Mukesh vs The State of Rajasthan

Kanwaljit Singh Ahluwalia, J.—This is third bail application filed under Section 439 Cr.P.C. seeking regular bail to the petitioner in a case arising out of FIR No. 331/2012, registered at Police Station Chaksu, District Jaipur for the offence under Section 376 IPC.

It is stated that later on, in the charge-sheet the police has also added the offence under Section 6 of the Protection of Children from Sexual

The first bail application of the petitioner was rejected by this Court on 11.02.2014 by passing the following order:--

"Instant application has been filed under Section 439 Cr.P.C. for grant of regular bail to the petitioner in a case arising out of F.I.R. No. 331/2012, registered at Police Station, Chaksu, Jaipur Rural, for offences punishable under Sections 354, 379, 363 and 307 I.P.C. it is stated that later-on offence under Section 376 I.P.C. has been added."

Facts of the instant case will prick the conscience of any ordinary prudent man.

A birth was given to a daughter and after birth she was deserted and thrown in the field. The fatherless and motherless child at present is lodged in an orphanage.

It is a travesty of justice and ironical that due to loopholes in the law and stereotype defences the child will not and nobody will come forward to take care of the child. The mother and father of the child are more concerned with the trial and their acquittal/bail than the welfare of the child which should be paramount. To take care of all subjects, especially a child, for whom there is nobody to raise voice, the High Court shall not fail in its duty as welfare of the child is a paramount consideration s for the High Court. Neither the law is weak nor those administer justice are helpless to give a justice to the child, who cry for the care of mother and father.

Shameless defences without any legs to stand and conscious cannot defeat the ends of justice.

On 03.08.2012, an F.I.R. bearing No. 322/2012 was lodged at Police Station, Chaksu by one Shivji Ram, alleging inter alia that on 03.08.2012 at 6:00 O''clock he had heard a cry of girl child and it is not known that who had left the child in the field as illegitimate "lawaaris ".

The investigation was carried.

During investigation, it was found that one lady "S" [name withheld to protect her identity] age less than seventeen years after giving birth had thrown the child in the field.

Unwed mother facing shame and agony and in order to save repercussions threw the child after birth in the field.

A little inquiry made by the Investigating Officer from unwed mother led to disclosure that child has been sired by the petitioner. A lady, who herself was a child, as per definition of the Juvenile Justice Act, stated that she was subjected to rape by the petitioner.

Instant application has been filed for grant of regular bail to the petitioner in a case of rape. Defences as are ordinarily raised in a rape case not only have been raised before this Court, but also an insult has also been added to the injury by saying that the lady herself has admitted that she never become pregnant. It has been stated that lady is of such character i.e. her testimony does not inspire confidence. This Court shall not enumerate the defences raised by counsel for the petitioner as they themselves are against the dignity of a woman.

Suffice it to say that the prosecutrix appeared as PW-3 and in examination-in-chief, stated that she was subjected to rape by the petitioner.

Investigation has pinpointed the mother of the child. The mother has disclosed the name of the father. The father is not only shirking away from the responsibility, but also is throwing mud on the lady and is denying relationship with the girl child.

It will be apposite to note here Section 317 I.P.C. and the same reads as under:--

"317. Exposure and abandonment of child under twelve years, by parent or person having care of it. - Whoever being the father or mother of a child under the age of twelve years, or having the care of such child, shall expose or leave such child in any place with the intention of wholly abandoning such child, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.

Explanation. -- This section is not intended to prevent the trial of the offender for murder or culpable homicide, as the case may be, if the child dies in consequence of the exposure."

The legislature in its wisdom has made father-mother of the child responsible, in case he or she is abandoned under the age of twelve-years by the parents.

The child require care of both the father and mother. Merely because, the Investigating Officer was not agile, alert and lacked knowledge, father cannot escape from responsibility of offence under Section 317 I.P.C.

Taking totality of the circumstances, a direction is issued to the concerned Sessions Judge, to withdraw the trial of the case, bearing F.I.R. No. 322 dated 30.08.2012 registered at Police Station, Chaksu, Jaipur [S] for offence punishable under Sections 317 and 120-B I.P.C. where it is pending and assign the trial of the same to the Court, which is conducting the trial of the case in F.I.R. bearing No. 331/2012, registered at Police Station Chaksu, Jaipur for commission of offence punishable under Section 376 I.P.C.

The trial of both the cases shall be conducted separately, but simultaneously so that because of peculiar facts of the case no conflicting findings emerge and judicial embarrassment is not caused because of pendency of parallel proceedings.

The Court to whom the trial shall be assigned shall apply its mind as to whether or not the petitioner is to be summoned as an additional accused for commission of offence under Section 317 I.P.C. by invoking Section 319 Cr.P.C.

The Court to whom the trial of both the cases would be assigned, if required, may under Section 311 Cr.P.C. ask the accused for a D.N.A. Test so that fatherhood of the child is determined. However, this is a mere suggestion and will not affect the defences to be raised by the petitioner, in case he refused to undergo the D.N.A. Test. However, it is clarified that refusal to undergo D.N.A. Test and its repercussion and presumption attached thereto being a legal arguments shall be examined by the Court at appropriate stage.

In view of above, the present application stands disposed of without granting bail to the petitioner, as in the humble opinion of the Court the petitioner is not entitled for the same.

The above said observations have been made to advance the interest of justice and not to cause prejudice to any accused and, therefore, the above observations shall not blunt any of the defence to be raised by any of the accused."

Thereafter, the petitioner filed second bail application and had obtained the interim bail to undertake his examination.

In the present bail application, the petitioner has filed an affidavit dated 18.05.2014, stating that he is ready and willing to pay Rs. 2,000/- per month to the child (a baby girl), allegedly born from the womb of the complainant-respondent No. 2 and loins of the petitioner.

Shri Vimal Kumar Jain, Counsel appearing for the complainant-respondent No. 2 has stated that the complainant has taken a specific stand that she has given birth to no child.

This Court on 07.08.2014 called for the progress report from the trial Court. The trial Court in its report dated 26.08.2014, has stated that the report of DNA test is awaited and, therefore, the trial has not

It is stated that the petitioner is in custody since 28.01.2013 i.e. about one year and ten months and trial has not proceeded. The petitioner is willing to deposit Rs. 2,000/- per month for the upbringing of the baby girl, who at present is admitted at Balika Grih, Gandhi Nagar, Jaipur.

Considering the facts and the circumstances, this Court is of the view that continuous detention of the petitioner, as an under trial, is not warranted.

Consequently, the present bail application is accepted, subject to condition that from 01.06.2014, the petitioner shall deposit the charges at the rate of Rupees 2000/- per month for upbringing of the child, at present housed at Balika Grih, Gandhi Nagar, Jaipur. The amount pertaining to last five months be deposited in the trial Court. The trial Court shall disburse the amount to the Balika Grih, Gandhi Nagar, Jaipur. The petitioner shall continue to deposit Rs. 2,000/- per month in the trial Court and the same shall be remitted to the Balika Grih, Gandhi Nagar, Jaipur. In case of two consecutive default in depositing the amount, the trial Court shall be empowered to cancel the bail. The bail bonds shall be accepted by the trial Court to its satisfaction.