Bachan Singh vs State of Himachal Pradesh

T.R. Handa, J.—After making an unsuccessful attempt in the Court of Sessions to seek his release on bail u/s 439 of the Code of Criminal Procedure, hereinafter called the Code, the Petitioner has approached this Court for the same relief.

The Petitioner who is employed in the Army as a Havaldar was in his village on annual leave when on the night intervening 25/26-12-1980 he was arrested on charge u/s 376 I.P.C. for having committed rape on a minor girl aged about 12 years. Presently he is locked up in judicial custody. The facts of this case as revealed from the police investigation disclose that on 25-12-1980 Kumari Sangeeta a young girl of about 10 years had gone to the jungle for grazing her cattle. On her way back, the Petitioner caught her by her arm and took her aside in the bushes where he forcibly committed rape on her. He then fled away leaving the girl in an unconscious and injured state. On regaining consciousness the girl proceeded to her house where she narrated the occurrence to her mother who took her to the house of the Petitioner. Other persons from the village also collected at the house of the Petitioner who then bolted his door from inside and would not come out in spite of the demands made by the persons present there. The Petitioner simply told those persons that what he had done had been done and that he would not come out. The persons present outside the house of the Petitioner kept guard outside his house and in the meanwhile Shri Sukh Dev Singh, Pradhan of the Gram Panchayat, went to the police station where he lodged a report. The police then arrested the Petitioner from his house.

Both the minor girl, the victim of the offence as also the Petitioner, were subjected to medical examination the very next morning. A number of injuries were found on the private parts of the girl and the medical opinion is definite on the point that the girl had been subjected to rape. Abrasion marks were also detected on both the thighs as also on the scapular regions of the Petitioner. Blood stains and semen stains were also found present on the front part of the underwear of the Petitioner which was taken into possession and sent for chemical examination. Injuries found on the persons of the girl as also of the Petitioner were reported to be of a short duration of about 24 hours.

The investigation of the case which is already complete does prima facie suggest that the Petitioner is involved in the commission of the offence of rape on Kumari Sangeeta.

The learned Sessions Judge declined to release the Petitioner on bail on the plea that the Petitioner was involved in a criminal case punishable u/s 376 I.P.C. with life imprisonment and the act alleged to have been committed by him was of a cruel character.

The learned Counsel appearing for the Petitioner argued that "bail and not jail" is the rule in the matter of dealing with bail applications and since Section 439 of the Code confers plenary and unrestricted powers on the High Court or the Court of Sessions to grant bail to a person accused of a non-bailable offence, this Court in exercise of such powers should release the Petitioner on bail and he further stated that while ordering release of the Petitioner on bail, this Court may impose any conditions which it may deem tit. "Bail and not jail" is of course now a recognized rule but this rule would not apply as a matter of course in the case of persons accused of non-bailable offences punishable with death or imprisonment for life.

Again it is true that Section 439 of the Code confers a wide power on the High Court or the Court of Sessions to enlarge on bail a person accused of a non-bailable offence and that this power is neither controlled nor fettered by the restrictions which find mention in Section 437 of the Code. At the same time it must be remembered that this power conferred on the High Court or the Court of Sessions u/s 439 being of a discretionary nature, it has to be exercised judiciously like any other judicial discretion and not in an arbitrary manner. The restrictions to be found in Section 437 of the Code, though the same stand deleted from the language of Section 439, would certainly provide a very valuable guide in the matter of exercise of the judicial discretion conferred by Section 439. These restrictions as find mention in Section 437 must ordinarily be respected even while disposing of an application for release on bail u/s 439 and a departure there from should be made only in exceptional cases when the peculiar circumstances of a particular case so demand. The basic rule is that bail must be refused whenever there are circumstances justifying an apprehension that the accused person, if released on bail, would flee from justice or would thwart the course of justice or would intimidate the prosecution witnesses or would otherwise misuse nis liberty. In the case of a person accused of a non-bailable offence punishable with death or life imprisonment, there is certainly more likelihood of the existence of such like apprehensions and this explains why the Legislature in its wisdom has not u/s 437 of the Code vested the Magistrate with the power to release an accused person on bail if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or life imprisonment. It again cannot be denied that the gravity of the offence involved as also the heinousness of the crime are important factors which would induce an accused person to avoid the course of justice and hence it is only proper that while exercising its discretion in refusing or allowing bail u/s 439 these factors must weigh with the Court. It is only in exceptional cases that bail should be allowed to a person accused of a non-bailable offence punishable with death or life imprisonment and it would be for the accused in each case to bring his case within such exceptions.

In the instant case as already observed the Petitioner is prima facie involved in a very grave and heinous offence of having committed a brutal rape on an innocent child of only ten years. The chances of a person accused of such like offences, of misusing his liberty cannot be lightly ruled out. The Petitioner must, therefore, make out a special case for being dealt with outside the ordinary rule that a person accused of a non-bailable offence punishable with death or life imprisonment should not be released on bail. The Petitioner in this case has failed to make out any such case. He was arrested on 25-12-1980. The investigation in the case is already over and I am told that the challan against the accused was actually filed in Court on 13-1-1981. Keeping in view the list of witnesses and the nature of evidence on which the prosecution relies, the trial is not likely to take long. Keeping all these circumstances in view I find myself unable to exercise my discretion in the matter of grant of bail, in favour of the Petitioner and would, therefore, reject this application.