JUDGMENT
G.R. Luthra, J.
1. The present petition under Section 439 Cr.P.C. is for grant of bail to Om Prakash alias Parkash who is accused of commission of offences punishable under Sections 363, 366, 376, 392, 411, 342 read with Section 34 IPC.
2. The petitioner filed two such petitions earlier also but they were rejected. The first petition was Criminal Misc. (Main) 811/85 which was rejected on August 6, 1985 by H.C. Goel, J. The second application was Criminal Misc. (Main) 933/85 which was rejected by me on August 29, 1985.
3. Counsel for the petitioner urges that some fresh grounds have come into existence on account of filing of report under Section 173 Cr.P.C. and that therefore the present petition has been filed. For the purpose of under standing those fresh grounds, the facts of the case as well as the facts about the filing of report under Section 173 Cr.P.C. are being mentioned.
4. the case relates to the kidnapping and rape of Smt. Angrezo alias Bala. She is daughter of one Subhas Chand resident of Nangloi Extension II, Union Territory of Delhi. On May 15, 1985 she was married to one Prahlad resident of village Dichhau Kalan. On May 20, 1985, his elder brother Ramesh Chander aged about 23 years and her younger brother Inderjit Singh, aged about 9 years, came to village Dichhau Kalan so that she may be taken to her parental home. On that very day at about 6 p.m. her aforesaid two brothers and she got into DTC bus route No. 708 for going to Nangloi. Inderjit Singh and she got into the bus through the front door while Ramesh Chander got into the bus through the rear door so that he may be able to purchase tickets from the conductor.
5. The bus was over crowded. When the bus reached Bagrola bus stand both she and brother Inderjit Singh, taking it for Nangloi, got down. On account of over crowding; Ramesh Chander did not know that Smt. Angrezo and Inderjit Singh had got down. It was after the bus had gone away that she and her brother Inderjit Singh came to know about their mistake. In the meantime one bus route No. 923 coming from Nangloi and bound for Dichhau Kalan etc. arrived at the bus stop. Both she and her brother Inderjit Singh got into that bus. They got down at Dichhau Kalan Depot bus Stand. They thought of a possibility that perhaps Ramesh Chander may not have been able to get into the bus bound for Nangloi. They therefore stand towards a bus stand known as Dichhau Kalan. More so that they might be able to meet Ramesh Chander. They were going on foot. On the way, white car bearing registration No. DLI 1216 came from behind. That car was stopped by the car driver. In that car there were three persons including the driver. They told Smt. Angrezo and Inderjit Singh that they would take the latter to Nangloi. In good faith, both Inderjit Singh and she got into that car but instead of taking that car to Nangloi, the same was taken to tube-well in a jungle. A room was built adjoining to the tubewell. She was forcibly taken into that room and one person aged about 3 or 32 years put the ‘palla’ of her saree in her mouth. So that Inderjit Singh should not be able to help her, he was tied down with a rope to an electric pole. Another man who was not originally in the car also came. They were naming the car driver as Raj and the remaining three were calling themselves as Prakash, Suresh and Hari Raj. Raj snatched her ornaments and one HMT lady wrist watch.
6. First of all, Raj the car driver raped her and thereafter the remaining three raped her turn by turn. They had ravished her in this way. She tried her level best to extract herself from them but of no avail and in that struggle her two glass bangles broke and she had scratches on her hands. All the four persons including the petitioner also bit her face on account of which she go some injuries. She became unconscious. When she gained consciousness, at about 5.30 a.m. on 21st May 1985, she found herself in a field and her brother Inderjit Singh was sitting in a nervous condition beside her.
7. Thereafter Inderjit and she started off from that place and they reached Bahadurgarh at about 7 a.m. She was tired and therefore she sat in a park and sent Inderjit Singh for bringing drinking water. He did not come back and, therefore, she kept on searching him and ultimately at about 5 p.m. her neighbours in village Nangloi, namely, Raghbir and Ram Bhaj met her. They told her that Inderjit Singh had already reached the house at Nangloi. Master Raghbir Singh took her in a car to village Nangloi. Her father was not at home. He came at 2 p.m. on 22nd May 1985. She told everything to her father. She lodged a report with the police.
8. Raj Singh accused was arrested on 25th May 1985. Car bearing registration No. DLI 1216 was also taken into custody and on the disclosure statement of Raj Singh, Suresh Kumar and Om Prakash were arrested. On the disclosure and pointing out of Om Prakash, the present petitioner, ornaments stolen from the person of Smt. Angrezo were recovered.
9. On June 1, 1985 Om Prakash Raj Singh and Suresh Kumar refused to join the identification parade. On June 4, 1985 statement of Smt. Angrezo was recorded under Section 164 Cr.P.C. before a magistrate.
10. According to the learned counsel for the petitioner following are the new circumstances and grounds which deserve consideration in the matter of grant of bail to the present petitioner Om Prakash:
(i) Prahlad, husband of Smt. Angrezo alias Bala inter alia, stated in his statement under Section 161 Cr.P.C. to the effect that Raj Singh (one of the accused in the present case) had brought his car No. DLI 1216 in the marriage of the former in that the family of the former knew Raj Singh. That meant that Raj Singh was known to the family of Prahlad and, therefore, he must have become known to Smt. Angrezo prosecutrix. It appeared that, therefore, the prosecutrix went to Raj Singh of her own and on account of some differences, she had levelled false allegations of commission of rape with her.
(ii) The version of rape was rendered improbable on account of medico-legal report to the effect that vagina of the prosecutrix admitted two fingers easily which meant that she was used to sexual inter-course. When she had been married recently and had spent only three nights on 17th, 18th and 19th May 1985 with her husband and had been subjected to rape by only four persons, she could not become used to sexual intercourse which gives a clear reflection that she was having sexual intercourse with some people before her marriage that she continued that cohabitation and that with a view to escape wrath of the family of her husband on account of her absence during the journey to her parental home from her matrimonial home, she invented the version of rape.
(iii) According to proviso to Sub-section (1) of Section 167 Cr.P.C. the maximum number of days for which a magistrate can authorise detention of an accused person is 90 days and after 90 days it is obligatory that he must direct the release of the accused on bail. After expiry of 90 days, the only provision which authorises detention in judicial custody is Section 309(2) of Cr.P.C. but that provision applies only when a magistrate has taken cognizance of offence on receipt of report under Section 173 Cr.P.C. In the present case although the report under section 173 Cr.P.C. was filed within 90 days, yet the magistrate did not take cognizance of the offence or, the ninetieth day. The ninetieth day was 20th August 1985. The orders which the learned magistrate passed on 20th and 24th August 1985 read as under:
20-8-85 “Now challan filed today. It be checked and registered. All the three accused in judicial custody. Issue production warrants from Central Jail 24-8-85.”
24-8-85 “Accused present in judicial custody with counsel Shri R.D. Sahni. Copy given. To come up for scrutiny on 3-9-85.”
These orders do not spell out taking of cognizance of the offence and their remands is deemed to have been illegally granted under Section 167 Cr.P.C. and not under Section 309 Cr.P.C. on which account the petitioner becomes entitled to grant of bail.
11. The first two grounds relate to the merits of the case. They can be taken into consideration only by the trial court at this stage. Without prejudice to the decision of the case in respect of these grounds by the trial court, the only one thing which can be mentioned is that the mere fact that Smt. Angrezo was used to sexual intercourse does not negative the commission of rape because on account of marriage and rape she must have had sexual intercourse several times so as to make her vagina admit of two fingers. Further the mere acquaintance of Raj accused with the family of Prahlad (husband of the prosecutrix) does not give rise to any inference, even remotely, that Smt. Angrezo was having intimacy or connection with Raj accused or any other.
12. It is true that there are only two provisions in the Code of Criminal Procedure which deal with remand of an accused to custody whether judicial or police, under the orders of a court. They are Section 167 and 309. Section 167 deals with those remands which are given before a court takes cognizance of the offence. It is Section 309(2) of Cr.P.C. which gives power to a court to remand the accused to custody, after cognizance of the offence has been taken. The relevant wards in Sub-section (2) of Section 309 Cr.P.C. are ‘after taking cognizance of an offence’. Now it is to be seen as to when cognizance is taken. The meaning of the word ‘cognizance’ as given in Chamber’s Twentieth Century Dictionary is, “to have knowledge or notice, judicial or private etc. “Therefore, mere taking notice of a case is cognizance of the same. In this case the magistrate took notice of the challan (that is report under Section 173 Cr.P.C.) on 20th August 1985. There is no dispute that on that day 90 days from the date of the arrest of the accused had not expired and up to that date, the remand under Section 167 Cr.P.C. was legal. Therefore, the remand on or after 20th August 1985 became automatically under Section 309(2) Cr.P.C.
13. Learned counsel for the petitioner, however, contended that there cannot be any automatic change over of the complexion of the remand from 20th August 1985 onwards unless and until it had been so stated by the magistrate. But it is not necessary that the complexion of the remand must be mentioned in the order. In fact it is never done. The complexion or description of the nature of the remand is always implied.
14. The offence of gang rape is very serious one. Vide Criminal (Second Amendment) Act 1983, which came in to force on 25th December 1983, new Sections 375 and 376 were substituted for the old in the Indian Penal Code. New Section 376, inter alia, provides for minimum punishment of imprisonment of ten years for the offence of ‘gang rape’. The maximum punishment provided still remains imprisonment for life. The term ‘gang rape’ is defined as under in Explanation 1 to Section 376 IPC:
“Where a woman is raped by one or more in a group of person acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section.”
15. Obviously in the present case there was gang rape. When the offence is punishable with such minimum imprisonment of ten years and maximum imprisonment for life, grant of bail is hardly called for. In such serious offence there can be great possibility of the accused fleeing from justice and so their indulging in tampering with evidence.
16. Under the above circumstances I dismiss the petition.
17. Criminal Misc. (Main) 1242 of 1985 stands disposed of.