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IN THE HIGH COURT OF MADHYA PRADESH
Anand Pathak, J.
The Prosecutrix & Another v. Dr. Piyush Saxena & Another
Miscellaneous Criminal Case No. 6190 of 2022 (Gwalior); Decided on 31.3.2022
(1) Criminal Trial -- delay -- accused can outmanoeuvre prosecution witnesses -- draining and exhausting for prosecution witnesses/family members of victim to appear regularly before Court to face “glare and wrath of accused persons”, “exasperation of procedures” and at times “nonchalance of trial Court” to appreciate plight and agony of victim/complainant/witnesses -- this is secondary victimization of victim/complainant. (2019) 2 SCC 752 followed. [Paras 16 & 17
(2) Protection of Children from Sexual Offences Act, 2012 -- Ss. 35 (1) and 35 (2) -- provisions mandate concluding trial within one year and statement of prosecutrix within one month from date of cognizance -- much legal sanctity and purpose behind it -- Act is beneficial legislation to protect child from onslaught of lust and greed of accused -- much delay caused already -- trial Court cannot be oblivious of fact that accused and his counsel are dictating terms of trial -- duty of trial Court to complete trial as expeditiously as possible to avoid secondary victimization of complainant side. [Para 19
(3) Criminal P. C., 1973 -- S. 439 (2) -- cancellation of bail -- delay in trial -- accused took many adjournments -- cross-examined prosecution witnesses at fag end of day so that trial Court had to adjourn case -- caused delay in trial deliberately -- such conduct renders him vulnerable for cancellation of bail. [Para 20
(4) Criminal P. C., 1973 -- S. 439 (2) -- cancellation of bail -- harassing complainant/prosecutrix incessantly -- misusing plight of petitioner/prosecutrix to his advantage -- no leniency can be shown -- accused is tinkering with administration of justice -- concept of Rule of Law also undermined. [Para 21
(5) Bail -- liberty of accused ensured by administration of justice -- duty of accused -- to ensure dignity of prosecutrix and her family members and to help cause of justice. [Para 22
(6) Criminal Trial -- fair trial -- duty of Court -- administration of justice is meant for dispensation of justice -- justice does not tilt in favour of accused alone -- prosecution, victim and trial Court are equally important stakeholders -- plight of victim or prosecution witnesses cannot be ignored. [Para 26
(7) Criminal P. C., 1973 -- S. 439 (2) -- cancellation of bail -- delayed trial, misuse of liberty and non-compliance of conditions of bail order -- secondary victimization of victim -- trial delayed by accused, who is trying to compromise morale of complainant side to his advantage -- not permissible -- bail cancelled. AIR 20021 SC 4865, (2018) 16 SCC 511, (1987) 2 SCC 684 and (2002) 3 SCC 598 followed. 2009 CrLJ 1067, (2009) 3 ECrC 400 and 1995 SCC (Cri.) 237 referred to. [Paras 26 & 27
¼1½ nkafMd fopkj.k && foyac && vfHk;qDr vfHk;kstu lkf{k;ksa dks ekr ns ldrk gS && ßvfHk;qDr O;fDr;ksa dk vk¡[ksa rjsjuk vkSj jks"kÞ] ßizfØ;kvksa dh >qa>ykgVÞ vkSj dHkh&dHkh ihfM+r@ifjoknh@lkf{k;ksa dh nqnZ'kk vkSj ihM+k le>us esa ßfopkj.k U;k;ky; dh mnklhurkÞ dk lkeuk djus ds fy, U;k;ky; esa fu;fer mifLFkr gksuk vfHk;kstu lkf{k;ksa@ihfM+r ds dqVaqc ds lnL;ksa ds fy, Dykar djus vkSj Fkdkus okyk gksrk gS && ;g ihfM+r@ifjoknh dk vfrfjDr mRihM+u gksrk gSA ¼2019½2 ,l lh lh 752 vuqlfjrA ¼iSjk 16 ,oa 17
¼2½ ySafxd vijk/kksa ls ckydksa dk laj{k.k vf/kfu;e] 2012 && /kkjk 35¼1½ rFkk 35¼2½ && mica/kksa ls vkKkfir fd laKku ds fnukad ls ,d o"kZ ds Hkhrj fopkj.k rFkk ,d ekl ds Hkhrj vfHk;ksD=h dk dFku iw.kZ fd;k tk, && blds ihNs vf/kd fof/kd 'kqfprk vkSj iz;kstu && ;g vf/kfu;e ckyd dks vfHk;qDr dh dke&okluk vkSj r`".kk ds vkØe.k ls lqjf{kr djus ds fy, Qk;nkizn fo/kku gS && igys gh vf/kd foyac dkfjr && fopkj.k U;k;ky; bl rF; ls vufHkK ugha gks ldrk fd vfHk;qDr vkSj mlds dkmUlsy fopkj.k dh 'krs± fu/kkZfjr dj jgs gSa && ifjoknhi{k dks vfrfjDr mRihM+u ls cpus ds fy, fopkj.k ;Fkk laHko 'kh?kz iw.kZ djuk fopkj.k U;k;ky; dk drZO;A ¼iSjk 19
¼3½ naM izfØ;k lafgrk] 1973 && /kkjk 439¼2½ && tekur dk jídj.k && fopkj.k esa foyac && vfHk;qDr us vusd LFkxu djk, && vfHk;kstu lk{khx.k dh izfrijh{kk fnu ds var esa dh ftlds dkj.k fopkj.k U;k;ky; dks ekeyk LFkfxr djuk iM+k && tkucw>dj fopkj.k esa foyac dkfjr fd;k && ,sls vkpj.k ls og tekur ds jídj.k ds fy, nk;h gks tkrk gSA ¼iSjk 20
¼4½ naM izfØ;k lafgrk] 1973 && /kkjk 439¼2½ && tekur dk jídj.k && ifjoknh@vfHk;ksD=h dks yxkrkj rax djuk && vius Qk;ns ds fy, ;kph@vfHk;ksD=h dh nqnZ'kk dk nq#i;ksx djuk && mnkjrk ugha fn[kkbZ tk ldrh && vfHk;qDr U;k; iz'kklu ls NsM+NkM+ dj jgk gS && fof/klEer 'kklu dh ladYiuk Hkh nqcZy gksrh gSA ¼iSjk 21
¼5½ tekur && vfHk;qDr dh Lora=rk U;k; iz'kklu }kjk lqfuf'pr && vfHk;qDr dk drZO; && vfHk;ksD=h vkSj mlds dqVqac ds lnL;ksa dh xfjek lqfuf'pr djuk rFkk U;k; fgr esa lgk;d gksukA ¼iSjk 22
¼6½ nkafMd fopkj.k && _tq fopkj.k && U;k;ky; dk drZO; && U;k; iz'kklu U;k; nku ds fy, gS && U;k; dk >qdko dsoy vfHk;qDr ds i{k esa ugha gksrk && vfHk;kstui{k] ihfMr vkSj fopkj.k U;k;ky; leku :i ls egRoiw.kZ lk>snkj gSa && ihfM+r ;k vfHk;kstu lkf{k;ksa dh nqnZ'kk dh mis{kk ugha dh tk ldrhA ¼iSjk 26
¼7½ naM izfØ;k lafgrk] 1973 && /kkjk 439¼2½ && foyafcr fopkj.k] Lora=rk dk nq#i;ksx vkSj tekur vkns'k dh 'krks± dk vuqikyu && ihfM+r dk vfrfjDr mRihM+u && fopkj.k esa vfHk;qDr }kjk foyac dkfjr] tks vius Qk;ns ds fy, ifjoknhi{k dk eukscy fxjkus dh ps"Vk dj jgk gS && vuqKs; ugha && tekur jíA , vkb vkj 2021 ,l lh 4865] ¼2018½16 ,l lh lh 511] ¼1987½2 ,l lh lh 684 rFkk ¼2002½3 ,l lh lh 598 vuqlfjrA 2009 lh vkj ,y ts 1067] ¼2009½3 bZ lh vkj lh 400 rFkk 1995 ,l lh lh ¼fØ-½ 237 fufnZ"VA ¼iSjk 26 ,oa 27
ORDER
1. Present application is preferred under section 439(2) of Cr.P.C. by the petitioner/complainant seeking cancellation of bail granted vide order dated 20.1.2020 in M.Cr.C.No.43135/2019 by which this Court has granted bail to respondent No.1/accused. Accused/respondent No.1 is facing trial vide Special Case No.11/2019 for offence under sections 376(2)(n), 376(2)(i), 354(A) (i)(ii), 354(D), 120-B, 201 of IPC and sections 3,4,5,6,13,14 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “the POCSO Act”) and sections 67,67(A),67(B), 66(D),66(E) of Information Technology Act.
2. As per the allegations as contained in the charge-sheet, accused molested the prosecutrix on various occasions as referred in the charge-sheet when she was minor.
3. It is the submission of learned counsel for the petitioner/complainant that while granting bail, this Court ordered that accused shall comply all the terms and conditions of the bond executed by him, he will cooperate in trial , would not move in the vicinity of complainant party and would not indulge himself in extending inducement, threat or promise to any other person acquainted with the facts of the case and will not seek unnecessary adjournments during trial etc. Condition No.7 categorically stipulated that applicant shall not cause any delay in trial and would cross-examine the prosecution witnesses whenever they appear before the Court for cross-examination, otherwise benefit of bail shall be withdrawn immediately.
4. Relying upon the conditions enumerated in the order of bail dated 20.1.2020, learned counsel for the complainant categorically mentions that accused did not comply the conditions, therefore, rendered himself for cancellation of bail. He referred condition No.7 as contained in the order dated 20.1.2020 granting bail to the accused and referred the proceedings (filed alongwith the application) to submit that after examination-in-chief of prosecutrix, applicant sought 13 adjournments in all to crossexamine her. On pretext or the other, adjournments were sought and prosecutrix was constantly called for cross-examination which caused debilitating effect over the prosecutrix.
5. It is further submitted that initially when cross-examination of prosecutrix was likely to be held then application was moved by the accused side for filing affidavits of other family members of prosecutirx also in one go so that accused can cross-examine the witnesses one by one and defence of accused would not be opened to other prosecution witnesses to improve upon. That application was allowed by the trial Court vide order dated 22.6.2019 and therefore, alongwith prosectrix, her father (PW-2), younger sister (PW-3) and mother (PW-4) filed their affidavits before crossexamination of prosecutrix. Still their cross-examinations did not take place except her father that too recently.
6. Learned counsel for the petitioner referred the fact that on 19.7.2019 examination -in -chief of father (PW-2) was recorded and his cross-examination after 9 adjournments was completed recently on 7.3.2022. Cross-examination of younger sister (PW-3) and mother (PW-4) are still awaited. Therefore, according to him, it is breach of conditions No.5 and 7 of the bail order. Accused is trying to procrastinate the trial some how.
7. Therefore, it is clear that he has not cooperated in trial and tried to create an atmosphere wherein complainant and her family members would get exhausted to come to the trial Court and would ultimately give up. Surprisingly trial Court has also given long dates of 2-3 months and apparently played in the hands of accused.
8. So far as misuse of liberty is concerned he referred the fact that after getting the benefit of bail, just in-front of the house of petitioner, a Restaurant (with non-veg food and liquor) was opened at the instance of accused in the name of his wife and this created constant harassment and embarrassment to the prosecutrix and her family
The court has the authority to cancel bail if the order suffers from serious infirmities resulting in miscarriage of justice, and if the accused misuses their liberty, interferes with the investigati....
The seriousness of the offense and the post-bail conduct of the accused should be considered while granting bail, and proper trial procedures, especially in cases involving child victims, must be fol....
(1) Cancellation of bail – Concept of setting aside an unjustified, illegal or perverse order is totally different from concept of cancelling bail on the ground that accused has misconducted himself ....
Bail may be canceled when an accused violates conditions, especially if such violations threaten the integrity of a fair trial, as established by precedents.
Violating Condition Imposed in Bail Order - Cancel Bail - Criminal activity violating condition/conditions imposed in the bail order, the same is a supervening circumstances to cancel the bail.
Cancellation of bail requires very cogent and overwhelming circumstances, and the emotional impact on the victim can be a crucial factor in assessing the gravity of the offence.
The main legal point established in the judgment is the misuse of bail and the legal principles governing the cancellation of bail.
The importance of complying with mandatory provisions of the law, recording reasons for granting or denying bail, and applying judicial mind in bail matters.
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