IN THE MATTER OF :-
Applicant's name: APPLICANT/ACCUSED
VERSUS
STATE OF NCT OF DELHI: RESPONDENT
FIR No. FIR number
Under Section : 6 of POCSO Act
Read with Sections 118/506 IPC
P.S.: Police station
REPLY TO THE APPLICATION UNDER SECTION 439(2) Cr.P.C. FILED BY THE APPLICANT, SMT. Prosecutrix's name / PROSECUTRIX, FOR CANCELLATION OF THE BAIL GRANTED TO THE ACCUSED, Name of accused
MOST RESPECTFULLY SHOWETH:-
PRELIMINARY OBJECTIONS:
1.That the applicant/prosecutrix has no locus standi to file the present application for cancellation of bail, as she cannot be treated on par with the Public Prosecutor. It is for the prosecution to satisfy itself whether, by granting bail, the accused is likely to interfere with the trial or with the evidence; and if the prosecution finds that the accused is conducting himself in a manner prejudicial to the interests of the prosecution, it is open to the prosecution to file an application or to bring the matter to the notice of the Court for cancellation of bail. The aforesaid position does not authorise a private person to step into the shoes of the Public Prosecutor and file an application under Section 439(2) Cr.P.C.
2.That the present application is absolutely baseless and devoid of any merit, and does not disclose any ground whatsoever for cancelling the bail granted by this Hon'ble Court vide order dated Date of bail order.
3.That the present application moved by the applicant/prosecutrix as well as her mother, namely Smt. Name of prosecutrix's mother, is not maintainable and is liable to be dismissed on the ground that the accused has not violated any of the conditions imposed by this Hon'ble Court in its bail order dated Date of bail order.
4.That the prosecutrix and her mother have roped in the accused and his father into the present case, which is wholly false, and have done so in order to take revenge, as they had declined the proposed marriage between the prosecutrix and the accused, Name of accused.
5.That the marriage between the prosecutrix and the accused was declined by Name of accused's father on account of the repeated unjustified demands and greed of the mother of the prosecutrix, and the same has resulted in the false FIR and the false case.
6.It is submitted that, after his release on bail, the accused is complying with all the terms and conditions imposed upon him and has not misused the liberty of bail granted to him by this Hon'ble Court.
7.It is submitted that the present application has been moved on the basis that the accused, Name of accused, and his father are continuously extending threats to the prosecutrix and her family members through different known persons, asking them to withdraw the prosecution case, to not appear before this Hon'ble Court, and to compromise the matter, failing which she and her entire family would have to face dire consequences.
8.It is submitted that all the aforesaid allegations levelled by the prosecutrix and her mother in the application under reply are totally false, bald and vague, and there is not even an iota of truth in the application, as the same has been moved only to further humiliate and harass the applicant and his family members.
9.It is submitted that the provision for cancellation of bail is contained in Section 439(2) Cr.P.C., which contemplates that the Court of Session or the High Court may cancel the bail granted to an accused. The said provision is reproduced hereunder for ready reference:
"439(2) - A High Court or Court of Sessions may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody."
10.It is submitted that bail is a vital and crucial right of an accused, enshrined under the right to freedom, and once a person is released on bail, it is only in exceptional circumstances that the courts cancel his bail. The pre-conditions, as laid down by various courts, for the cancellation of bail may be summarised as under:
a.The interference, or attempt to interfere, by the accused with the due course of administration of justice.
b.The evasion, or attempt to evade, by the accused of the course of justice.
c.The abuse by the accused of the liberty granted to him by the court.
d.The misuse by the accused of his liberty by indulging in similar criminal activity.
e.The interference by the accused with the course of the investigation.
f.The attempt by the accused to tamper with the evidence or the witnesses.
g.The threatening of witnesses by the accused, or his indulgence in similar activities.
11.In the case of Dolat Ram vs. State of Haryana, 1995 (1) SCC 349, the Hon'ble Supreme Court of India held as under:-
"Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of Justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. These principles, it appears, were lost sight of by the High Court when it decided to cancel the bail, already granted. The High Court it appears to us overlooked the distinction of the factors relevant for rejecting bail in a non bailable case in the first instance and the cancellation of bail already granted."
12.It is submitted that none of the pre-conditions mentioned in paragraph 10 above exists in the present case, and hence there is absolutely no basis for this Hon'ble Court to cancel the bail of the accused. In fact, the applicant, who is the mother of the prosecutrix, is actuated by malice, and the application is per se devoid of any merit.
13.In the case of State Through Delhi ... vs. Sanjay Gandhi, AIR 1978 SC 961, it is held as under:-
"Rejection of bail when bail is applied for is one thing; cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial. The fact that prosecution witnesses have turned hostile cannot by itself justify the inference that the accused has won them over. A brother, a sister or a parent who has seen the commission of crime may resile in the Court from a statement recorded during the course of investigation. That happens instinctively, out of natural love and affection, not out of persuasion by the accused. The witness has a stake in the innocence of the accused and tries therefore to save him from the guilt. Likewise, an employee may, out of a sense of gratitude, oblige the employer by uttering an untruth without pressure or persuasion. In other words, the objective fact that witnesses have turned hostile must be shown to bear a causal connection with the subjective involvement therein of the respondent. Without such proof, a bail once granted cannot be cancelled on the off chance or on the supposition that witnesses have been won over by the accused."
14.In the case of Bhagirath Sinha S/o Mahipat Singh ... vs. State of Gujarat, AIR 1984 SC 372, it is held as under:-
"Very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail. And the trend today is towards granting bail because it is now well-settled by a catena of decisions of this Court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed. The only material considerations in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidence."
REPLY ON MERITS
1-2. That the contents of paragraphs 1-2 of the application are not denied, as they are a matter of record.
3.That the contents of paragraph 3 of the application are wrong and denied. It is denied that any notice to the prosecutrix or the Investigating Officer was required before the hearing of the application for bail. It is submitted that the charge sheet was filed on Date of filing of the charge sheet. The application for bail was filed by the accused on Date of filing of the bail application, and in terms of Section 31 of the POCSO Act, a copy of the bail application was duly supplied to the learned SPP present in Court. The bail application was heard by this Hon'ble Court on Date on which the bail application was heard after hearing both the counsel for the accused and the learned SPP. Hence, all the relevant facts of the case were before this Hon'ble Court at the time of the hearing of the bail application. It is absolutely wrong to allege that, for the hearing of the bail application, there was any need to issue notice to the prosecutrix or to hear her counsel. It is equally wrong to state that the same is contrary to the principles of natural justice. It is submitted that, in terms of Section 31 of the POCSO Act read with the proviso to Section 439(1) of the CrPC, the only requirement is to give notice of the application for bail to the Public Prosecutor. In the present case, not only was notice of the bail application given to the learned SPP, but the bail application was also heard by this Hon'ble Court after hearing both the counsel for the accused and the learned SPP.
4-5. That the contents of paragraphs 4-5 of the application are wrong and denied. It is denied that the accused concealed very important facts from this Hon'ble Court. It is further denied that the accused concealed the fact regarding the execution of an affidavit/MOU mentioning that the accused had established forcible physical relations with the prosecutrix at the very tender age of Age of the prosecutrix stated in the alleged affidavit/MOU years. It is submitted that the copy of the document alleged to be an affidavit/MOU is a false and forged document, and even the said document does not disclose any forcible physical relations with the prosecutrix. It is further submitted that neither the prosecutrix nor her mother produced this document at any stage during the investigation. Not only this, none of the statements of the prosecutrix or her mother recorded during the investigation contain even the slightest indication of the existence of any such document. Hence, no reliance whatsoever can be placed upon such a document.
6.That the contents of paragraph 6 of the application are absolutely wrong and denied. It is denied that there is sufficient material on record to establish that the accused committed the act of rape upon a minor. It is submitted that the prosecutrix has been used as a tool by her parents to take revenge upon the accused and his father, as they refused to proceed with the marriage on account of the repeated unjustified demands and greed of the mother of the prosecutrix, which has resulted in the false FIR and the false case.
7.That the contents of paragraph 7 of the application are a matter of record. It is, however, submitted that tearing of the hymen is not attributable to a single cause. There are various factors which may cause tearing of the hymen; the hymen can stretch or tear as a result of various activities. Tearing of the hymen does not establish that there was any penetration or sexual intercourse between the prosecutrix and the accused.
8.That the contents of paragraph 8 of the application are absolutely wrong and denied. It is denied that the contents of the application are totally false to the knowledge of the prosecutrix and her mother. The name of not even a single known person has been mentioned in the paragraph under reply to show that any threat was extended to the prosecutrix or her family members. The fact that the allegations made in the paragraph under reply are totally wrong is borne out from the statement of the prosecutrix already recorded on Date of recording of the prosecutrix's statement.
9.That the contents of paragraph 9 of the application are absolutely wrong and denied. There is nothing in the paragraph under reply to show how the accused has violated the order dated Date on which the bail application was heard or misused the liberty of bail granted to him. The allegations are totally vague, false and bald, and have been levelled merely as a pressure tactic.
10.That the facts stated in the preceding paragraphs do not make out any case against the accused for cancellation of his bail.
The prayer clause is without any basis, and the application is therefore liable to be dismissed.
PRAYER
It is, therefore, most respectfully prayed that this Hon'ble Court may kindly be pleased to dismiss the present application in the interest of justice.
DELHIAPPLICANT
THROUGH
DATED:
Date of filing
COUNSEL FOR THE APPLICANT