Shri Sandeep Singh @ Rinku v. The State

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** CRM(DB)/7/2023 Shri Sandeep Singh @ Rinku Vs.

The State Mr. Mohammed Tabraiz ... for the petitioner Mr. Sumit Karmakar ... for the State Mr. P.C.Das Mr. Arul Prasanth ... for the victim February 22, 2023 [SR] Item No.2 Heard Mr. Mohammed Tabraiz, learned counsel for the petitioner, Mr. Sumit Karmakar, learned Public Prosecutor and Mr. P.C.Das and Mr. Arul Prasanth, learned counsel for the victim.

Learned counsel for the petitioner has sought for bail in respect of the petitioner on the ground of parity. Learned Public Prosecutor in nutshell gave a gist of the entire occurrence before us culling the facts from the records.

The present petitioner, who is a businessman at Port Blair, established contact with the victim. The petitioner is alleged to have committed rape of the victim, after establishing contact with her. Then, thereafter also the victim on the undertaking of the petitioner opted to meet the Labour Commissioner for getting a job for her.

The Labour Commissioner is alleged to have taken the victim to the Ex-Chief Secretary, where offence under section 376(D) is alleged to have been committed by the Ex-Chief Secretary.

So far as the present petitioner is concerned, the allegation against him on record makes out a clear offence under section 120 B of IPC. Further the petitioner also being the first offender so far the act of ravishment of the victim is concerned, offence under section 376 IPC is made out against him.

Learned counsel for the victim relies on the decision in the case of Victim vs. State of Karnataka and another passed in Criminal Appeal No. 1981 of 2022 wherein in paragraph 2.5, Hon'ble Supreme Court Held thus:- "Having regard to the fact that while releasing respondent No. 2 - accused on bail the High Court has not taken into consideration the relevant aspects which are required to be kept in mind while considering the bail application, namely, seriousness of the offence alleged;

material collected during the investigation;

statement of the prosecutrix recorded under Section 161 of Cr.PC, etc., the impugned judgment and order passed by the High Court is unsustainable. Considering the fact that the chargesheet has already been filed, the accused is already charge sheeted and the relevant material is also now a part of the chargesheet, the same is required to be considered by the High Court. Therefore, the matter ought to be remitted to the High Court to consider the bail application afresh and pass appropriate orders after considering the relevant material/evidence collected during the investigation which are now a part of the chargesheet."

Relying on the aforesaid decision, it is submitted by Mr. Das, learned counsel for the victim that the Ex-Chief Secretary, being very influential, when he was posted here,

the victim, out of fear, did not lodge any FIR. But after he left, she lodged the F.I.R.

Learned counsel for the petitioner submits that the ExChief Secretary may be influential but when the present petitioner committed rape on the victim, she could have come forward to lodge FIR at least for her self preservation because at that time, neither the Ex-Chief Secretary nor the Labour Commissioner were in picture. In spite of such heinous act of the present petitioner, the victim kept relationship with the petitioner and utilized his service to get acquainted with the Labour Commissioner.

We are conscious of the position of law that the materials in the police papers including charge sheet, has to be accepted as such without adding or subtracting anything to and from such police papers to find out a prima facie case during consideration of the prayer for bail. If we go by the aforesaid dictum, we are one in our view with the learned Public Prosecutor that there is prima facie case under section 376 IPC individually against the petitioner and under section 120 B IPC so far as the offence under section 376 D is concerned.

However, many "ifs" and "buts" come into play during the submission of learned counsel for the parties, which according to learned Public Prosecutor, shall be taken care of at the stage of trial only and those questions cannot be gone into threadbare at this stage.

Learned Public Prosecutor is very right and fair in his submission. But, being Constitutional Court, besides the jurisdictional exercise by us under section 439 of Cr.P.C with the riders and conditions contained in Section 437 of Cr.P.C, can we close our eyes to the fundamental right of the petitioner under Article 21 of the Constitution of India and the petitioner should be left to seek his answers to various "ifs" and "buts" that arises on prima facie reading of the materials on record from the trial court after conclusion of trial. If that would have been the intention of the legislature, there would not have been various provisions in the Cr.P.C. for bail.

We should be alive to the salutary right of the accused that pertains to his liberty also and especially the right under Article 21 of the Constitution of India.

We are however one in our view with Mr.Das, learned counsel for the victim that the petitioner, in the event of his release on bail, may influence the victim as he had relationship with her.

Regard being had to the facts and submissions and our discussion supra, we are constrained to hold that this petitioner is equally entitled to the benefit of parity. Accordingly, the learned Chief Judicial Magistrate, Port Blair is directed to release the petitioner, on bail, in GR Case No. 658 of 2022 on such terms and conditions as deemed

just and proper by him in the facts and circumstances of the case, including the following conditions.

i) The petitioner shall appear before the Investigating Officer once in every alternative day in between 6 P.M. to 7 P.M. and give details regarding his whereabouts on the previous date. ii) The petitioner shall not threaten, induce or coerce any witnesses of this case in any manner whatsoever during the currency of this order. iii) The petitioner shall not keep any contact with any of the witnesses by any means of communication including communication through electronic devices like cell phone etc. iv) The petitioner shall not leave the jurisdiction of these Islands without obtaining prior permission from the court in seisin over the matter be it learned Chief Judicial Magistrate till commitment or be it the Trial Court after commitment.

When the petitioner leaves the islands with prior permission of the Court in seisin over the matter, condition No.1 shall automatically be relaxed during the period of his absence from the islands.

v) The petitioner shall appear before the Trial Court on each date of trial without fail subject, of

course, to the provisions under Section 315 CrPC in exceptional case.

With these aforesaid observations, the prayer for bail is allowed.

CRM(DB)/7/2023 is accordingly disposed of.

( Chitta Ranjan Dash, J.) ( Md. Nizamuddin, J. )