Heard Rajesh Kumar Gautam, learned counsel for the applicant, learned A.G.A. and perused the record.
The applicant has approached this Court by way of filing the present Criminal Misc. Bail Application in Case Crime No.421 of 2017, under Sections 364,342,376,506 I.P.C. and 66A, 67A I.T. Act, Police Station-Kotwali Nagar Etah, District-Etah after rejection of his bail application vide order dated 15.12.2017 passed by learned Additional Sessions Judge/Fast Track Court-1st, Etah.
In the present case, victim lodged an F.I.R. dated 20.3.2017 against applicant under above referred criminal offences alleging that she was a student of B.A. and residing in a hostel. About a month ago, applicant abducted her forcefully, kept under his confinement and committed rape and also shot a video of sexual assault. She managed to ran away from his confinement. Initially, due to social pressure, no complaint was lodged, however, when applicant started demanding ransom of Rs.2 lakhs from her and relatives on threat of making her insolicitated video viral on social web, platforms, she muster courage and lodged F.I.R.
Rajesh Kumar Gautam, Advocate for the applicant contended that it is a case of false implication. No injury was found in medical examination of the victim. There is no evidence of any video allegedly uploaded on any social platforms. He further submitted that victim in her statement recorded under section 164 Cr.P.C. has introduced unknown persons who abducted her and she denied that any video was uploaded on social sites. Applicant has no criminal history and he is in jail since 24.3.2017 and if enlarged on bail, he will not misuse the liberty and coo-operate in the trial.
Learned A.G.A. has opposed the bail. He pointed out that victim in her statement recorded under section 164 Cr.P.C. has specified role of applicant of committing rape on her multiple times, keeping her in confinement after abducting her for a period of more than three weeks. It is a serious offence and presently trial is at the stage of recording of evidence of material witnesses, therefore, it is not a case of bail.
Law on bail is well settled that 'Bail is rule and jail is exception'. Bail should not be granted or rejected in a mechanical manner as it concerns the liberty of a person. At the time of considering an application for bail, the Court must take into account certain factors such as the existence of a prima facie case against the accused, the gravity of the allegations, position and status of the accused, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of tampering with the witnesses and obstructing the Courts as well as the criminal antecedents of the accused. It is also well settled that the Court while considering an application for bail must not go into deep into merits of the matter such as question of credibility and reliability of prosecution witnesses which can only be tested during the trial. Even ground of parity is one of the above mentioned aspects which are essentially required to be considered while considering application for bail. It is also well settled that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner, compassionately and not in whimsical manner. Conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.
Considering the facts and circumstances of the case, particularly that it is a case of repeated rape of victim by the applicant keeping her in confinement. Victim has supported prosecution case in her statement recorded under section 164 Cr.P.C. and evidence of material witnesses are yet to be recorded during trial. No case is made out to grant bail to the applicant at this stage. The bail application is rejected.
Any observations made above are only for the purpose of deciding the bail application.
Order Date:-4.2.2021 SB