The Delhi High Court recently set aside the order granting bail to a man accused for committing rape of a mentally unsound woman on the pretext of taking her to Vaishno-Devi for taking out evil spirit of a black dog from her. The man repeatedly raped her by taking her to hotel in Kathgodam, Nainital by giving her spiked drinks
A single-judge bench of Justice Mukta Gupta opined, the trial court failed to notice that consciousness and orientation are different from being able to exercise sound mental judgment and to realise that the victim is being enticed to fall prey to the accused. She said, the learned trial court additional sessions judge who passed the bail order was failed to understand that accused lived in close vicinity of the prosecutrix and was aware of the mental faculties of the victim and taking advantage of her broken marriage, he lured her stating that he would get the evil spirit out of her soul, get her married to a boy and called her on 21st of July, 2021. Further, Justice Gupta noted that on the pretext of taking her to Vaishno Devi, he took her to Nainital where he performed sexual relationships by giving intoxicants in the Cold drinks.
The high court also reiterated the main factors to be borne in mind while considering an application for grant of bail;
(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on bail;
(v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail.
The high court noted that one of the reasons the sessions judge granted bail to accused that there was the unexplained and unjustified delay of nearly 7 days in reporting the matter, thus there being possibility of false implication of the accused by the prosecutrix under the influence or pressure of her family members. Secondly, sessions judge relied on video prepared by accused during sexual intercourse and concluded that prosecutrix was looking mentally fit in the videos.
The high court dealt with both the contentions of the learned sessions judge and opined that there wasn’t any delay in the lodgement of complaint and secondly in one of the two videos the accused could be seen stating that they have got married and he was taking the prosecutrix to Ram Nagar to perform the marriage again as they were Ram and Sita and though he was not Ram but his wife was certainly Sita. Admittedly, no marriage was performed and merely by putting vermillion on the head of the prosecutrix, she was made to believe that she had got married to accused, said the high court. The high court judge noted that second video clearly shows the mala fide intent of accused wherein he could be seen threatening the brother of the prosecutrix that now he will stay as a Ghar-Jamayee and the family members will be out of the house.
Justice Mukta Gupta said, “The learned Trial Court failed to notice that consciousness and orientation are different from being able to exercise sound mental judgment and to realise that the victim is being enticed to fall prey to the accused.”
Background of the case
The petition was filed before the high court through the father/ legal guardian of the victim who is a female aged 37 years, suffering from bipolar mental disorder episodic mania and psychotic features since the year 2002 and was diagnosed to be suffering from the mental disorder in 2015 with mania shortly after her marriage. The same has also resulted in initiation of divorce proceedings between the victim and her husband. The court observed that accused namely Shiva, being a neighbor of the prosecutrix took advantage of the mental condition of the victim and was able to lure her and commit forceful sexual intercourse with her.
The court stated that the Ld. ASJ did not take into account the statement of the victim under section 164 Cr.P.C wherein she mentioned in detail her encounter, and that the respondent had forcefully committed sexual intercourse with her and had also mixed intoxicants in cold drink and made her drink it only to take advantage of her as he knew that the victim was desperate to get married again and was diagnosed with Bipolar disorder along with manic depression. The accused took her to Nainital on the pretext of taking her to Vaishno Devi and by posing as an astrologer and palmist, to “get rid of an evil soul of a black dog trapped inside the victim through tantric practices.”
The petitioner being the father/legal guardian of the prosecutrix, filed the petition on her behalf. He filed a complaint in vikas puri P.S on 21st july 2021 as his younger daughter told him about the whereabouts of her elder sister as she received a video call from the prosecutrix from nainital and not jammu. Her sister was surprised to see the prosecutrix with the respondent number 2 shiva as he was involved in criminal activities and consumption of drugs and informed her parents. The petitioners then filed the said complaint as they were scared that shiva might just traffic her or harm her. The police then took out the call records of the prosecutrix only to find her in nainital and then, on 23rd july 2021 brought back the accused and prosecutrix to delhi after which shiva was arrested.
The respondent no.2 got in touch with the prosecutrix as both of them lived in the same vicinity and the respondent had promised to get the prosecutrix married to a good boy. They both were in touch through messages on mobile 2-3 days before the prosecutrix left with the respondent for nainital.
Observations of the High Court
The High Court observed, “An order granting bail or rejecting bail is not to be interfered normally and it is incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the principles laid down in a plethora of decisions of the Hon‟ble Supreme Court in regard to the cancellation of bail. (AIR 2011 SC 274 Prasanta Kumar Sarkar vs. Ashis Chatterjee and Ors.).”
It is trite law that cancellation of bail granted can be directed either because the order granting bail is perverse, illegal, contrary to law or unjustified or if the accused violates the conditions of grant of bail such as tampering with the evidence, interfering with the investigation, influencing the witnesses or fleeing away from justice. In the present case, the petitioner seeks cancellation of bail on the first ground that the order granting bail is perverse, illegal and contrary to the settled principles of law of grant of bail. In the decision reported as (2001) 6 SCC 338 Puran and Ors. Vs. Rambilas and Ors.
“Supreme Court following the decision in 1978 Crl. LJ 129 Gurcharan Singh vs. State ( Delhi Admn.) held that the concept of setting aside the unjustified, illegal and perverse order is totally different from the concept of cancelling the bail on the ground that accused has misconducted himself or because of some new facts requiring such cancellation.”
The High Court held, “Considering the fact that the impugned order granting bail to the accused suffers from gross- illegality as the Ld. ASJ totally ignored the statement of the prosecutrix recorded u/s 164 Cr.P.C, the seriousness of the offence, statement of the prosecutrix is still to be recorded before Ld. Trial court and that the respondent is living in the same vicinity of the prosecutrix and is thus likely to influence the prosecutrix by luring her again and/or intimidating her and thus the impugned order has been set aside and bail granted to respondent is cancelled and the respondent will surrender to custody within one week.”