(Sanjay Kishan Kaul and Hrishikesh Roy, JJ.)
A _______________________________________________ Appellant;
v.
State of Rajasthan and Another ____________________ Respondent(s).
Criminal Appeal No. 826 of 2021 (Arising out of SLP (Crl.) No. 4846/2020), decided on August 16, 2021
The Order of the court was delivered by
Order
1. Leave granted.
2. The case has been registered against respondent No. 2 under Sections 376 and 376(2)(N) of the IPC and under Sections 3,4,5 & 6 of the POCSO Act in pursuance to FIR dated 20.04.2020. In terms of the FIR, the relationship between the appellant and respondent NO. 2 is of a minor daughter and father. In terms of the statement made in the FIR by the appellant at the time when she was going to class IV examination, respondent No. 2 is alleged to have made forcible sexual relationship. She did not inform this initially but since the alleged exploitation continued, she states that she informed the mother about the incident. At that stage, the mother took her away but she was again brought back to Udaipur after few days. The exploitation is stated to have continued at which time the appellant approached her grandmother and aunt who in turn told her to discuss it with her mother. It appears that this continued for 6 years when the appellant gathered courage to lodge the FIR as she was of a more discernible age of about 16½ years.
3. The grievance made in the present appeal is that in the aforesaid circumstances, in terms of the impugned order dated 03.09.2020, the bail has been granted to respondent No. 2.
4. We have heard learned counsel for the parties.
5. A perusal of the impugned order shows that the only aspect noticed by the Court is that the trial will take sufficiently long time. However, this would be contrary to the directions that POCSO cases are to be dealt with on priority. No other reason has been given.
6. The statement made by the appellant both under Section 161 Cr.p.c. and 164 cr.p.c. have been perused and are consistent.
7. We had noticed the counter affidavit of respondent No. 2 in which he sought to build a case that because he has frowned upon the relationship of his daughter with a person from other religion, he was being made a target. He also mentioned that the appellant has been going through martial training at his behest. He has referred to a document given by the appellant to the school, when she was having problem, with assurance that she will get better grades.
8. In view of the aforesaid, the performance of the child in school is not very material and we may say so that in case she was a victim that would be the natural consequence. We had called upon the State in terms of order dated 26.07.2021 to look into the counter affidavit of respondent No. 2 and file a reply after verifying whether respondent No. 2 had ever made complaints against her daughter or given any material to the police and if so at what stage. The State Government has filed a counter affidavit which bring forth the falsity of the stand of respondent No. 2. It has been categorically averred that respondent No. 2 had never disclosed these facts to the investigating authorities during the investigation of the FIR and has been made for the first time before this Court by filing counter affidavit. It is only after obtaining a regular bail in terms of the impugned order that for the first time letter dated 09.09.2020 and follow up letters were sent to the Superintendent of police, Udaipur, Rajasthan, alleging that his wife had misappropriated various identity and banking documents, cash and keys of motor bike and scooter belonging to respondent No. 2. Even in these letters there is no mention about appellant having any laison with another boy. It appears that these complaints were counter blast to the FIR filed by the appellant as on investigation the complaints have been closed by preparation of a final report, recommending closure of the said FIR.
9. It has been pointed out by the State that the medical examination report of the appellant dated 21.04.2020 clearly shows that she was subject to sexual intercourse and that the medical report of respondent No. 2 also showed that he was capable to perform sexual intercourse. It is submitted that the trial has to commence in the month of September, 2021 and every endeavour will be made to complete the trial at the earliest. The counter affidavit refers to a number of judicial pronouncements but suffice to say that the submission is that at least till the prosecution evidence is over, the respondent No. 2 cannot be enlarged on bail.
10. We are in agreement with the submission of the learned counsel for the appellant and respondent No. 1/State that this is not a case where respondent No. 2 should be enlarged on bail. In fact the impugned order does not deal with any of the aspects while granting bail and has dealt with this serious episode in a very casual manner.
11. We are thus of the view that the incarceration of respondent No. 2 is necessary in the interest of justice and in accordance with law at least till the time the prosecution evidence is over.
12. We thus set aside the impugned order and direct respondent No. 2 to surrender before the competent Court within one week from today.
13. The appeal is allowed in the aforesaid terms. The parties to bear their own costs.
14. Needless to say that any observations made in the impugned order is only for the purpose of consideration of the issue of bail and would not prejudice the trial in any manner.
Petition(s) for Special Leave to Appeal (Crl.) No(s). 4846/2020
Ms. A ____________________________________________ Petitioner
v.
The State of Rajasthan & Anr ______________________ Respondent(s)
Date: 16-08-2021 This petition was called on for hearing today.
(Before Sanjay Kishan Kaul and Hrishikesh Roy, JJ.)
For Petitioner(s) Mr. Ronak Karanpuria, AOR
For Respondent(s) Mr. Sourav Roy, Adv.
Mr. Nishanth Patil, AOR
Mr. Kaushal Sharma, Adv.
Mr. Prabudh Singh, Adv.
Mr. Mrinmay Bhattmewara, Adv.
Mr. Manish Dutt Sharma, Adv.
Mr. Santosh Kumar, Adv.
Mr. Vivek Gupta, AOR
UPON hearing the counsel the Court made the following
ORDER
15. Leave granted.
16. The appeal is allowed in terms of the signed order. The parties to bear their own costs.
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