On pretext of removing evil spirit from body of a woman who was bipolar in nature, a man lured woman and committed sexual intercourse, but ADJ granted bail: Will HC cancel his bail? Del HC analyses

Delhi High Court: Mukta Gupta, J., cancelled the bail of an accused who lured a female on the pretext of removing an evil spirit from her body and further committing sexual intercourse with her.

The present petition sought to set aside the order and consequential cancellation of bail granted to respondent 2.

The present petition was filed by the father/legal guardian of the victim who was a female aged 37 years, was suffering from bipolar mental disorder episodic mania and psychotic features since 2002 and was diagnosed to be suffering from the mental disorder in 2015 with mania shortly after her marriage.

Due to the above, victim’s husband had also initiated divorce proceedings.

Contentions

Petitioner’s counsel assailed the impugned order, stating that even though the Additional Sessions Judge called for the report of IHBAS, however without waiting for the final report passed the impugned order granted bail to respondent 2 who was arrested.

While granting bail, Trial Court took notice of the initial statement of the victim recorded before the police, however, failed to notice her detailed statement under Section 164 CrPC before the Metropolitan Magistrate.  The mobile phone of the accused showed the mobile number saved with the title ‘376’ and the accused transferred photos of the victim to the said number.

Further, the statement of the prosecutrix recorded under Section 164 CrPC and the call detail record had shown that the prosecutrix came in touch with respondent 2 three days prior to the dates when he lured the prosecutrix on the pretext that there was an evil spirit of a dog in her body which needs to be removed.

After taking the prosecutrix to Nainital instead of Vaishno Devi by putting vermilion in her head, the prosecutrix was made to believe that they were married and committed sexual intercourse with her. Statement of the prosecutrix recorded by the Metropolitan Magistrate clearly had shown that she was threatened.

Respondent 2 took undue advantage of her medical condition and lured her and committed the offence of rape on her punishable under Section 376(2)(1) IPC wherein the sentence awarded was not less than 10 years imprisonment.

Hence, while granting bail to respondent 2, the trial court failed to consider the legal principles applicable for grant of bail. Respondent 2 had no clean antecedents.

Victim’s Statement

She submitted that her divorce proceedings were going on and she was residing with her parents and suffering from depression. Shiva used to reside in a temple in her neighbourhood and he started speaking to her and told her that they would go to Nainital and without telling her family members she went with him.

At Nainital, they established a physical relationship and the police reached and brought them to the police station.

The decision of Additional Sessions Judge

After noting the contentions of the parties, ADJ held that the video of the accused and the prosecutrix played in the Court prima facie showed that the prosecutrix was conscious, oriented and aware of the nature of the act.

The prosecutrix was seen voluntarily accompanying the accused and her consent did not appear to be vitiated by any kind of mental disorder. The Additional Sessions Judge further held that admittedly the bipolar mental disorder does not permanently affect the mental status of the person concerned.

The condition of victim was not a permanent mental disorder and temporarily impacted the medical condition only if there was an episodic attack and the time period for which it lasted was variable. Hence, it only involved mood fluctuations that may or may not lead to legal insanity.

Trite Law

Cancellation of bail granted can be directed either because the order granting bail is perverse, illegal contrary to law or unjustified or if the accused violates the conditions of grant of bail such as tampering with the evidence, interfering with the investigation, influencing the witnesses or fleeing away from justice.

In the present matter, the petitioner sought cancellation of bail on the ground that the order granting bail was perverse, illegal and contrary to the settled principles of grant of bail.

High Court held that, Additional Sessions Judge failed to notice that the respondent 2 was living in the neighbourhood of the prosecutrix, thus was aware of the mental faculties of the victim and taking advantage thereof, as her marriage was broken and she was eager to get married, he lured her stating that he would get the evil spirit out of her soul, get her married to a boy.

The Bench expressed that, trial Court failed to notice that consciousness and orientation are different from being able to exercise sound mental judgment and to realise that the victim is being enticed to fall prey to the accused.

What factors are to be considered while granting bail?

(i) whether there is any prima facie or reasonable ground to believe that ` the accused had committed the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released on bail;

(v) character, behaviour, means, position and standing of the accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail.

Noting the gross illegality of the ASJ decision which also ignored the statement of the prosecutrix recorded under Section 164 CrPC, the seriousness of offence, that the statement of the prosecutrix was still to be recorded before the Trial Court, and that respondent 2 was living in the vicinity of the prosecutrix and was thus likely to influence the prosecutrix by luring her again and/or intimidating her, this High Court set aside the impugned order.

Hence bail was cancelled. [X v. State (NCT of Delhi), 2022 SCC OnLine Del 656, decided on 4-3-2022]


Advocates before the Court:

For the Petitioner:

Mr Shreeyash U.Lalit and Mr Tarun Narang, Advocates.

For the Respondents:

Ravi Nayak, APP for State with SI

Manju Yadav, PS Vikaspuri.

Mr. Abhay Kumar, Advocate for R-2.

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