Bail; State of Bihar Vs. Rajballav Prasad @ Rajballav Pd. Yadav @ Rajballabh Yadav [Supreme Court of India, 24-11-2016]

Protection of Children from Sexual Offences Act, 2012 – Ss. 4, 6 & 8 – Bail – threats to the prosecutrix as well as her family members – the High Court should not have granted bail.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

(A.K. SIKRI) AND (ABHAY MANOHAR SAPRE) JJ.

NOVEMBER 24, 2016

CRIMINAL APPEAL NO. 1141 OF 2016

STATE OF BIHAR …..APPELLANT(S)

VERSUS

RAJBALLAV PRASAD @ RAJBALLAV PD. YADAV @ RAJBALLABH YADAV …..RESPONDENT(S)

J U D G M E N T

A.K. SIKRI, J.

Respondent herein is facing trial in Mahila Police Station Case No. 15 of 2016, wherein he is charged for committing offences under

Sections 376, 420/34, 366-A, 370, 370-A, 212, 120-B of the Indian Penal Code

Sections 4, 6 and 8 of the Protection of Children from Sexual Offences Act, 2012

(“POCSO Act” for short) as well as

Sections 4, 5 and 6 of the Immoral Traffic Act, 1956

He is one of the co-accused in the said trial. FIR in this behalf was registered on the basis of written complaint of the prosecutrix Preeti Kumari (minor) on 09.02.2016. During investigation, the respondent was identified as the main accused having committed the rape on the said minor. However, since at that time, he was allegedly absconding, the trial court issued process under

Section 82 of the Code of Criminal Procedure, 1973

(“Cr.P.C.” for short) and thereafter on 27.07.2006 issued process under Section 83 against the respondent. At that stage, apprehending his imminent arrest, the respondent surrendered before the trial court on 10.03.2016 and was taken into custody. After conclusion of the investigation, chargesheet in the case was filed on 20.04.2016 and the charges were framed on 06.08.2016.

2) Pending trial, the respondent filed bail application before the learned Additional Sessions Judge which was heard and dismissed by the trial court vide order dated 30.05.2016. Obviously, dissatisfied with this dismissal order, the respondent approached the High Court for grant of bail which came up for hearing before the High Court on 27.07.2016. However, permission was sought to withdraw the said bail application and accepting this request, the bail petition was dismissed as withdrawn on 27.07.2016. Within three weeks thereafter i.e. on 19.08.2016, the respondent preferred another bail petition before the High Court. This time he has succeeded in his attempt as the High Court has, vide judgment dated 30.09.2016, directed release of the respondent on bail. Certain conditions are also imposed while granting this bail. It is the State which feels aggrieved by the impugned order granting bail to the respondent and has challenged this order in the present proceedings. Notice was issued in the SLP on 07.10.2016 for actual returnable date i.e. 17.10.2016. Thereafter, the material date of hearing is 08.11.2016 when the following order was passed:

“We have heard learned counsel for the parties for some time. In the instant case, the High Court has granted bail to the respondent herein during the pendency of the trial against the respondent who is facing the charges under Sections 376, 420/34, 366-A, 370, 370-A, 212, 120-B of the Indian Penal Code as well as the charges under Section 4, 6 and 8 of the POCSO Act, 2012. He is also facing trial for offences under Sections 4, 5 and 6 of the Immoral Traffic Act, 1956. The case is pending in the Court of Additional Sessions Judge-Ist-cum-Special Judge, Nalanda at Biharsharif. The deposition of the Prosecutrix is yet to be recorded. Without making any observation at this stage, we are of the opinion that in order to enable the Prosecutrix to give her statement fearlessly and without any pressure, it would be necessary that she deposes when the respondent is in custody. For this reason, we suspend the judgment and order dated 30th September, 2016 passed by the High Court granting bail to the respondent herein for a period of two weeks from the date the respondent is taken into custody to enable the Prosecutrix to give her evidence. We direct that the respondent shall surrender to the Trial Court tomorrow i.e. 09.11.2016 and would be taken into custody in the same manner he was facing incarceration before he was granted bail by the High Court, for a period of two weeks. The Trial Court is impressed upon to start recording the evidence of the Prosecutrix immediately and endeavour to complete the same within the said period of two weeks. We also hope and expect that the respondent shall not try to exert any pressure, directly or indirectly, upon the Prosecutrix or other prosecution witnesses. List the matter for further directions on 23.11.2016. Dasti, in addition, is permitted.”

3) Pursuant to the aforesaid order, the respondent surrendered and period of two weeks expired yesterday i.e. on 23.11.2016 when this appeal was also finally heard. During this period, statement of prosecutrix has been recorded and she has been cross-examined as well.

4) Mr. Gopal Subramaniam, learned senior counsel appearing for the appellant submitted that since other witnesses remained to be examined are also material witnesses, it was necessary, in the interest of justice, that respondent remains in jail during the period of trial. He, therefore, impressed the Court to hear the appeal on merits as according to the appellant, in the facts and circumstances of this case, bail order should not have been passed by the High Court and it has committed grave illegality in passing such an order. In view thereof, we heard the matter finally and both the sides advanced detailed submissions.

5) It was argued by Mr. Subramaniam that the impugned judgment was perverse as it did not take into consideration relevant factors which needed to be kept in mind while deciding as to whether bail is to be granted or not, even though such relevant factors were taken note of. It was further submitted that the High Court started its discussion by observing that presumption of innocence would continue to run in favour of the accused (respondent herein) until the guilt is brought home. Thereafter, it discussed the merits of the case. In the process, as per the appellant, the Court failed to satisfactorily address the pivotal and relevant considerations for grant/refusal of the bail, namely, whether the respondent was likely to influence the witnesses or the trial in case he is released on bail pending trial or whether the respondent was likely to abscond and not available for trial. The learned senior counsel argued that having regard to the background of this case, it could clearly be discerned that there was reasonable apprehension that there was a likelihood intimidating and coercing the witnesses by the respondent as not only respondent was an influential person, being MLA of the area in question, but had in fact, made such attempts in the past. Complaints were made by the prosecutrix and family members. It was also pointed out that the Court also failed to notice that on an earlier occasion, to secure his attendance, process under Section 82 of Cr.P.C. had to be initiated. Another submission of learned senior counsel was that when the first bail application was dismissed by the High Court hardly three weeks ago i.e. on 27.07.2016, there was no change in the circumstances from that date till the filing of the second bail application on 19.08.2016 in which the impugned order has been passed. Learned senior counsel also pointed out that bail application of co-accused had been refused by the High Court on 20.08.2016 and while doing so, High Court had directed to conclude the trial in terms of POCSO Act without unnecessary delay, on day to day basis. All these aspects, according to the appellant, are conveniently bypassed by the High Court, thereby making the order vulnerable to challenge. Few judgments were cited in support of the proposition that in such a situation, this Court can interdict with the order of grant of bail.

6) It may also be pointed out at this stage that in the special leave petition, another ground taken to challenge the impugned order is that when earlier application was dismissed by a particular Judge of the High Court on 27.07.2016, as per the directives of this Court, second application should also have to be listed before the same Judge. However, the second application was taken by the Chief Justice himself wherein the impugned order has been passed rather than assigning it to the Judge who had passed the order on 27.07.2016. However, Mr. Subramaniam did not press this ground too hard, except submitting that propriety demanded that matter is posted before the same Judge who had passed the order on 27.07.2016 before whom the first bail application had come up for hearing.

7) Mr. Dushyant Dave, learned senior counsel appearing for the respondent, made a passionate plea that this special leave petition is required to be dismissed only on the ground that the appellant has taken a false plea regarding assigning bail application by the said Court to itself, rather than sending it to the same Judge who had heard first bail application. He pointed out that in the impugned order itself, it has been observed that since no decision on merit of the first bail application was taken which was dismissed as withdrawn by order dated 27.07.2016, there was no legal impediment in proceedings with the second bail application and more pertinently statement of Additional Advocate General who appeared on behalf of the State in the High Court was specifically recorded to the effect that he had no objection to the consideration of the bail of the respondent by the said Court. It is only after recording this that the bail application was taken up for hearing and order was passed. It was, thus, submitted that the State, which was supposed to act more responsibly than an individual person, had not come to the Court with clean hands and tried to prejudice this Court by suppressing the aforesaid fact while taking such a plea. Reference was made to the judgment of this Court in

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