Bail may be granted when the prosecution fails to provide substantial evidence, and there is no apprehension of tampering with witnesses or fleeing from justice.

Headnote:(A) Code of Criminal Procedure, 1973 - Section 439 - Bail application - The petitioner was arrested for offences including sexual assault and threats to circulate obscene material - The prosecution failed to recover any obscene videos from the petitioner’s possession - The petitioner argued that the allegations were false and arose from a strained relationship with the prosecutrix - The Court found no apprehension of tampering with evidence or fleeing from justice - (Paras 1-10)

(B) Bail - Considerations for granting bail - The Court must consider the nature of the allegations, the evidence available, and the conduct of the accused - In this case, the absence of evidence and the conclusion of the investigation warranted the grant of bail. (Paras 8-9)

Facts of the case:
The petitioner was arrested in connection with allegations of forcible sexual assault against a mature married woman, who claimed threats of circulating her obscene videos. However, no such videos were recovered from the petitioner. The petitioner contended that the allegations were false and stemmed from a prior consensual relationship.

Findings of Court:
The Court found that there was no evidence of the petitioner influencing witnesses or tampering with evidence, and thus, granted bail.

Issues: The main issues included the credibility of the allegations and the absence of recovered evidence.

Ratio Decidendi: The Court ruled that the lack of recovered evidence and the conclusion of the investigation justified the granting of bail, emphasizing the importance of not detaining an accused without substantial evidence.

Result: Bail application allowed.

Order :

1. This application for bail under Section 439 Cr.P.C. (483 BNS S) has been filed by the petitioner who has been arrested in connection with F.I.R. No.341/2024, registered at Police Station Gogunda, District Udaipur for offence under Section 64(1) , 64(2) (m) , 351(3) and 308(2) of BNS ; and Sections 67 and 67-A of the Information Technology Act .

2. Heard learned counsel for the parties at Bar. Perused the material available on record.

3. Learned counsel for the petitioner submitted that as per the prosecution, the petitioner who is aged about 22 years committed forcible sexual assault-rape upon the prosecutrix-‘T’, who is a mature married woman on multiple occasions by threatening her to circulate her obscene videos and photographs on social media platforms. Learned counsel submitted that the petitioner has been falsely implicated in the present case. Learned counsel submitted that as a matter of fact, the prosecutrix- ‘T’ was having mutual relationship with the present petitioner. However, on relations between them turning sour, the petitioner has been roped in a false criminal case.

4. Drawing attention of the Court towards the challan papers, learned counsel submitted that though as per the prosecutrix- ‘T’, she was subjected to forcible sexual assault- rape by the present petitioner on multiple occasions by threatening to circulate her obscene videos and photographs on social media platforms but no obscene videos of the prosecutrix- ‘T’ have been recovered from the possession of the present petitioner by the Investigating Agency.

5. Lastly, learned counsel for the petitioner submitted that the petitioner is in judicial custody; the investigation against him has already been concluded; the challan has already been filed before the competent criminal Court; and the trial of the case will take sufficiently long time, therefore, the benefit of bail may be granted to the accused-petitioner.

6. Per contra, learned Public Prosecutor has vehemently opposed the bail application.

7. Having considered the rival submissions, facts and circumstances of the case, this Court prima facie finds that the prosecutrix- ‘T’ is a mature married woman. This Court also prima facie finds that though as per the prosecution, she was subjected to forcible sexual assault- rape by the petitioner on multiple occasions by threatening to circulate her obscene videos and photographs on social media platforms but the Investigating Agency during the course of investigation, has not recovered any such material from the mobile phone of the petitioner or otherwise.

8. In the prima facie opinion of this Court, the argument of learned counsel for the petitioner that the petitioner and the prosecutrix- ‘T’ were in consensual/mutual relationship, however, on relations between them turning sour/strained, the petitioner has been roped in a false criminal case, cannot be brushed aside at this stage.

9. This Court also prima facie finds that the petitioner is in judicial custody, the investigation against the petitioner has already been concluded; and the prosecution has not shown any apprehension of the petitioner influencing the prosecutrix- ‘T’ or the other material prosecution witnesses of the case or tampering with the evidence or fleeing away from justice, in case, he is enlarged on bail. Thus, without expressing any opinion on merits/ demerits of the case, this Court is inclined to enlarge the petitioner on bail.

10. Consequently, the present second bail application under Section 439 Cr.P.C. (483 BNSS) is allowed. It is ordered that the accused-petitioner- Firasat Khan S/o Sharafat Khan, arrested in connection with F.I.R. No.341/2024, registered at Police Station Gogunda, District Udaipur, shall be released on bail, if not wanted in any other case, provided he furnishes a personal bond of Rs.50,000/- and two sureties of Rs.25,000/- each, to the satisfaction of learned trial Court, for his appearance before that Court on each & every date of hearing and whenever

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