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TMI Blog2020 (10) TMI 1384X X X X Extracts X X X X X X X X Extracts X X X X ..... er an obligation to maintain a balance between all stakeholders and safeguard the interests of the victim, accused, society, and State. However, while deciding bail applications, the Courts should discuss evidence relevant only for determining bail - The conduct of the victim of accompanying the accused to her bedroom without any resistance, and subsequently without any reasons running away to the forest from the safe custody of her maternal uncle, and staying alone in a cave for three days, at least makes out a case for bail to the petitioner. An analysis of the evidence does not justify further incarceration of the accused, nor is it going to achieve any significant purpose, making out a case for bail. In case the petitioner finds the bail condition(s) as violating fundamental, human, or other rights, or causing difficulty due to any situation, then for modification of such term(s), the petitioner may file a reasoned application before this Court, and after taking cognizance, even before the Court taking cognizance or the trial Court, as the case may be, and such Court shall also be competent to modify or delete any condition - This order does not, in any manner, limit or restric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... started chasing her. When she reached near a temple, then below the forest, he caught hold of her, torn her clothes, made her lie, opened the string of her salwar, and forcibly committed rape upon her. After that, he warned her that if she revealed this incident to anyone, then he would do away with her life and ran away from that place. The victim further alleged that even earlier, at the end of May, when she was alone in her home and studying in the corridor of her house, the accused came there and asked her that he had some work with her and asked her to accompany him to her room. Upon that, she followed him, and the moment she entered the room, he caught hold of her and committed rape upon her on the bed. From that day onwards, he would threaten her that if she revealed this incident to anyone, he would do away with her life. Because of the threat, she could not tell the ordeal to her parents. She further stated that it was due to this fear that she had shifted to her maternal uncle's place. She also alleged that Mahender Kumar would even write letters asking her to reply with warnings that failure to respond would lead to unimaginable consequences. She further stated to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that if anyone is declared as an absconder/proclaimed offender in terms of Section 82 of the Code, he is not entitled to the relief of anticipatory bail. 10. In Balveer Singh Bundela v. The State of Madhya Pradesh, 12 May 2020 , M.Cr.C.No.5621/2020, single bench of Madhya Pradesh High Court observed, 29. In other words if chance of fleeing from justice exists then application under Section 438 of Cr.P.C. can be rejected and when a person is declared as proclaimed offender as per Section 82 of Cr.P.C. it means that factor (iii) of Section 438 (1) of Cr.P.C. manifested in reality or in other words possibility of applicant to flee from justice converted into reality. To put it differently, Section 82 of Cr.P.C. is manifestation of Apprehension as contained in Section 438 (1) factor (iii) of Cr.P.C. The judgments pronounced by the Apex Court in the case of Lavesh and Pradeep Sharma (supra) nowhere bar the maintainability of the application under Section 438 of Cr.P.C. in wake of person being declared as absconder under Sections 82 and 83 of Cr.P.C. and understandably so because this would not have been in consonance with letter and spirit of Constitution Bench judgment of Apex Court pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enter the cumulative effect of the variety of circumstances justifying the grant or refusal of bail. In Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav, 2005 (2) SCC 42 , (Para 18) a three-member bench of Supreme Court held that the persons accused of non-bailable offences are entitled to bail, if the Court concerned concludes that the prosecution has failed to establish a prima facie case against him, or despite the existence of a prima facie case, the Court records reasons for its satisfaction for the need to release such persons on bail, in the given fact situations. The rejection of bail does not preclude filing a subsequent application, and the Courts can release on bail, provided the circumstances then prevailing requires, and a change in the fact situation. In State of Rajasthan, Jaipur v. Balchand , AIR 1977 SC 2447, (Para 2 3), Supreme Court noticeably illustrated that the basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like by the petitioner who seeks enlarg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and stringent conditions. In Sushila Aggarwal versus State (NCT of Delhi) Another, (2020) 5 SCC 1, the Constitutional Bench held that unusually, subject to the evidence produced, the Courts can impose restrictive conditions. 16. Given the above reasoning, the Court is granting bail to the petitioner, subject to the imposition of following stringent conditions, which shall be over and above, and irrespective of the contents of the form of bail bonds in chapter XXXIII of CrPC. Consequently, the present petition is allowed, and in the event of arrest the petitioner shall be released on bail in the FIR mentioned above, on his furnishing a personal bond of INR 1,00,000/, (INR One Lac only), with two sureties for INR 50,000 (INR Fifty thousand only), to the satisfaction of the Investigator/ SHO of the concerned Police Station. The furnishing of bail bonds shall be deemed acceptance of all stipulations, terms, and conditions of this bail order: a) The Attesting officer shall mention on the reverse page of personal bonds, the permanent address of the petitioner along with the phone number(s), WhatsApp number (if any), email (if any), and details of personal bank account(s) (if available) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to produce him before such Court, provided such amount exceeds the amount recoverable after forfeiture of the bail bonds, and also subject to the provisions of Sections 446 446-A of CrPC. The petitioner's failure to reimburse the State shall entitle the trial Court to order the transfer of money from the bank account(s) of the petitioner. However, this recovery is subject to the condition that the expenditure incurred must be spent to trace the petitioner and it relates to the exercise undertaken solely to arrest the petitioner in that FIR, and during that voyage, the Police had not gone for any other purpose/function what so ever. k) The petitioner shall intimate about the change of residential address and change of phone numbers, WhatsApp number, e-mail accounts, within thirty days from such modification, to the police station of this FIR, and the concerned Court, if such stage arises. l) The petitioner shall neither stare, stalk, make any gestures, remarks, call, contact, message the victim, either physically, or through phone call or any other social media, nor roam around the victim's home. The petitioner shall not contact the victim. m) The petitioner shall abstain ..... X X X X Extracts X X X X X X X X Extracts X X X X
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