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IN THE HIGH COURT OF GAUHATI
N. Kotiswar Singh, Mir Alfaz Ali, JJ.
Munni Effa - Appellant
Versus
State Of Arunachal Pradesh - Respondent
Criminal Revision Petition No. 59 of 2020
Decided On : 17-12-2020
RAPE - Anticipatory Bail - 376(1)/354/506 IPC - The court discussed the factors for consideration of anticipatory bail u/s 438 CrPC, the nature and gravity of the accusation, the antecedents of the applicant, the possibility of the applicant to flee from justice, the possibility of the accused's likelihood to repeat similar or other offences, the impact of grant of anticipatory bail, the court's evaluation of the entire available material against the accused, the balance between no prejudice to the investigation and prevention of harassment, the court's consideration of reasonable apprehension of tampering of the witness or threat to the complainant, and the court's consideration of frivolity in prosecution. The court also discussed the parameters for grant of anticipatory bail in a serious offence, the requirement to record reasons for granting the extraordinary relief of pre-arrest bail, and the grounds for cancellation of bail. The court emphasized that bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances had rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. The court also highlighted the need for reasons for prima facie concluding why bail was being granted, particularly where an accused was charged of having committed a serious offence.
Fact of the Case:
The petitioner, an In-Charge Medical Officer, alleged that an MLA forcibly committed rape on her. The respondent filed an application for anticipatory bail, which was granted and made absolute by the Sessions Judge. The petitioner challenged the order, alleging that the bail was illegal and improper, and that the respondent was trying to exert pressure on her to compromise the case and influence the witnesses.
Finding of the Court:
The court found that the impugned order of anticipatory bail suffered from serious infirmity and illegality for not recording proper reason and not considering the relevant materials. The court also noted that the order was devoid of any reasoning and was a case of total absence of application of mind. The court set aside the impugned order and remanded the matter to the learned Sessions Judge to consider the bail of the respondent No. 2 afresh on merit, by taking into account all the materials brought on record by way of filing charge-sheet.
Issues: The issues involved the legality and propriety of the impugned order of anticipatory bail, the alleged pressure on the petitioner to compromise the case, and the influence on the witnesses.
Ratio Decidendi: The court emphasized the need for reasons for granting bail, the parameters for grant of anticipatory bail in a serious offence, and the grounds for cancellation of bail. The court also highlighted the requirement to consider the gravity and nature of the offence, prima facie case against the accused, and the position and standing of the accused while granting or refusing anticipatory bail.
Final Decision: The impugned order of anticipatory bail was set aside, and the matter was remanded to the learned Sessions Judge to consider the bail of the respondent No. 2 afresh on merit, by taking into account all the materials brought on record by way of filing charge-sheet.
JUDGMENT
Mir Alfaz Ali, J. - This revision is directed against the order dated 28-10-2019 passed by the learned Sessions Judge, West Sessions Division, Yupia, Papumpare, Arunachal Pradesh in Anticipatory Bail Application No. 112/2019.
2. The facts giving rise to the present revision are that :-
An FIR was lodged on 13-10-2019 by the petitioner with Women Police Station, Itanagar. It was alleged in the FIR, that the petitioner was working at Primary Health Centre, Bameng as In-Charge Medical Officer. On 12-10-2019, the respondent No. 2, herein, who was an MLA from Bameng constituency called her to discuss about certain issues relating to Bemeng Primary Health Centre and accordingly, she came to PXBSS hotel as per direction of the respondent No. 2. The victim was called to the hotel room by the respondent No. 2, where instead of discussing the issue of the primary health centre, the respondent No. 2 insisted her to consume liquor and forcibly committed rape on her. She was also assaulted by the respondent No. 2 on her raising objection to the sexual activities. On the basis of the said FIR, police registered Itanagar P.S. case No. 83/2019 u/s 376 (1)/354/506 IPC. Having come to know about the registration of police case, the respondent No. 2, herein, filed an application u/s 438 CrPC before the learned Sessions Judge, West Sessions Division, Yupia, Papumpare, Arunachal Pradesh, which was registered as A.B. No. 112/2019. Learned Sessions Judge initially granted interim pre-arrest bail by order dated 16-10-2019. Thereafter, the impugned order dated 28-10-2019 was passed, whereby the interim order of pre-arrest bail was made absolute.
3. Aggrieved by the order of pre-arrest bail, the informant/petitioner has preferred the instant application u/s 397 read with Section 401 as well as Section 439 (2) and 482 CrPC praying for setting aside the impugned order and cancellation of the pre-arrest bail granted to the respondent No. 2.
4. In the revision petition, the petitioner/informant stated that the impugned order of pre-arrest bail was illegal, improper and perfunctory, as the learned Sessions Judge passed the impugned order hurriedly granting pre-arrest bail to the respondent No. 2 in a serious offence like rape without considering the objection raised by the learned Public Prosecutor and without taking into consideration the relevant materials. It was also stated that during the pendency of the bail application at the instance of the respondent No. 2, the Chairman, Pordung Welfare Society had issued two letters to the Chairman of Pangteh Welfare Society requesting for an amicable settlement of the issue between the petitioner and the respondent No. 2 through local ordeal and thereby creating pressure on the petitioner to settle the matter outside the court. It was further stated that at the behest of the respondent No. 2, several persons approached the petitioner and her husband to exert pressure upon them for withdrawal of the FIR.
5. The respondent No. 2 in his affidavit-in-reply denied the allegations made in the FIR and stated that physical relationship between the petitioner and the respondent No. 2 was consensual and that the consensual sexual activities between two adults do not constitute any offence. It was also stated that the respondent No. 2 never pressurized or tried to influence the petitioner or her husband to withdraw the case. As regard the letter issued by Produng Welfare Society, it was stated that the respondent No. 2 had no role in issuing the said letters, inasmuch as, the same were issued by one community to the other community as per the tradition of "Nissi" community.
6. The SIT also filed an affidavit, wherein it was stated that there was sufficient evidence including the injury on the body of the victim and investigation revealed sufficient materials against the respondent No. 2. It was also alleged that the respondent No. 2 being a MLA, there was possibility of influencing the witnesses by inducement or threat b
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