HIGH COURT OF CHHATTISGARH, BILASPUR
M.Cr.C.No. 2413 of 2005
Kumar Yadav
....Petitioner
Vs.
State of Chhattisgarh
....Respondent
Appearance-
! Shri N.S. Dhurandhar, counsel for the applicant.
^ Shri Sudhir Bajpai, Panel Lawyer for the State.
HON'BLE JUSTICE SHRI SUNIL KUMAR SINHA.
Dated- 16/11/2005
: O R D E R
Oral order passed by Hon’ble shri Sunil Kumar Sinha, J.
1. Heard.
2. Case diary of Crime No. 22/2005 registered at
Police Station Ranchirai, Distt. Durg (C.G) for the
offence punishable under Sections 376 & 450 of I.P.C.,
perused.
3. The case of prosecution is that the applicant
entered into the house of the prosecutrix at about
10.00 a.m. on 18.2.2005 and asked about her husband.
The prosecutrix replied that her husband is not present
in home. Thereafter, he took the prosecutrix in a room
of her house and committed sexual intercourse against
her. Further case of the prosecution is that while the
applicant was committing sexual intercourse, the
husband of the prosecutrix returned to house then the
prosecutrix came out of the room and reported the
matter to her husband.
4. Learned counsel for the applicant submits that the
prosecutrix was a consenting party. He also submits
that since the husband witnessed this scenario while
entering into the house at once, the prosecutrix made
complaint to the husband and then only the offence was
registered. He further submits that the medical report
of the prosecutrix is nil which supports the contention
of the applicant. He prays for releasing the applicant
on bail.
5. On the other hand, learned State counsel opposed
the bail application. It is submitted that earlier,
an anticipatory bail application of the applicant was
dismissed by this Court vide order dated 10.5.2005
passed in M.Cr.C. No. 679/2005. He prays for dismissal
of this application also.
6. So far as dismissal of an application filed under
Section 438 of Cr.P.C. is concerned, the law is well
settled on the point that the consideration in relation
to releasing a person on bail under Section 439 of
Cr.P.C. and extending him the benefit of Section 438
are different. In the matter of pre-arrest, the Courts
are to look into the prevailing circumstances and to
decide that on the facts and circumstances of a
particular case, whether the benefit of protective
umbrella may be extended to a person for enabling him
to appear before the regular Court for grant of regular
bail. “The power exercisable under S. 438 is somewhat
extraordinary in character and it is only in
exceptional cases where it appears that the person may
be falsely implicated or where there are reasonable
grounds for holding that a person accused of an offence
is not likely to otherwise misuse his liberty then
power is to be exercised under S. 438. The power being
of important nature it is entrusted only to the higher
echelons of judicial forums, i.e. the Court of Session
or the High Court. It is the power exercisable in case
of an anticipated accusation of non-bailable offence.
The object which is sought to be achieved by S. 438 of
the Code is that the moment a person is arrested, if he
has already obtained an order from the Court of Session
or High Court, he shall be released immediately on bail
without being sent to jail.” (Please see 2005 AIR SCW
1013 [Adri Dharan Das -Vs- State of West Bengal])
7. Whereas, in a case under Section 439 of Cr.P.C. a
person is taken into custody and the matter relates to
his personal liberty, which is to be looked into on the
basis prima facie evidence along with the other
considerations on which his personal liberty should be
curtailed or not. “The considerations which normally
weigh with the Court in granting bail in non-bailable
offences are – the nature and seriousness of offence;
the character of the evidence; circumstances which are
peculiar to the accused; a reasonable possibility of
the presence of the accused not being secured at the
trial; reasonable apprehension of witnesses being
tampered with; the larger interest of the public or the
State and other similar factors which may be relevant
in the facts and circumstances of the case.” (Please
see 2005 AIR SCW 323 [Jayendra Saraswathi Swamigal -Vs-
State of Tamil Nadu]). The rejection of an application
under Section 438 of Cr.P.C. is not a Bar for
entertaining a subsequent application filed under
Section 439 of Cr.P.C. Therefore, I hold that the
rejection of an application filed under Section 438 of
Cr.P.C. would not make a difference in entertaining
this application as the same is to be entertained
independently without being influenced by earlier order
passed by this Court u/s 438 of the Cr.P.C.
8. Considering the facts and circumstances of the
case, particularly the age and conduct of the
prosecutrix, I am of the opinion that present is a fit
case in which the applicant should be enlarged on
regular bail. This application filed under Section 439
of Cr.P.C. is allowed.
9. Let the applicant be released on bail on his
furnishing a personal bond in sum of Rs.10,000/- with
one surety in the like amount to the satisfaction of
the trial Court for his appearance before the said
Court on each date of hearing till disposal of trial.
Certified Copy as per rules.
Judge