Trial courts can depart from normal procedure, says Punjab and Haryana High Court

Saurabh Malik

Chandigarh, March 22

The Punjab and Haryana High Court has made it clear that the trial courts can make a departure from the normal procedure of granting bail to a rape case accused after the examination of the prosecutrix, if the same was being delayed to prolong the trial.

Grant of bail to rape accused after victim’s examination

“As a matter of prudence, the courts normally consider the bail after examination of the prosecutrix. However, in case the same is being misused by the parties to prolong the trial, the same has to be deprecated,” Justice Rajesh Bhardwaj ruled. The assertion came in a case where the prosecutrix failed to appear before the trial court despite the issuance of summons.

Appearing before Justice Bhardwaj’s Bench, the counsel for the accused had contended that the relationship between the prosecutrix and the petitioner was consensual, even if the allegations were taken on their face value. As such, the offence of rape under Section 376 of the IPC was attracted.

He added that the petitioner was declared a proclaimed offender, but was arrested and was behind bars since February 10, 2020. It was further submitted that the prosecutrix was intentionally not appearing before the trial court for her examination. “The purpose of not appearing before the trial court is only to prolong the custody of the petitioner”.

The state counsel opposed the plea, but “candidly” submitted that the prosecutrix did not appear before the trial court despite summons being issued to the prosecution. The case was now fixed for her examination before the trial court on March 29. As such, the petitioner did not deserve the concession of bail.

Justice Bhardwaj asserted that both the petitioner and the prosecutrix were of the “age of majority”. As argued by counsel for the petitioner on an earlier occasion, the prosecutrix had eloped with the petitioner. She had also deposed in her statement recorded under Section 164 of the CrPC that she went with the petitioner of her own free will.

Allowing the bail plea, Justice Bhardwaj added: “The court would refrain itself from commenting on the merits of the case, as the allegations and counter-allegations would be assessed only after evaluation of the complete evidence led by both sides before the trial court. Whether a case under Section 376 of the IPC is made out against the petitioner or not would be evaluated by the trial court after conclusion of the trial”.

Before parting with the order, Justice Bhardwaj added that the trial would take sufficiently long time before its conclusion. In the totality of facts and circumstances and without making observations on merits, the present petition was allowed.

What the court said

As a matter of prudence, the courts normally consider the bail after examination of the prosecutrix. However, in case the same is being misused by the parties to prolong the trial, the same has to be deprecated. — Justice Rajesh Bhardwaj