RAMESH Vs. STATE OF HARYANA

JUDGEMENT

(1.) SUBJECT of "bail" is daily confronting the High Courts as well as the Subordinate Courts, and some guidelines are supposed to be given for the subordinate Courts while dealing with the applications of bail under Sections 437/439 of the Code of Criminal Procedure. By the present order I intend to dispose off the bail application under Section 439, Code of Criminal Procedure, for the grant of bail to petitioners Ramesh son of Telu Ram and Dilbagh alias Bagga son of Mangal, in case F. I. R. No. 170 dated 26-6-1996, lodged under Sections 452/3767 506/34, Indian Penal Code, registered in Police Station Hansi, District Hisar. The case was registered on the basis of the Statement of Smt. Neetu, who made a statement before the S. I. / S. H. O. , Police Station Hansi on 26-6-1996, alleging that during her childhood she was married to Liku son of Deep Singh, resident of Jewra by her parents. However, after her marriage she did not visit the house of her in-laws till that day. She has six brothers and five sisters. Eight are elder to her and three are youngers. Her mother Khazani and her father had gone to meet her relations for the last 2/3 days. Her eldest brother Satbir Singh is married and resides separately at a distant place from the house of her parents. The remaining five brothers are not married. The proseculrix alleges in her statement that on 25-6-1996 she along with her two younger brothers, namely, Parkash and Balinder was present in her house and none else was present there. After bolting the door from inside and after taking her meals all the three of them slept on the cots in the court-yard at about 8. 30 p. m. /9 p. m. her cot was close to the kitchen. while the cots of her younger brothers were in front of the room. At about 10 p. m. Dilbagh Singh alias Bagga accused came to her residence and sat on her col. Ramesh son of Telu, caste Jat, resident of the same village, followed him and sat on her cot towards the side of pillow. Dilbagh Singh alias Bagga then asked her to lake off her clothes. She refused to do so and she started making noise when Ramesh, who was carrying a cloth in his hand, put the same on the mouth of the prosecutrix and pressed her month with one hand. Thereafter Dilbagh Singh alias Bagga opened the string of her salwar and took off her salwar. He then lifted her shirt. On hearing the noise of the prosecutrix, her younger brothers Parkash and Balinder woke up. Thereafter Ramesh and Dilbagh accused-petitioners told them that if they made a noise, they would be killed. On hearing this and on account of the fact that they were younger to the prosecutrix, both of them kept lying on their cots and kept on watching the incident. The prosecutrix further alleges in her statement that Dilbagh Singh alias Bagga sat on her and then he forcibly entered his private part into her vagina. This accused caught both the hands of the prosecutrix. Ramesh accused started fondling with the breast of the prosecutrix. Dilbagh alias Bagga committed sexual intercourse with the prosecutrix against her will. Thereafter Dilbagh alias Bagga pressed her mouth and Ramesh sat upon the prosecutrix. He also committed sexual intercourse with the prosecutrix aginst her wish and will. In this manner both Ramesh and Dilbagh committed sexual intercourse with the prosecutrix two times each. After committing the rape, both the accused fled away through the door. The prosecutrix further alleges that she and her brothers kept lying on the cots due to fear and on the next morning she deputed her younger brother Balinder to the house of her elder brother Satbir. On coining to know about the rape committed by both the accused, her brother Satbir and his wife came to the house of the prosecutrix where the entire incident was narrated to them. The prosecutrix further states in her statement that she and her brothers had been waiting for their parents, so that they may return. Till night they did not return and on the next day the abovc statement was made before the S. I. and this statement became the basis of the F. I. R.

(2.) THE accused were apprehended. They applied for bail under Section 439, Cr. P. C, before the Additional Sessions Judge, Hisar, who vide order dated 7th August, 1996 dismissed the application by incorporating the following orders : - . . . Learned counsel for the accused has also cited before me authority Charan Singh v. State of Haryana, 1989 (1) CLR 306, in support of his contention that no offence has been committed by the accused. But this authority at this stage does not apply to the present case. The police has also taken into possession a Dari on which semen stains were found. Normally no brother or father would stake the reputation of his sister or daughter for saving their skin in criminal prosecution. It may also be mentioned that the accused-applicants might have entered the house of the prosecutrix finding her alone in the company of two minor brothers of very tender age in view of the fact that they must have thought it a proper opportunity to enter the house of the prosecutrix when her father and mother were already away. A perusal of the medical report also shows that there was tenderness and painful on touching the private parts. When the gang-rape has been committed on Charpai (cot) having Dari, the external injuries on the person of prosecutrix are not possible. Considering the seriousness of the offence, there is no justification for admitting the accused-applicants to bail, so application for bail filed on behalf of Dilbagh and and Ramesh accused is hereby dismissed without adverting on the merits of the case. Bail application file be consigned to the record room. Aggrieved by the order dated 7th August, 1996, the present bail application has been filed which is being disposed of at the motion stage itself with the assistance rendered by Shri R. S. Surjewala, Advocate, appearing on behalf of the petitioners.

(3.) SECTION 437, Cr. P. C. , lay down as follows : -437. When bail may be taken in case of non-bailable offence.-- (1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but -- (i) Such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life; (ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of "an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non-bailable and cognizable offence: Provided that the Court may direct that a person referred to in Clause (i) or Clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm; Provided further that the Court may also direct that a person referred to in Clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason : Provided also that the mere fact that an accused person may be required for being indentified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court. (2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, subject to the provisions of Section 446-A and pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided. (3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1), the Court may impose any condition which the Court considers necessary -- (a) in order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or (b) in order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or (c) otherwise in the interests of justice. (4) An officer or a Court releasing any person on bail under Sub-section (1) or sub-section (2), shall record in writing his or its reasons or special reasons for so doing. (5) Any Court which has released a person on bail under Sub-section (1) or sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody. (6) If, in any case triable by a Magistrate the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs. (7) If, at any time after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered. Section 439, Cr. P. C. , lays down as under : - 439. Special Powers of High Court or Court of Session regarding bail. (1) A High Court or Court of Session may direct- (a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section; (b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified : Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice. (2) A High Court or Court of Session may direct that any person who has been released on bail, under this Chapter be arrested and commit him to custody.