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The Allahabad High Court recently, rejected the bail application of the applicant as there were serious allegations against applicant and that in case of bail there is likelihood that applicant would influence the victim.

The Single Bench of Justice Saurabh Shyam Shamshery while rejecting the bail observed that, “Prima facie the applicant has actively participated in the offence and conspired with co-accused to commit the offence.”

According to the facts of the present case, the applicant Shan alias Sonu, approached the Court by way of filing the present Criminal Misc. Bail Application under Section 439 Cr.P.C. after rejection of his Bail Application vide order dated 01.07.2020, passed by Special Judge (POCSO Act), under Sections 376, 328, 506, 120B IPC, 3/4 POCSO Act, 3(2)(V) SC/ST Act, 67A Information Technology Act.

It must be noted that the applicant and co-accused were allegedly involved in committing repeated rape of victim, a minor girl, by putting her under threat of posting her unsolicited video and photographs on various platforms of social media.

The Learned counsel for applicant submitted that the applicant is innocent and he has been falsely implicated in the present case.

“Victim has not attributed role of committing rape on applicant in her statement recorded under Section 164 Cr.P.C. The only role attributed to applicant he brought cold drink. No photographs or videos of victim were found in alleged recovered mobile of the applicant. The case of applicant is distinguishable from co-accused, Chand, who allegedly committed rape on the victim.”

The Counsel further urged the Court to release the applicant as he was languished in jail since 27.05.2020 and in case, he is released on bail, he would not misuse the liberty of bail and would cooperate in trial.

Opposing the bail learned A.G.A. appearing for State submitted that, “in the present case victim is a minor girl, who has specifically stated in her statement that she was raped and present applicant not only brought an adulterated cold drink but also recorded the incident of rape.”

He further submitted that, “the victim had also given her unsolicited photographs to the Investigating Officer and that it is a case where victim was repeatedly raped and applicant has also specific role of taking video and photographs of act of rape and posting the same in various platforms of social media.”

Taking into account the factual matrix of the present case the Bench observed that,

“Law on bail is well settled that 'Bail is rule and Jail is an exception'. Bail should not be granted or rejected in a mechanical manner as it concerns liberty of a person. At the time of considering an application for bail, the Court must take into account certain factors such as existence of a prima facie case against the accused, gravity of the allegations, severity of punishment, position and status of the accused, likelihood of the accused fleeing from justice and repeating the offence, reasonable apprehension of tampering with the witnesses and obstructing the Courts as well as criminal antecedents of the accused."

The Bench further stated that, “it is well settled that the Court while considering an application for bail must not go into deep merits of the matter such as question of credibility and reliability of prosecution witnesses which can only be tested during the trial. Even ground of parity is one of the above mentioned aspects which are essentially required to be considered.”

The Bench also noted that the grant of bail is a discretion of judge and it must be exercised judiciously and in a humane manner, compassionately and not in whimsical manner.

The Bench relied on directions passed by Supreme Court in Aparna Bhat and others vs. State of Madhya Pradesh and another, 2021 SCC Online SC 230 in this regard and observed that,

“In the present case the victim is a minor girl who has narrated the incident in her statements that applicant brought adulterated cold drink and alongwith co-accused forced her to drink and thereafter she was raped. On gaining consciousness the victim found that applicant has made a video clip and taken photographs of the act and later on it was also posted on various platforms of social media. Prima facie the applicant has actively participated in the offence and conspired with co-accused to commit the offence.”

Lastly Bench noted that there werr serious allegations against applicant. Therefore, no case of bail was made out and the application was rejected.

 

[Case Title- Shan @ Sonu v. State of U.P]