The Allahabad High Court has dismissing the application seeking cancellation of bail, said that the law with regard to cancellation of bail is also settled that it is easy to reject a bail application but it is very difficult to cancel the bail already granted and for cancellation of bail very overwhelming and cogent circumstances are necessary.
A Single Bench of Justice Sameer Jain passed this order while hearing a Criminal Misc Bail Cancellation Application filed by Santosh Singh.
The bail cancellation application has been filed on behalf of the applicant with the prayer to cancel the bail of opposite party no 2 already granted by court concerned vide order dated 30.8.2023 in Case under Sections 376(3), 323, 504 and 506 IPC and Section 3/4 POCSO Act, Police Station Khaga, District Fatehpur.
FIR of the case was lodged by the applicant against opposite party no 2 on 17.6.2023 and according to the FIR, on 10.6.2023 at about 5.00 PM in the evening opposite party no.2 enticed away the daughter of applicant aged about 14 years and next day in the morning at about 5.30 AM informant i.e applicant received a phone call from neghbouring village Gopalpur that his daughter is in the village Gopalpur and thereafter daughter of the informant, i.e, applicant has taken to the Police Station and on the way his daughter informed that opposite party no 2 abducted her and in the jungle he committed rape with her throughout the night.
After registration of the FIR, investigation was commenced and during investigation opposite party no 2 was arrested and thereafter he applied for bail before the court concerned. On 30.8.2023 the court granted bail to him.
Counsel for the applicant submitted that applicant is the informant of the case and court concerned granted bail to opposite party no 2 in heinous crime like rape.
He further submitted that daughter of the applicant was a child below 18 years of age and she in her both the statements recorded under Sections 161 Cr.P.C and 164 Cr.P.C categorically stated that opposite party no 2 committed rape with her but in spite of that court concerned enlarged the opposite party no 2 on bail.
He also submitted that from the perusal of bail granting order dated 30.8.2023 it appears that while granting bail to opposite party no 2 the court concerned did not even consider the statements of the victim recorded under Sections 161 CrPC and 164 CrPC.
He said that that from the perusal of the medical report of the victim, it appears that she sustained abrasion on left cheek and on both hands and Doctor also opined that there are signs of use of force but the court concerned also did not consider the medical report of the victim and released the opposite party no 2 on bail.
He further said that considering the seriousness of the allegation made against opposite party no 2 and nonconsideration of relevant material available on record, bail granted to opposite party no 2 should be cancelled.
AGA appearing on behalf of the State also submitted that it is a case of rape upon the minor girl, who was child under the provisions of POCSO Act and she in her both the statements recorded under Sections 161 Cr.P.C and 164 Cr.P.C stated that opposite party no 2 committed rape with her and the Doctor also noted the sign of use of force, therefore, bail granted to opposite party no 2 should be cancelled.
The Court observed that,
The main contention raised on behalf of the applicant and the AGA is that while granting bail to the opposite party no 2 court concerned failed to even consider the statements of the victim recorded under Sections 161 CrPC and 164 CrPC.
They further submitted that even during medical examination the Doctor noticed abrasion on the cheek and hands of the victim and Doctor also opined that there are signs of use of force and this aspect was also not considered by the court concerned.
In case at hand, after perusing the bail granting order dated 30.8.2023 passed by the court concerned it cannot be said that on irrelevant factors the court concerned granted bail to opposite party no 2.
However, it reflects that while granting bail the statements of victim recorded during investigation and her medical report could not be discussed but in my view even if some relevant materials available on record could not be discussed/considered while granting bail to the accused then also on this ground bail granted to the accused should not be automatically cancelled and for cancellation of bail it is necessary to consider the effect of non consideration of material available on record.
In the matter, no doubt victim in her both the statements recorded during investigation stated against opposite party no 2 but from the perusal of the bail granting order dated 30.8.2023 it appears that even the Investigating Officer raised doubts on the story narrated by the victim and the informant and court concerned also considered the fact that FIR of the case was lodged after seven days and, therefore, even if the court concerned failed to consider the statements of the victim recorded during investigation then also it cannot be said that opposite party no 2 was not entitled to be enlarged on bail.
Further, however, the court concerned also did not discuss the fact that at the time of medical examination abrasions were found on the cheek and hands of the victim and Doctor also opined, there are signs of use of force but from the perusal of the medical report of the victim it appears that victim was medically examined on 19.6.2023, i.e, after nine days of the alleged rape and, therefore, merely on the basis of abrasions noted by the Doctor at the time of her medical examination it cannot be said that these abrasions were sustained during alleged rape as she might have sustained these minor/small abrasions even subsequently in some other manner.
Further, no doubt in bail granting order the court concerned did not discuss the material available on record including statements of victim and her medical report but from the bail granting order it reflects that the entire material was perused before granting bail.
Further, in the case at hand, apart from the fact that in view of the court concerned prosecution story appears to be unconvincing the another aspect is that FIR of the case was lodged after seven days on the application moved by applicant dated 13.6.2023 and a day before, ie 12.6.2023 opposite party no 2 had lodged an FIR against him and others and, therefore, possibility at this stage cannot be ruled out that due to this enmity next day applicant moved an application for lodging of the FIR against opposite party no 2.
“Personal liberty of a person is the most cherished fundamental right provided under the Constitution of India and personal liberty of a person should not be easily curtailed and for curtailment of personal liberty very cogent and overwhelming circumstances are necessary. In case of cancellation of bail the court has to extinguish the personal liberty which has been earlier granted and therefore, the court in casual manner without in depth examination of the facts and circumstances of the case, cannot allow such application for cancellation of bail. While dealing with the bail cancellation application the Court must be circumspect in cancelling the bail already granted.
Further, there is no allegation that opposite party no 2 after being released on bail is either threatening the applicant or victim or is trying to tamper the prosecution evidence”, the Court further observed while dismissing the application.
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