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2009 Supreme(All) 2441
2009 (66) ACC 594
HIGH COURT OF JUDICATURE AT ALLAHABAD
Vijay Kumar Verma, J.
Jasvir Singh - Applicant
Vs.
State of U.P. - Opposite party
Criminal Misc. Bail Application No. 16631 of 2008
Decided on : 29th June 2009
The mere long period of incarceration in jail would not be a ground for granting bail in a heinous crime.
Headnote:
Bail - Criminal Procedure - Sections 363, 366, 376 IPC, Section 3 (2) (5) SC/ST Act - Summary
Fact of the Case:
The applicant, Jasbir Singh, was seeking bail in a case involving allegations of kidnapping and rape of a minor girl. The prosecution alleged that the applicant and his co-accused kidnapped and raped the prosecutrix, who was later recovered by the police.
Finding of the Court:
The court rejected the bail application, citing the prosecutrix's statement under section 161 Cr.P.C. and medical reports supporting the allegations of rape. The court also emphasized that the mere long period of incarceration in jail would not be a ground for granting bail in such a heinous crime.
Issues: The main issues were the delay in lodging the FIR, the age of the prosecutrix, and the applicant's entitlement to bail based on parity with the co-accused.
Ratio Decidendi: The court held that the delay in lodging the FIR and the prosecutrix's age were not fatal to the prosecution's case. It also emphasized that parity cannot be the sole ground for granting bail and that long incarceration in jail does not automatically entitle the applicant to bail.
Final Decision: The bail application of the applicant Jasbir Singh was rejected, and the trial court was directed to conclude the trial within six months.
Vijay Kumar Verma, J.
By means of this application under section 439 of the Code of Criminal Procedure, prayer for bail has been moved on behalf of applicant Jasvir Singh s/o Bhagh Singh Yadav in case crime no. 440 of 2007 under sections 363, 366, 376 I.P.C. and section 3 (2) (5) SC/ST Act, P.S. Dholna, District Etah.
2. An FIR was lodged on 29.08.2007 by the complainant Ram Prasad s/o Tota Ram Jatav, r/o village Jakhera, P.S. Dholna, District Etah, against Jasvir Singh (applicant herein) and Ajay Pal Singh Yadav. A case under sections 363, 366 IPC and section 3 (2) (5) SC/ST Act was registered at crime no. 440 of 2007 at P.S. Dholna, Etah. The allegations made in the FIR, in brief, are that daughter of complainant aged about 13 years had gone to cut the grass on 21.08.2007 at about 2.00 p.m. (Name of the prosecutrix is not being disclosed in the order in pursuance of the direction of the Hon'ble Apex Court). It is alleged that the accused Jasbir Singh and his brother-in-law (Sala) Ajay Pal Singh Yadav kidnapped and carried the daughter of the complainant on motorcycle. Further case of the prosecution is that both the accused persons committed rape with prosecutrix after confining her in some house. The accused Jasbir Singh is alleged to have committed rape with her for many days. It is also alleged that the prosecutrix was recovered on 31.08.2007 in kasba Dholna at the tiraha of the road going to Firozapur and applicant Jasvir Singh was also present with her at that time, who was arrested by the police.
3. I have heard argument of Sri A. Kumar Singh and Sri Ghanshyam Joshi, Advocates appearing for the applicant and AGA for the State.
4. The main submission made by the learned counsel for the applicant was that the co-accused Ajay Pal Singh Yadav has been granted bail by another Bench of this Court vide order dated 16.12.2008 passed in Criminal Misc. Bail Application No. 34040 of 2008 and since the role of committing rape with the prosecutrix was attributed to that accused also in the statement of prosecutrix recorded under section 161 Cr.P.C., hence on the ground of parity the applicant deserve bail.
5. Next submission made by learned counsel was that incident of kidnapping the daughter of the complainant is said to have occurred on 21.08.2007, whereas FIR was lodged on 29.08.2007.
6. It is further submitted by the learned counsel for the applicant that statement of the prosecutrix under section 164 Cr. P. C. has not been recorded purposely, as she might be a consenting party in going with the applicant.
7. It is also submitted that the applicant is in jail since 31.08.2007 and hence on the basis of long detention period in jail, the applicant is entitled to be released on bail, because due to delay in trial, fundamental right of speedy trial envisaged under Article 21 of the Constitution is being infringed.
8. The bail application was opposed by the learned AGA contending that explanation of delay of lodging the FIR has been furnished by the complainant Ram Prasad in his statement under section 161 Cr.P.C. (Annexure-2) and hence, the delay in lodging the FIR would not be fatal to the case of prosecution. It was also submitted by learned AGA that delay in lodging the FIR in rape cases is not very material as held by the Hon'ble Apex Court in several decisions.
9. Next submission made by learned AGA was that as per medical report, age of the prosecutrix was found above 16 years and since gang rape was committed with her by the applicant and his companion Ajay Pal Singh Yadav, hence in this heinous ante-social crime, the applicant Jasbir Singh, who is prime accused of this case, should not be granted bail. It was also submitted by learned AGA that the prosecutrix cannot be consenting party for gang rape.
10. On the matter of granting bail on the basis of parity, it was submitted by learned AGA that role of the applicant Jasbir Singh is distinguishable, because he continued to commit rape with the prosecutrix for many
