The Lucknow Bench of the Allahabad High Court has denied a woman’s request to revoke her husband’s bail, who is accused of raping their underage daughter.
A Single Bench of Justice Pankaj Bhatia passed this order while hearing a Criminal Misc Bail Cancellation Application filed by a minor girl through her mother.
The bail cancellation application has been filed seeking to cancel the bail granted to accused respondent no 2 by the Additional District and Sessions Judge/Special Judge, POCSO Act-Ist Lucknow in FIR/Case under sections 354-Ka, 376-AB, 504 and 506 IPC, P.S Krishna Nagar, District Lucknow.
The case is a sad case, which reflects the manner in which, the fighting parents have dragged the daughter to settle the scores amongst themselves.
The facts of the case are that an application was filed on 08.02.2021 under section 156(3) Cr.P.C alleging that on 26.08.2020, when the minor daughter of the accused and the complainant who is the mother, was sleeping in the room, the accused who is the father entered into the room and molested her and allegations were levelled that he inserted the hand in the undergarments of the victim and tried to rub the private part and tried to penetrate through his finger. The medical of the victim was not got done. Based upon the said, initially the FIR came to be lodged under section 354-Ka read with section 504 and 506 IPC and section 7/8 POCSO Act. Subsequently, after investigation the FIR was filed under section 376, 504, 506 IPC read with section 3/4 POCSO Act.
The father (accused), had filed a bail application which was not pressed and subsequently, on his moving second bail application, the bail was granted by the Special Judge, POCSO Act by means of a detailed order dated 01.11.2021.
The Court noted that,
While granting the bail, the court had noticed that there was a matrimonial dispute in between the applicant and the father of the victim.
The court further noticed that the victim was not medically examined, the medical examination was specifically refused by the complainant.
The court also noticed that on account of the matrimonial discord, the applicant was staying separately from her husband since the year 2010 and the child was also born in the year 2010 whereas in the application under section 156(3) Cr.P.C, it was alleged that the incident happened on 26.08.2020.
The court noticed that in the annexure filed on 29.09.2020, there was no mention of the incident that allegedly took place on 26.08.2020. The court further noticed that since the year 2010, the victim along with her mother was staying in the parental home with the two daughters.
The court also noticed that in the application under section 125 Cr.P.C, there was no reference of the alleged incident which took place on 26.08.2020.
The court noticing that the accused, on account of such allegation, was in custody since 10.08.2021 and had no criminal history was enlarged on bail.
While arguing the bail cancellation application, the counsel for the applicant relies upon the judgement of the court in the case Junaid vs State of U.P and another; 2021 SCC Online All 463, wherein general directions were issued that CWC and HCLSC shall be joined as a necessary parties to all bail applications filed under the POCSO Act. It was also directed that the DLSA will be a party in bail application in district courts. It was also directed that the child or her parents or legal guardians shall be impleaded as a party without disclosing their names.
In the light of the said directions given in the argued that in the second bail application, the DLSA or the victim were not made a party and thus, the bail application should be cancelled.
The court had also called for the status of the trial, which was received through communication dated 12.05.2022 in which it was stated that on 20.04.2022, the charge was framed and thereafter the matter was fixed for adducing of the evidence.
The counsel for the accused opposed the bail cancellation application by arguing that while granting bail, the court had noticed the conduct of the complainant, the mother through whom the complaint was filed and had noticed that although the parties were staying separately since the year 2010 and litigation had happened in between them in which, there was no reference of the alleged incident to have taken place as was stated in the application under section 156 (3) Cr.P.C coupled with the fact that the court had also noticed that there were no medico-legal examination, which was refused at the instance of the mother of the informant, the court had granted bail.
“Although, the court had issued directions for impleading DLSA as a party, and the mandate of Section of POCSO also prescribes for hearing application, it is necessary for this court to consider whether the accused has misused the liberty of bail or not, to which there is no material on record to suggest that the accused has misused the liberty. In fact it is clearly noticeable that it is the mother, the present applicant herein, who has misused the process of law in inflicting bald and scandalous allegations which are on the face of it wrong as observed by the order granting bail. The cancellation of bail, is a serious matter and affects the life and liberty of the accused and should not be interfered casually as is being sought by the applicant.
The court has no hesitation in holding that the applicant has from the very inception misused the process of law in making reckless allegations,” the Court observed.
“Thus, for the reasons as recorded above, the present bail cancellation application is rejected with a cost of Rs 20,000 to be deposited by the applicant before the District Legal Services Authority,” the Court ordered.