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Bail Appln. No. 216/2013 Page 1 HIGH COURT OF DELHI
Bail Appln. No. 216/2013 & Crl.M.A. No. 1660/2013
RAVI MISHRA ..... Petitioner
Through: Mr.S.D. Singh, Mr. R.K. Singh and Mr.D.K.Santoshi, Advocates
Bail Appln. No. 216/2013 & Crl.M.A. No. 1660/2013
RAVI MISHRA ..... Petitioner
Through: Mr.S.D. Singh, Mr. R.K. Singh and Mr.D.K.Santoshi, Advocates
VERSUS
STATE ..... Respondent
Through: Mr. Sunil Sharma, Additional Public Prosecutor for State with
Sub-Inspector Brahm Parkash, Police Station Uttam Nagar, Delhi.
Through: Mr. Sunil Sharma, Additional Public Prosecutor for State with
Sub-Inspector Brahm Parkash, Police Station Uttam Nagar, Delhi.
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR O R D E R 12.02.2013
Crl.M.A. No.1660/2013 (Exemption)
Allowed, subject to all just exceptions.
Bail Appln. No. 216/2013
Petitioner’s counsel states that inadvertently the translated copy of the FIR appearing at page 16 and 17 is not the correct copy. However, the vernacular version of the FIR (Annexure A) is on record at page 12 of the paper book.
Petitioner is real paternal uncle (chacha) of the victim aged
15 years, who is accused of sexually assaulting the victim which carries a minimum sentence of three years, extending to a period of five years as per Section 8 of The Protection of Children from
2013:DHC:748 Bail Appln. No. 216/2013 Page 2 Sexual Offences Act, 2012. Order of 21st January, 2013 of the Sessions Court declining pre-arrest bail to petitioner notes that the offence committed by petitioner is of attempt to rape and is punishable under the Indian Penal Code also.
When the offence under Sections 376 read with Section 511 of I.P.C. is also an offence under The Protection of Children from
Sexual Offences Act, 2012 then there is no need of simultaneously prosecuting petitioner for the offence of attempting rape by invoking relevant provision of Indian Penal Code. However, upon bare perusal of the F.I.R. No. 23/2013 under Sections 8 of The
Protection of Children from Sexual Offences Act, 2012 registered at Police Station Uttam Nagar, Delhi, I prima facie find that plea of petitioner being falsely implicated on account of some property dispute as advanced by petitioner’s counsel does not appear to be plausible on the face of it as in Indian society neither the victim, who is a child here, nor her family would come forward to stake the honor of their family to settle a so called property dispute. It is being so said because, admittedly no civil or any other kind of litigation in respect of any property dispute is pending in any court of law. The contention of petitioner’s counsel that Section 164Aof
Cr.P.C. has not been complied with while referring to Section 27 of
The Protection of Children from Sexual Offences Act, 2012 is without any basis because mandate of Section 27 of this enactment is that if FIR or a complaint has not been registered under this enactment, then medical examination of a child is to be conducted in accordance with the provisions of Section 164A of Cr.P.C. Since
Bail Appln. No. 216/2013 Page 3 FIR in question stands already registered under this enactment, therefore resort to Section 164A of Cr.P.C. is not called for.
Much emphasis was laid by petitioner’s counsel at the hearing that medical examination of a child/victim is essential for prosecuting any accused under this enactment, but upon plain reading the FIR in question, I find that there was no need for a medical examination of the victim in this case because petitioner is not accused of aggravated penetrative sexual assault.
To seek pre-arrest bail in a serious offence like the present one, petitioner being aged 24 years or of his being married for the last six months only and his possessing clean antecedents do not provide enough justification to grant discretionary relief of stay from arrest in this matter.
During the course of hearing, reference was made to
Sections 29 and 30 of The Protection of Children from Sexual
Offences Act, 2012 to point out that there is presumption of culpable mental state of accused and of accused being inebriated is of no defense, may not be of any relevance in this matter for the reason that it is not petitioner’s case that he was under some kind of intoxication when this act is allegedly committed.
The factors to be taken into consideration while dealing with anticipatory bail applications, as reiterated by Apex Court in
Siddharam Satlingappa Mhetre vs. State of Maharashtra and Ors.,
Crl.M.A. No.1660/2013 (Exemption)
Allowed, subject to all just exceptions.
Bail Appln. No. 216/2013
Petitioner’s counsel states that inadvertently the translated copy of the FIR appearing at page 16 and 17 is not the correct copy. However, the vernacular version of the FIR (Annexure A) is on record at page 12 of the paper book.
Petitioner is real paternal uncle (chacha) of the victim aged
15 years, who is accused of sexually assaulting the victim which carries a minimum sentence of three years, extending to a period of five years as per Section 8 of The Protection of Children from
2013:DHC:748 Bail Appln. No. 216/2013 Page 2 Sexual Offences Act, 2012. Order of 21st January, 2013 of the Sessions Court declining pre-arrest bail to petitioner notes that the offence committed by petitioner is of attempt to rape and is punishable under the Indian Penal Code also.
When the offence under Sections 376 read with Section 511 of I.P.C. is also an offence under The Protection of Children from
Sexual Offences Act, 2012 then there is no need of simultaneously prosecuting petitioner for the offence of attempting rape by invoking relevant provision of Indian Penal Code. However, upon bare perusal of the F.I.R. No. 23/2013 under Sections 8 of The
Protection of Children from Sexual Offences Act, 2012 registered at Police Station Uttam Nagar, Delhi, I prima facie find that plea of petitioner being falsely implicated on account of some property dispute as advanced by petitioner’s counsel does not appear to be plausible on the face of it as in Indian society neither the victim, who is a child here, nor her family would come forward to stake the honor of their family to settle a so called property dispute. It is being so said because, admittedly no civil or any other kind of litigation in respect of any property dispute is pending in any court of law. The contention of petitioner’s counsel that Section 164Aof
Cr.P.C. has not been complied with while referring to Section 27 of
The Protection of Children from Sexual Offences Act, 2012 is without any basis because mandate of Section 27 of this enactment is that if FIR or a complaint has not been registered under this enactment, then medical examination of a child is to be conducted in accordance with the provisions of Section 164A of Cr.P.C. Since
Bail Appln. No. 216/2013 Page 3 FIR in question stands already registered under this enactment, therefore resort to Section 164A of Cr.P.C. is not called for.
Much emphasis was laid by petitioner’s counsel at the hearing that medical examination of a child/victim is essential for prosecuting any accused under this enactment, but upon plain reading the FIR in question, I find that there was no need for a medical examination of the victim in this case because petitioner is not accused of aggravated penetrative sexual assault.
To seek pre-arrest bail in a serious offence like the present one, petitioner being aged 24 years or of his being married for the last six months only and his possessing clean antecedents do not provide enough justification to grant discretionary relief of stay from arrest in this matter.
During the course of hearing, reference was made to
Sections 29 and 30 of The Protection of Children from Sexual
Offences Act, 2012 to point out that there is presumption of culpable mental state of accused and of accused being inebriated is of no defense, may not be of any relevance in this matter for the reason that it is not petitioner’s case that he was under some kind of intoxication when this act is allegedly committed.
The factors to be taken into consideration while dealing with anticipatory bail applications, as reiterated by Apex Court in
Siddharam Satlingappa Mhetre vs. State of Maharashtra and Ors.,
JUDGMENT
Bail Appln. No. 216/2013 Page 4 “The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; iii. The possibility of the applicant to flee from justice; iv. The possibility of the accused's likelihood to repeat similar or the other offences. v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her. vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of Sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck Bail Appln. No. 216/2013 Page 5 between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.” Being conscious of the fact that arrest should be the last option in matters of grant of bail, this Court finds that gravity of the offence said to have been committed by the petitioner persuades this Court not to exercise discretion in favour of petitioner to extend the concession of pre-arrest bail to him. In the light of the aforesaid, this petition is dismissed while refraining to comment upon merits of this case lest it may prejudice petitioner when he seeks regular bail upon his surrender in this case. (SUNIL GAUR) Judge FEBRUARY 12, 2013 pkb