In Prasanta Kumar Sarkar vs Ashish Chatterjee and Another (2010) 14 SCC 496, the Hon’ble Supreme Court has reiterated the well settled factors to be borne in mind while considering an application for bail as under:
(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on bail;
(v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail.
In the case in hand, the victim is child of approximately 15 years 4 months. There is nothing on record to suggest that the victim or her family has any personal enmity either with the petitioner or his co-accused. There is also nothing on record to prima-facie impeach the credibility of the version given by the victim. The facts on record suggest an inference that co-accused had committed sexual assault on the victim in connivance with the petitioner. Mere fact that petitioner left the truck for some time allowing co-accused to remain with victim in the vehicle and on his return held the hand of victim suggests that the petitioner and his co-accused had acted in connivance with each other and fortunately the victim had been able to run away from the place before being exposed to further sexual assault.
The petitioner had earlier also approached this Court for grant of bail.A co-ordinate Bench of this Court had rejected the bail of the petitioner. Petitioner has failed to reveal any change in circumstance after passing of aforesaid order dated 22.11.2021 by a coordinate Bench of this Court.
It is trite that successive bail applications under Section 439 Cr.P.C. in the same FIR, is not maintainable unless some changed circumstances is shown, otherwise, the exercise of jurisdiction to entertain successive bail application amounts to review of previous order of the same Court, which is not permissible as held by the Hon’ble Supreme Court in Hari Singh Mann vs. Harbhajan Singh Bajwa and others (2001) 1 SCC 169.
It is true that the Court is not to minutely scan the evidence at the stage of adjudication of bail application, still in order to assess the prima-facie involvement of bail petitioner, the material on record cannot be ignored.
The facts of the case disclose the nature, gravity and seriousness of accusations. The offence as alleged against petitioner, if proved, will attract severe punishments as prescribed under Section 376 IPC as also Section 4 of the POCSO Act. The victim belongs to a poor family and in case of release of petitioner on bail, the possibility of petitioner trying to influence the victim and other material witnesses cannot be ruled out. As noticed earlier, this Court is prima-facie of the view that the implication of petitioner in the case is not without justification.
The laudable observation of the bench:
Inhuman acts of committing sexual assault against children (minors), has attracted the attention of all stake-holders including the legislators and, therefore, the provisions relating to sexual assaults on minors have been made very stringent in the Indian Penal Code, besides the enactment of a special Act known as “The Protection of Children from Sexual Offence Act”. The laudable purpose of such legislations is to protect the children from offence of sexual assault, sexual harassment and pornography etc. The reason behind enactment of such legislation was the data collected by the National Crimes Records Bureau with respect to ever increasing cases of sexual offence against children. Even if the petitioner had not committed sexual assault on the victim, from the material on record, it can be prima-facie inferred that he has abetted the commission of offence. Section 17 of the POCSO Act, makes the abetment of offence under said Act punishable with sentence provided for the offence committed.
Shri Balveer Sharma and The State of Himachal Pradesh [CRIMINAL MISC. PETITION( MAIN) NO. 2434 OF 2021]
HON’BLE MR. JUSTICE SATYEN VAIDYA
Judge Simla High Court
