The Lucknow Bench of the Allahabad High Court has rejected a bail application observing that mere long detention in jail does not entitle an accused for bail. Further, it depends on the facts and circumstances of each case as there is no straitjacket formula for granting bail.
A single-judge bench of Justice Rajesh Singh Chauhan passed this order while hearing a Criminal Misc Bail Application filed by Govind.
Brij Mohan Sahai, the counsel for the applicant, submitted that the applicant is in jail since 01.09.2017 in case under Section 376 IPC and Sections 3/4 POCSO Act, Police Station Vikas Nagar, District Lucknow.
He has further submitted that the applicant has been falsely implicated in the case as he has not committed any offence as alleged.
As per the prosecution story so narrated in the FIR, the applicant had oral sex with the daughter of the complainant/ informant, who is aged about eight years. As per the FIR, when the complainant’s daughter was vomiting after meal, the complainant asked why she was vomiting, she told him that the applicant had oral sex with her.
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Counsel also submitted that the entire prosecution story is false and concocted in as much as the family of the complainant was tenant of the applicant and when the applicant had told the complainant to vacate his house, this false story was created.
Counsel has drawn attention of the Court towards of the Rejoinder Affidavit, which is a typed statement of mother of the victim, wherein she has stated that her husband along with her daughter went to the police station to lodge the FIR but what has been written in the FIR was not known to her as she was not informed about the narration of the FIR.
On the basis of aforesaid paras, Sahai has tried to submit that in the case, maximum sentence for the alleged offence committed may be seven years and the applicant has already served about four years and seven months in jail, therefore, considering the period of incarceration, the applicant may be released on bail.
Additional Government Advocate has opposed the aforesaid prayer of Sahai and has submitted that the offence in question is so heinous in nature, therefore, the applicant may not be released on bail.
AGA and counsel for the complainant have further submitted that the statement of the victim/prosecutrix has been recorded under Section 164 CrPC wherein she has categorically stated that she is a girl of eight years.
Her father is Chhotelal Kashyap. She studies in Class-1. The applicant used to call her in his house and show porn movies. Therefore, the bail application may be rejected.
The Court held,
Further, in view of Section 3 (a) of POCSO Act, the applicant has committed penetrative sexual assault with the prosecutrix and as per Section 4 (2) of POCSO Act, if any person commits penetrative sexual assault on a child below sixteen years of age shall be punishable with imprisonment for a term which shall not be less than 20 years, but may extend to imprisonment for life. Therefore, in view of the aforesaid provision of law, the maximum punishment in the given circumstances may be awarded upto life. For the offence of rape, the punishment may extend to the imprisonment for life also.
The victim/prosecutrix in her statement recorded under Section 164 CrPC has categorically informed that the applicant committed oral sex with her. The victim/prosecutrix was about 8 years at the time of incident, therefore, at the stage of bail, it cannot be presumed that she has given such a statement under the influence of her parents.
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To me, mere long detention in jail does not entitle an accused for bail. Further, it all depends on the facts and circumstances of each case as there is no straight jacket formula for granting bail. Therefore, a period of long incarceration may be considered as one of the grounds for granting bail, but it depends upon facts and circumstances of the particular case, the Court said.
“Considering the totality of the facts and circumstances of the issue in question, medical examination report, statement of the prosecutrix recorded under Section 164 Cr.P.C and the provisions of law i.e Section 375 IPC, Section 3 (a) and Section 4 of POCSO Act, I do not find any substance in the arguments of the counsel for the applicant, looking to the peculiar facts and circumstance of the case, that the applicant has already served about four years and seven months’ period in jail, so he may be enlarged on bail considering his period of incarceration. I am conscious about the fact that the guilt of any person can be established before the trial court and no observation should be given affecting the trial, but on the basis of aforesaid material available on record, prima facie, I am not inclined to grant bail to the applicant”
-the Court observed while rejecting the bail application.
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