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PUNJAB & HARYANA HIGH COURT
Dr. Sarojeni Sakesna, J.
Chawli
Versus
State Of Haryana
Criminal Misc. No. 21808 of 1997,
Criminal Misc. No. 28575 of 1997,
Decided On : OCTOBER 23, 1998
ANTICIPATORY BAIL - CANCELLATION - SECTION 439(2) CRPC - GANG RAPE - SERIOUSNESS OF OFFENCE - DELAY IN REPORTING - EXPLANATION - POWER OF COURT - SECTION 437 CRPC - BALANCE BETWEEN INDIVIDUAL PROTECTION AND PUBLIC FAITH - LIMITED DURATION OF ANTICIPATORY BAIL - SECTION 376(2)(G) IPC - CHARGE FRAMING ERROR.
Fact of the Case:
The petitioner, a victim of gang rape, filed a petition under Section 439(2) of the Code of Criminal Procedure seeking cancellation of anticipatory bail granted to the accused respondents. The FIR alleged that the accused took the petitioner to a cotton field, consumed alcohol, and forcibly made her drink. Subsequently, all four accused raped her one by one. The petitioner's screams were heard by a passerby, who brought her back to her village. The petitioner reported the incident to the police after her husband's return and a panchayat meeting failed to resolve the matter.
Finding of the Court:
The court held that the Additional Sessions Judge erred in granting anticipatory bail to the accused respondents during the ongoing investigation. The court emphasized the seriousness of the gang rape offense and the need for a cautious approach in granting anticipatory bail. It also noted that the delay in reporting the incident was adequately explained by the petitioner.
Issues: 1. Whether the Additional Sessions Judge erred in granting anticipatory bail to the accused respondents during the ongoing investigation. 2. Whether the delay in reporting the incident should be considered in granting anticipatory bail.
Ratio Decidendi: 1. The court relied on the Supreme Court's observations in State of Maharashtra v. Ramesh Taurani and Salauddin Abdulsamad Shaikh v. State of Maharashtra, emphasizing the need for a cautious approach in granting anticipatory bail, especially in serious offenses like gang rape. 2. The court recognized that delay in reporting sexual offenses is common due to societal stigma and the victim's emotional trauma. It held that such delay should not be a determining factor in granting anticipatory bail.
Final Decision: The court allowed the petition and canceled the anticipatory bail granted to the accused respondents. It directed them to surrender before the trial court and clarified that the trial court should decide any subsequent bail application on merits, without being influenced by the court's observations.
Dr. Sarojeni Sakesna, J.
1. The petitioner-complainant/prosecutrix Smt. Chawla has filed this petition under Section 439(2) of the Code of Criminal Procedure praying for cancellation of bail granted to respondent Nos. 2 to 5 in connection with F.I.R. No. 560 dated 17.9.1997 registered under Section 376/342/34 I.P.C. at Police Station Sadar, Sirsa. The petitioners contention is that as per the First Information Report dated 17.9.1997 on the night of 10.9.1997 she was taken away on Scooter by the accused respondents Phula Ram and Pawan. She was taken to cotton field where the remaining accused respondent Bansi and Trilok were also present alongwith the bed sheet. In the field all the accused persons took wine and made her also to drink forcibly. Thereafter, she was raped by all the four accused persons one by one. At about 3 A.M. her shrieks were heard by Girdhari who came running. On seeing Girdhari the accused person ran away. Then she was brought back by Girdhari. Next day she went to her parent house. Her husband came back on 13.9.1997 as he left the village on 9.9.1997 to Gugameri fair. Both of them came back to their village on 14.9.1997. Panchayat was convened but as no settlement could be arrived at she lodged the report on 17.9.1997.
2. The petitioners counsel contends that on these facts the said offences were registered against respondent Nos. 2 to 5. When the matter was under investigation, these accused person filed bail applications which were considered by Shri G.L. Goyal, Additional Sessions Judge, Sirsa, while deciding Bail Application No. 379 of 1997 Phula Ram v. State of Haryana Vide detailed order dated 19.19.1997, the Additional Sessions Judge, Sirsa allowed all the applications and granted anticipatory bail to all the accused persons.
3. The counsel also submitted that thereafter investigation was completed and charge sheet was filed on 28.10.1997 in the Court of Additional Chief Judicial Magistrate, Sirsa. The case was committed by that Court on 15.11.1997. Now, the trial is pending in the Court of Shri Ramendra Jain, Additional Sessions Judge, Sirsa. He has framed charge against all the accused person under Section 376 read with Section 34 of the Indian Penal Code on 28.11.1997. He submitted that considering the seriousness of the charge, the learned Additional Sessions Judge should not have granted anticipatory bail to these accused persons. The learned Additional Sessions Judge should have taken into consideration the traumatic condition of the prosecutrix under which she was placed by these accused persons when she was ravished by all of them. He also explained that so far as the delay is concerned even in the FIR, it is properly explained. In such like cases the delay should not be the relevant factor because women think many a times before lodging such a report as their own honour and prestige is at stake. A question mark is put to the honour of the whole of the family. Hence, according to him the order of anticipatory bail granted in favour of the respondents be cancelled.
4. Learned counsel appearing for respondent Nos. 2 to 5 relying upon Suresh v. Satyawan, 1998(1) RCR 74; Daljit Kaur v. Jasbir Singh, 1995(3) RCR 487 and Ajaib Singh v. Bimla Devi, 1996(3) RCR 180 contended that no doubt from the F.I.R it appears to be case of gang rape but considering the age of the prosecutrix, the circumstances of the alleged incident and the delay, the Additional Sessions Judge has rightly enlarged the respondents on anticipatory bail. They have not misused the concession of bail. There is no allegation that they are not appearing before the Sessions Court or are trying to tamper with the evidence or are trying to influence the witnesses. Hence, there is no rhyme or reason to cancel the bail.
5. After hearing the rival contentions of both the parties, I am of the considered view that the petition deserves to be allowed. No doubt there are different considerations for grant of bail and for cancellation
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