are framed, the person is not being prosecuted but is being investigated or is in the process of being charged. Accordingly, if a bail plea is considered at any stage prior to framing of charges, Section 29 has no application since upto that stage an accused is not being prosecuted.

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Therefore, if a bail plea is being considered before charges have been framed, section 29 has no application; and the grant or refusal of bail is to be decided on the usual and ordinary settled principles."

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In vieu of the authoritative law laid dou'n bv the Hon'ble Apex Court and various High Courts, it is not in dispute that a petition under Section 482 of the Cr.P.C. is maintainable where the cha-llenge is of the order of cancellation of bail by the trial Court.

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The above said discussion would also reveal that bail can be cancelled on the grounds of cogent and overwhelming reasons and by specifically mentioning the reasons for cancellation of bail. The possibility of interdicting fair trial is also a ground for cancellation of bail. Public interest of fair trial would outweigh the personal interest of the accused. Bail can be cancelled when there is reasonable apprehension or tampering the witnesses or apprehension or threat to the complainant.

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In vierv of the above said discussion, coming to the lacts otl hand, AS discussed supra, pima facie, there are serious allegations against the petitioner herein. The offences committed by the petitioner herein are 'heinous offences'. The victim was an orphan, 14 years old. The modus operandi adopted by the

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petitioner herein/A. 1 in commission of offence is also specifically mentioned in the complaint as u,e1l as in the state ments o[ the witnesses including the victim. It is also relevant to note that the victim died during the course of investigation on 12.O8.2O2O. As per the opinion of L.W.39, the Assistant Professor, the cause of death of the victim was due to urosepsis and Cerebellar infraction consequent to drug facilitated (aggrauated) sental assault.

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The petitioner herein with the help of,A.2 and A.3 used to visit the said 'Maruthi Orphanage', where the victim used to stay. He used to pay money to A.2 and A.3 on the name of donation. The victim ar-rd other inmates of the said Orphanage also specifically stated that they have seen A.1 paying mone],' to A.2 and A.3 whenever he visits to the said Orphanage home. A.2 arld A.3 used to inform the victim to sleep with the petitioner/A. 1. They have also threatened the victim not to reveal the said fact to anybody. A.2 and A.3 used to send the victim to the Sth floor of the said building. The petitioner/A. 1 used to give drink (juice) to the victim and after consuming the said juice, she used to fell unconscious. Under the said unconscious state, the petitioner/A. 1 used to exploit the victim sexuallv. Thus, according to this Court, it is a heinous offence.

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A perusal of the record would also reveal that the vlctlm died du ring the course of investigation on 12 .O8.2O2O . The Investigating Officer has recorded statements of the

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inmates, who are orphans, of the said^.Maruthi Orphanage,. They are staying in the said 'Maruthi Orphanage, to which the 4.2 aad A.3 are founders. The petitioner/A. i is a donor. Thus, the petitioner herein and A.2 and A.3 are financially and politicallSr sound and thus there is every possibility of the petitioner/A. 1 tampering with the evidence and tampering with the witnesses and there is possibility of interdicting fair tria1. As held by the Honble Apex Court public interest of fair trial would outweigh the personal interest of the petitioner/A. J.

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The Court below, considering all the facts including the principle laid down by the Apex Court in Anil Kumar yadav (supra), rightly cancelled the bail granted to the petitioner herein and other accused vide impugned order d,ated 28.12.2020. According to this Court, there is no error in it. It is a reasoned and well founded order. It does not warrant any interference by this Court in invocation of inherent powers under Section 4g2 of the Cr.P.C. Thus, the petitioner herein has failed to make out a case to interfere with the impugned order and the same is liable to be dismissed.

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37.In the result, the Criminal Petition is dismissed. However, considering the fact that trial Court has fixed schedule in S.C.No.126 of 2O2O from t9.O7.2O2I, the petitioner herein/A. 1 is in jail from 28.12.2O2O, the trial Court shall make an endeavour to dispose of the said Sessions Case as expeditiously as possible by

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following Standard Operating Procedure (SOP) issued by this Court il"om time to time

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As a sequel, miscellaneous petitions, if any, pendir-rg in

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the Criminal Petition shall stand closed.

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SDI I. NAGA LAKSHMI ASSISTANT REGISTRAR

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