2015 (7) TMI 1388 - HC - Indian Laws

Application for cancellation of bail - attempt to murder - change in the circumstance or not - HELD THAT - As per prosecution both prosecutrix and respondent No.2 were Face Book friends. On 22/05/2013 prosecutrix had been to Aurangabad in connection with the marriage of her relative. It is the further case of the prosecution that at Aurangabad prosecutrix met respondent No. 2. Sum and substance of the F.I.R. is that after having a coffee while they were going by car respondent No. 2 started touching private parts of the prosecutrix and also gave his private part in her hand. Though the prosecutrix resisted such obnoxious act of respondent No. 2 on the point of knife he extended threat to kill her. The filing of the charge sheet subsequent to the rejection of the first bail application would operate as change in the circumstance by which the accused can press his prayer for liberty on the evaluation of the material placed in the charge sheet by the prosecution. Though it is the prerogative of the Investigating Officer to file such documents along with charge sheet however at the same time it is expected from the prosecution and from the Investigating Officer to place all material on record which came in his possession during investigation. The investigation should be impartial. It should not have tendency to take the side of either party. Learned trial Court has considered all these text messages text chats in between the prosecutrix and respondent No. 2. Merely because those were not forming part and parcel of the charge sheet Court can not be prevented from looking to such material which was available with the Investigating Officer and for the reasons best known to the investigating agency it does not form the part and parcel of the charge sheet. Grant or refusal of bail deals with the personal liberty - while deciding the liberty of a person who is languishing in jail it is appropriate on the part of the Court to consider every material brought before the Court if its authenticity is not doubted. Further it is not the case of the prosecution or the applicant that after releasing respondent No. 2 on bail he has mis used the liberty. Application dismissed.

Summary

Issues: Application for cancellation of bail under section 439(2) of the Code of Criminal Procedure.

Detailed Analysis:

1. Bail Grant and Circumstances:
The judgment concerns an application for the cancellation of bail granted to the respondent under section 439 of the Code of Criminal Procedure for offenses under various sections of the Indian Penal Code and the Protection of Children from Sexual Offences Act. The applicant argued that the bail order was perverse, passed without considering the record, and based on material not included in the charge sheet. The respondent's counsel contended that the filing of the charge sheet itself constituted a change in circumstances warranting bail consideration.

2. Change in Circumstances and Bail Applications:
The rejection of the first bail application before the charge sheet filing and the subsequent grant of bail after the charge sheet submission were key points of contention. The court highlighted the need for a change in circumstance for successive bail applications, emphasizing the importance of evaluating the material presented in the charge sheet post its submission. Reference was made to a previous court decision to support the argument that the filing of the charge sheet indeed constitutes a substantial change in circumstances justifying a fresh bail consideration.

3. Investigation and Material Consideration:
The delay in lodging the FIR and the inclusion of chat texts not part of the charge sheet were discussed. The defense argued that the texts were handed over to the Investigating Officer, underscoring the need for impartial investigation and consideration of all relevant material. The court emphasized that while the texts were not part of the charge sheet, they were available to the Investigating Officer and should be considered in the bail decision to ensure a fair evaluation of the case.

4. Bail Cancellation Criteria:
The judgment referenced legal principles for bail cancellation, emphasizing that very compelling circumstances are required for bail cancellation, such as interference with justice administration or absconding risks. The court highlighted that bail should not be canceled mechanically and must consider supervening circumstances affecting a fair trial. The judgment also stressed that the purpose of bail is not punitive but to ensure the accused's presence during trial.

5. Final Order and Conclusion:
After considering the arguments and legal principles, the court dismissed the application for bail cancellation, noting that there was no evidence of the respondent misusing his liberty post-bail release. The judgment underscored the presumption of innocence until proven guilty and the importance of fair trial procedures in the criminal justice system.

This detailed analysis of the judgment provides insights into the legal reasoning and considerations involved in the decision-making process regarding the application for the cancellation of bail.