The Calcutta High Court while rejecting the bail application of the petitioners, accused of the gang-rape observed that gang rape is a very grave offence.

The court believed that its gravity is not only premised on the severity of punishment prescribed in law but also has an indelible impact on the psyche of the victim.

The Division Bench of Justice Joymalya Bagchi and Justice Gaurang Kanth passed this order while hearing a bail application filed by Madhav Agarwal & Ors.

The bail application has been filed under Section 439 of the Code of Criminal Procedure in connection with Rajarhat Police Station Case dated 11.11.2022 under Sections 328/376D of the Indian Penal Code.

Senior Counsel for the petitioners submitted they are in custody for more than eight months. Victim had gone to the birthday party of one Yogesh Mishra, the third petitioner. At the party she did not raise any allegation of forcible rape. On the next day, she returned home and complained that she had been raped. Allegation of rape is an after thought and has not been supported by medical evidence or other witnesses on record. Most of the vulnerable witnesses have been examined. Hence, petitioners may be enlarged on bail.

Counsel for the State submitted that the victim had gone to attend the birthday party. At the birthday party she was forced to consume alcohol and after consuming it she became unconscious. When she woke up she found herself in a room with the petitioners. Second petitioner was on her body and others were also present. Subsequently they also raped her. In the morning she left the venue and reported the matter to her friend and was medically treated. DNA report shows a match between the blood sample of the second petitioner and the swab taken from the victim. Her deposition is supported by the aforesaid DNA report and other incriminating circumstances. He opposes the bail prayer and assures the Court that the trial shall be concluded at an early date.

Counsel for the victim further submitted her evidence read in the light of Section 114A of the Evidence Act proves lack of consent. A DNA analysis report corroborates the allegation of sexual intercourse. Minor contradictions in the version of witnesses cannot be a ground to refute the prosecution case. During trial the victim was threatened by a relation of a co accused. She had to approach this Court to ensure police protection. It is apprehended that in the event the petitioners are enlarged on bail she would be subjected to further intimidation and her quest for justice will remain illusory.

“Gang rape is a very grave offence. Its gravity is not only premised on the severity of punishment prescribed in law but the indelible impact it leaves on the psyche of the victim. Victim stated that she had gone to the birthday party of the third petitioner. At the birthday party she was offered alcohol and had consumed it. Thereafter she became unconscious. Upon regaining her consciousness she found that she was almost undressed and a second petitioner was on her body. Other petitioners were also present in the room and they forcibly raped her. In the morning, she left the venue and went home. After reaching home, she informed her friend and was medically treated.

Under such circumstances, we are of the opinion of the gravity of the offence and the evidence adduced in support of the allegation militates against the plea of bail at present.

With regard to other issues like threat and/or intimidation, the Court places on record the incident of threat upon the victim held out by one of the relations of a co-accused during trial. This was brought to the notice of the Court earlier and orders had to be passed to restrain the movement of the said person who had intimidated the victim. The Court was also constrained to take note of lack of co-operation on the part of police administration to strongly act against the perpetrator and the manner in which the victim was treated in the course of the investigation1. These unfortunate circumstances give an impression of deep and pervasive influence of the petitioners and co-accused over police administration. Accordingly, we are of the view that release of the petitioners on bail would encourage these activities and severely impair the smooth course of administration of justice by derailing the trial. Under such circumstances, we are not inclined to grant bail to the petitioners”, the Court observed while rejecting the bail application.

The Calcutta High Court has disposed of a Public Interest Litigation (PIL) filed with a prayer to transfer the investigation of a case dated April 21, 2022 to the Central Bureau of Investigation (CBI) or to the Special Investigation Team (SIT) headed by a retired Judge of the High Court.

In the petition it is alleged that on March 1, 2022, a Class 12 student was drugged and subjected to aggravated sexual assault and this incident was videographed and later released in social media resulting in a subsequent gangrape by the four persons named in the FIR. The report of the incident was lodged by the victim’s father on 21.04.2022. The accused were arrested but the petitioner being a public spirited person dissatisfied with the investigation has approached the High Court.

The Advocate General had filed the report in the form of an affidavit dated May 6, 2022 disclosing the steps taken by the investigating agency. Thereafter, he has been informed that the investigation is complete and a charge sheet has been filed.

The submission of the counsel for the petitioner is that there are lapses in the investigation and that DNA analysis has not been done and that steps which were required in terms of the Standard Operating Procedure (SOP) for investigation have not been fully taken.

As against this, the submission of Advocate General is that if there is any lapse in investigation then the aggrieved party has a remedy under Section 156(3) of the CrPC before the concerned Magistrate and that DNA is not necessary in every case and that option is still available and proper investigation in the matter is done, no circumstances exists for transferring the case to the CBI.

Having heard the Counsel for the parties and on perusal or the record, the Division Bench of Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj noted that the petitioner has not placed the charge sheet on record for demonstrating any lapse in the investigation. The counsel for the petitioner has mainly advanced arguments on the basis of Standard Operating Procedure (SOP) but has failed to point out any statutory force of this SOP.

The Court observed that any lapse or non-compliance is required to be demonstrated with reference to the material which has been collected during the investigation and which form a part of the charge sheet which in the present case has not been done. Even otherwise, once the charge sheet is filed the aggrieved party has full opportunity to demonstrate before the concerned Magistrate under Section 156(3) of Cr.P.C. if there is any lapse in the investigation and to pray for further investigation.

It is relied by the High Court that the Supreme Court in the matter of Sakiri Vasu vs. State of Uttar Pradesh and Others reported in (2008) 2 SCC 409 has held that the power of Magistrate to order further investigation under Section 156(3) is an independent power and does not affect the power of the investigating officer to further investigate the case even after submission of report under Section 173(8) of the Code. Thus, the Magistrate can order reopening of the investigation even after the police report is submitted if he is satisfied that proper investigation has not been done.

In the matter of Rajiv Ranjan Singh ‘Lalan’ (VIII) and Another vs. Union of India and Others reported in (2006) 6 SCC 613, the Supreme Court has placed reliance upon its earlier judgment in the matter of Union of India and Others vs. Sushil Kumar Modi and Others reported in (1998) 8 SCC 661 wherein it is held that once a charge sheet is filed in the competent Court after completion of the investigation, the process of monitoring by the Court comes to an end.

Advocate General has place reliance upon the judgment of the Supreme Court in the matter of Disha vs. State of Gujarat and Others reported in (2011) 13 SCC 337 wherein the Hon’ble Supreme Court taking note of the earlier judgment on the point has opined that the cases were transferred to the CBI or other special agency when the Court was satisfied that accused had been very powerful and influential person or State authorities like high police officials were involved and the investigation had not proceeded with in proper direction or it had been biased, in order to do complete justice and having belief that it would lend the final outcome of the investigation credibility.

Advocate General had also relied upon the judgment of the Division Bench of this Court in the matter of Director General of Police (W.B.) and Others vs. Gopal Kumar Agarwal and Another reported in 2020 SCC OnLine Cal 755 wherein it is held that the Magistrate has sufficient powers under the Cr.P.C. to order further investigation and to ensure defects/loopholes in the investigating process are remedied.

He has also relied upon the judgment of the Supreme Court in the matter of Sunil vs. State of Madhya Pradesh reported in (2017) 4 SCC 393 in support of his submission that non-holding of DNA test is not fatal.

Having examined the present case in the light of the above pronouncement, the bench noted that there is no proper allegation of bias investigation in the case. It has not been pointed out that the accused are highly influential persons or they are connected to any particular political party or are influencing investigation. Only allegation in the present petition is that the local Councilor had demanded release of the accused persons, but even that allegation is unsubstantiated.

Hence, in the aforesaid circumstances of the case, the Court does not find any justification to transfer the case to the CBI.

New Delhi (ILNS): The Delhi High Court has not shown any mercy to a father who had raped his stepdaughter and upheld a lower court’s judgment in the case. The court dismissed a plea challenging the lower court’s order convicting the appellant for committing aggravated penetrative sexual assault on his stepdaughter under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

Justice Vibhu Bakhru noted in his judgment:

“Although at the material time, the minimum punishment for committing the said offence was seven years of rigorous imprisonment, this court concurs with the trial court that this is not a case where any leniency is required to be shown.”

The appeal has been filed by the convict sentenced to rigorous imprisonment for a period of 20 years with a fine of Rs 5,000 for repeatedly raping his stepdaughter who was aged around 13 years at the time.

Later, in 2014, the girl submitted the statement that “that she wanted her father (the appellant) to be released. She stated that her father used to beat her and therefore, she made a false complaint against him.”

The counsel appearing for the appellant challenged the judgment on the ground that the prosecution’s case mainly rested on the testimony of the girl and it was evident that the same could not be relied upon as the initial statement made by the appellant was in variance with her statement made before the trial court.

However, the bench relied upon the results of the DNA analysis report after the girl was reported pregnant which stated that

“DNA Profiling (STR analysis) is sufficient to conclude that the source of exhibit ‘lh’ (Blood sample of the victim) is the biological mother and the source of exhibit ‘2’ (Blood gauze of accused) is the biological father of source of exhibit ‘3’ (foetus).”

The bench noted that the report “…leaves no room for doubt that the petitioner had committed the offense for which he was charged. Thus, the prosecution has established its case beyond any reasonable doubt and therefore, the impugned judgment convicting the appellant for committing the offense punishable under Section 6 of the POCSO Act and Section 506 IPC cannot be interfered with and is upheld.”

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Read the judgment here;

-ILNS