Sanjeev Sirohi
Published on: 12 February 2023 at 15:10 IST
It is really worth paying attention that the Patna High Court in a learned, laudable, landmark and latest judgment titled Kamla Kant Prasad vs The State of Bihar & Anr. in Criminal Miscellaneous No. 64184 of 2021 (arising out of PS Case No.-18 Year-2021 Thana – Mahila PS District – Gaya that was pronounced as recently as on February 8, 2023 has denied anticipatory bail to a suspended Deputy Superintendent of Police (DSP) who is accused of committing forceful sexual intercourse in 2017 with a minor girl, who was engaged as a maid for his wife.
Of course, there can be no gainsaying that a men in uniform and one who is accused of committing such a heinous crime must be denied bail and the same has been done accordingly!
While denying relief to the petitioner, it must be mentioned that the Single Judge Bench of Hon’ble Mr Justice Rajiv Roy clearly stated that, “The petitioner being a Police Officer was duty bound to protect the victim girl but he himself became a predator and in the process raped her and there was no one in the government quarter to save her from the alleged act of the petitioner.”
The Bench also while holding that the petitioner does not deserve the benefit of anticipatory bail said held that, “The petitioner being a Police Officer misused his official quarter where no staff was present due to ‘Dussehera’ time and allegedly raped the victim girl who was of the age of his daughter and in that background he does not deserve any relief.” Very rightly so! Such heinous offence and that too by a men in uniform and that too of a female who was of the age of his daughter makes a compelling ground for denying anticipatory bail to such person!
At the very outset, this remarkable, robust, rational and recent judgment authored by the Single Judge Bench of Hon’ble Mr Justice Rajiv Roy of Patna High Court sets the ball in motion by first and foremost putting forth in para 2 that, “Learned counsel for the petitioner is permitted and is granted to delete paragraph Nos. 5, 24 and 26 of the anticipatory bail application in course of the day.”
As we see, the Bench discloses in para 3 that, “The petitioner apprehends his arrest in connection with Mahila P.S. Case No. 18 of 2021 for the offence registered under Sections 6/9(I)(c) of the POCSO Act, Section 3(2)(v) of the SC/ST (POA) Act and Section 376(2)(a)(iii), 376(2)(b), 376(3) of the Indian Penal Code.”
To put things in perspective, the Bench envisages in para 4 that, “As per the prosecution story, the informant who is brother of the victim girl ‘X’ complained that his sister told her that during 2017 ‘Dussehra’ festival, while the petitioner was posted as Dy. S.P., Head Quarter, Gaya forcibly committed rape upon her in his Government quarter in the night where she had stayed for a night prior to coming to Patna to serve as a Maid to the petitioner’s wife. The further allegation is that the date of birth of his sister being 16.05.2003, she was minor at the time of occurrence, she narrated her ordeal to her brother followed by the present FIR in 2021.”
Be it noted, the Bench then observes aptly in para 20 noting clearly that, “Having gone through the rival submissions put forward by the learned Senior Counsels as also learned Spl. P.P. , in the considered view of this Court:
(i) so far as the delay in lodging of the FIR is concerned, from the record/case diary, it is clear that very next day in 2017 itself, the victim girl explained the incident to the petitioner’s wife who in turn informed the Officer In-charge of the Women Police Station, Gaya Mrs. Meera Kumari but the lady after her visit to the petitioner’s office where she was scolded, chose to remain silent as she waited for the victim girl/her brother to come to lodge FIR and in its absence, she did not proceed further;
(ii) regarding the submissions put forward by the learned Senior Counsel for the petitioner that the girl was not minor at the time of the alleged rape, this Court finds force in the submissions put forward by the learned Senior Counsel for the victim girl/informant that once the school certificate incorporating her date of birth as 16.05.2003 is on record, the same will have primacy over and above any observation/opinion given by the Medical Officer;
(iii) the petitioner being a Police Officer was duty bound to protect the victim girl but he himself became a predator and in the process, raped her and there was no one in the government quarter to save her from the alleged act of the petitioner.”
It cannot be glossed over that the Bench points out in para 25 that, “In this case, the fact remains that the case was lodged in 2021 and on 07.10.2021, when the Criminal Appeal (SJ) No. 304 of 2021 was dismissed and interim stay vacated, the petitioner was duty bound to appear before the concerned court as there was no order granting interim relief to him. In that background, when the cognizance was taken on 18.02.2022 as he never appeared before the concerned Court, he was declared an absconder. It is another matter that on 19.07.2022 when the case was taken up by the co-ordinate Bench of this Court, interim protection was granted to him.”
It would be instructive to note that the Bench mentions in para 28 that, “Mrs. Usha Kumari I, learned Spl. PP on the other hand has cited a case of the Hon’ble Supreme Court of India in the case of Bachu Das Vs. State of Bihar and others reported in 2014(3) SCC 471 in which it has been observed as under:
“It is clear that the learned Magistrate carefully perused the complaint petition, as well as the statement of the complainant and four witnesses examined during enquiry and arrived a prima facie conclusion against the accused persons that offence under Sections 147, 148, 149, 323, 448 I.P.C. and Section 3 of the SC/ST Act, is made out. In such circumstances and in view of the bar under Section 18 of the SC/ST Act, the learned counsel relying on the decision of this Court reported in (2012) 7 SCC 795 [Vilas Pandurang Pawar and Another v. State of Maharashtra and others], submitted that the High Court is not justified in granting anticipatory bail. In similar circumstances, this Court has considered the offence under Section 3(1), as well as the bar provided under Section 18 of the SC/ST Act and concluded as under:
“Section 18 of the SC/ST Act creates a bar for invoking Section 438 of the code. However, a duty is cast on the court to verify the averments in the complaint and to find out whether an offence under Section 3(1) of the SC/ST Act has been prima facie made out. In other words, if there is a specific averment in the complaint, namely insult or intimidation with intent to humiliate by calling with caste name, the accused persons are not entitled to anticipatory bail.
The scope of Section 18 of the SC/ST Act read with Section 438 of the Code is such that it creates a specific bar in the grant of anticipatory bail. When an offence is registered against a person under the provisions of the SC/ST Act, no court shall entertain an application for anticipatory bail, unless it prima facie finds that such an offence is made out.
Moreover, while considering the application for bail, scope for appreciation of evidence and other material on record is limited. The Court is not expected to indulge in critical analysis of the evidence on record. When a provision has been enacted in the Special Act to protect the persons who belong to the Scheduled Castes and the Scheduled Tribes and a bar has been imposed in granting bail under Section 438 of the Code, the provision in the Special Act cannot be easily brushed aside by elaborate discussion on the evidence.”
In the light of the factual details, as found in the order of the learned Sessions Judge, Saran at Chapra, dated 28th November, 2008, and in the light of the statutory provisions as interpreted by this Court in the above cited decision, we are satisfied that the High Court has committed an error in granting anticipatory bail. Accordingly, the said order is set aside. The respondent Nos. 2 to 8/accused are granted four weeks time from today to surrender before the appropriate Court and seek for regular bail.””
As a corollary, the Bench then hastens to add in para 29 stating that, “Taking into account all the aforesaid facts as also the judgments cited by the respective counsels, this Court is convinced that the victim girl has fully narrated her ordeal and only because the FIR was not lodged at that particular time due to inaction on the part of the concerned Police Officer present in the Women Police Station under the influence of the petitioner, that cannot be the ground for brushing aside the contents of the case.”
Most significantly, the Bench mandates in para 30 holding that, “The petitioner being a Police Officer misused his official quarter where no staff was present due to ‘Dussehera’ time and allegedly raped the victim girl who was the age of his daughter and in that background he does not deserve any relief.”
Most forthrightly, the Bench then directs in para 31 that, “This Court thus does not find any merit in the anticipatory bail application filed by the petitioner herein which is accordingly rejected.”
Finally and for clarity’s sake, the Bench concludes by clarifying in para 32 that, “Nothing recorded in the order shall be taken up for consideration at the time of Trial as the same has been observed only for the purpose of considering the anticipatory bail petition of the petitioner.”
In sum, we thus see that the Patna High Court after going into the merits of the case very rightly denies anticipatory bail to a DSP accused of raping a minor maid in government quarter.
It merits no reiteration at all that when a heinous offence of rape is committed by a men in uniform and that too in his government quarter then there can be no protection of any kind for such officer as the Patna High Court also reiterated in this leading case! We thus find so very commendably that the Patna High Court denies anticipatory bail to the DSP accused in this leading case and all the courts in similar such cases when such heinous crime is committed by a men in uniform must also act accordingly! No denying it!
Sanjeev Sirohi, Advocate