CONTEST BAIL PETITION

1. The counsel will begin with the argument that the petition is not maintainable. Where

the police had already added the offence under the POCSO Act in the FIR, only the

Special Court under the POCSO Act could have entertained the bail application under

the said Act. As held in the case of Ramu Ram vs. St. of Rajasthan and Ors. RLW

2014 (2) RAJ 987

2. Further, the petitioners have raised the issue of delayed FIR that the current incident

took place on 03.01.2024, however the informant being the father of the alleged

victim reached before the police office after passing of 2 days of the incident. Both

the accused and the victim study in the same college and same batch. There have been

previous incidents of the accused troubling the victim by interacting with her without

her permission and indecently touching her quite a few times when he saw her in the

campus, lurking around her in the campus and making attempts to contact her through

her friends. She repeatedly tried dealing with him and urging him to stop with these

activities but all her efforts were in vain. All of this trouble from a boy in the college

disturbed her and she talked about it to her family so her parents went to the college

and confronted him calmly about it and told him to stop. But after family intervention

he got aggravated and started harassing her with his fake love confessions which she

repeatedly rejected. After this the matter escalated and both the families got involved

because her parents asked the accused’s parents to make him understand. However,

the accused’s father began arguing with victim’s father and flexed his connections

with politicians and said, “Humare bete pe ungli na uthaiye aur usko pareshan karna

band kariye, kya cheez ka karobar h aapka? Sab band karwa denge” Victim’s friend is
present here in the court as a witness to this past history. This troublesome history

created an obvious suspicion in the informant’s mind that the person who has

kidnapped his daughter was none other than accused. Therefore, after the incident the

family tried calling the accused over and over but he didn’t pick. These families

belong to lower middle class, as repeatedly asserted by the defense counsel, so due to

the social stigma associated with the matter of a girl of a household getting

kidnapped, they were hesitant in reaching out to the police immediately. Also a few

days before the incident the victim’s nikah was fixed with a boy and the pressure of

keeping the incident secret from the would- be in laws prompted them to not let the

matter slid outside and decided to handle it alone. The accused wasn’t picking the

calls so the informant called other people who might know of his whereabouts but to

no avail. After being tensed and worried overnight, in the morning of 4th January as

soon as the daylight broke, at around 6. 30 am, he went to the accused’s home but he

wasn’t home while his parents started arguing with the informant. Then the informant

also came to the college where he inquired a lot and through his friends he got to

know that the accused has gone to CUSB, Gaya for a competition. He came back

home discussed things with his family and then looked up for CUSB’s contact

number and made a string of calls. However, it was late evening now so the official

hours were over and nobody picked except for one of the calls on which the receiver

told the informant “Abhi to college office band hogya h aap kal call kariyega” So The

informant decided to leave for Gaya the very next morning on 5th January and

approach the college authority the very morning and so he did. There at CUSB he was

referred to the MCC convenor who informed him that the competition got over
almost one and a half hours ago and the teams were deported back to their

accommodations to pack their luggage and vacate the rooms. (The convenor can be

called as witness if the court orders) The convenor also told him the address of the

accommodation “Sanjeevni Inn” which was merely 10 minutes away so The

informant went there and found out in the Hotel register that the accused stayed in

Room no. 59 and vacated the same at 12:45 PM. Hopeless they searched around the

place for him but couldn’t fin so they returned to Patna by 6pm Bus and after

reaching Patna at 10 he again went straight to The accused’s house in the hopes of

finding him there now. Yet again the accused wasn’t there and his parents were

making a huge dal out of the fact that the informant was disturbing them again and

again, which was witnessed by their neighbor as he came outside to check what the

commotion was all about. The informant waited outside their house for a few hours

and then retuned his house at around 3am of 6th January. He was discussing

everything with his family and deciding his next step when at 5 am he got a call from

the accused who said that “Humko kutte ki tarah dhoondiye mat, bhut jaldi tha na

aapko The victim ka nikah karane ka, humko use nikah karna hai varna hum use jaan

se mar denge” to which The informant replied that “Aaoge yaha tb na nikah

karwayenge, qazi se rasam ka baat bhi to karna h” in order to smartly convince him to

bring his daughter back and instead of replying The accused hung up. Now sure and

certain of the fact that the accused has kidnapped the victim, the informant went

straight to the police station and lodged the FIR. The tickets of the informant and his

brother’s travel ‘From Patna to Gaya on 5th January Dep- 8 am, Arr.- 12 pm” and
 ‘From Gaya to Patna on 5th January Dep- 6 pm, arrival 10 pm’ has been attached in

the annexure.

Supreme court in State of Himachal Pradesh v. Srikant Adhikari has held that

Delay in lodging first information report cannot be used as a ritualistic formula for

discarding prosecution case and doubting its authenticity. The court also expressed

that where the prosecution has not only explained the reasons but also led cogent

evidence to substantiate the stand as to why there was delay, the delay in lodging the

FIR won’t make prosecution case brittle. Further in Harpal Singh v. State of

Himachal Pradesh the court condoned a delay of 10 days in the lodging of FIR

because the delay was due to the considerations of the honor of family being at stake

and the social stigma attached with the girl who becomes the victim of such crimes.

In a very latest case of Hariprasad alias Kishan Sahu v. state of Chhattisgarh, the

court condoned the delay of 10 days upon satisfactory explanation and said that it

would in no way harm the prosecution case and is not a mitigating factor for the

accused to raise as a defense. In a very popular case of Patna High Court, Pooran

Singh v. State of Bihar, a delay in filing of FIR of 8 months after the incident and 5

days after the kidnapped girl was found by the family was condoned by the court

where court said that when crimes related to women are committed the question on

their morality and chastity arises due to which the family hesitates in filing the FIR.

Thus, the delay of 2 days in filing the FIR in the present sufficiently explained with

the hesitations and efforts of the victim’s father should be condoned by the court.

3. The petitioners have pleaded Alibi in para 10 of the Bail petition where they state

“that the present petitioner was not in Patna on the date of occurrence and went to
Gaya for participating in a Moot Court Competition where the petitioner got himself

registered in the entry register of the university and also received 2 gold medals on

05.01.2023.” – The General rounds of the Competition took place on 3 rd and the

accused’s team ‘Team 19’ was accommodated in the second half scheduled at 1pm to

2:30 pm. (The MCC convenor of CUSB can be called as a witness on the matter)

while the kidnapping took place at night 9.15. There is no record of his activities on

that day post the competition. In the recent case of Pappu Tiwari v. State of

Jharkhand, S.K. Kaul J. has himself said in the judgment that the plea of alibi is

required to be proved with certainty so as to exclude the possibility of the presence of

the accused at the place of occurrence. This is absolute sententia non indiget that he

had plenty time to come back to Patna and commit the alleged crime because the

distance between Gaya and Patna by own vehicle is merely 3 hours and 24 minutes

and by bus is merely 4 hours which is. As per 103 evidences act the petitioners have

to prove that he was elsewhere at the time of incident which has not be sufficiently

explained in order to shift the burden as they have merely stated that he was in Gaya

that day in general but there is solid proof from the defense as to where he was at the

moment of the incident. The duty of the prosecution in such incidences is merely to

show a possibility that the accused had the opportunity to commit the crime alleged of

as has been held by the Supreme court in the case of Doodhnath Pandey v. state of

Bihar. The prosecution giving proves for the possibility that he was in the area are

enough to believe in the possibility that the accused was not in GAYA rather in Patna

at the time of the incident. The Cellular Tower Location in the CDR of the accused

are attached as annexure which show the traversing of his mobile device in the
 Mithapur, Patna area at the time of incident. The Supreme court in the very popular

case of Mukesh v. state of NCT Delhi has held that the plea of alibi shall be rejected

on the basis of contradictory evidences given by the prosecution.

4. Your Lordship, the counsel will begin with the argument related to establishment of a

prima facie case. The first and foremost thing that the court hearing an anticipatory

bail application should consider is the prima facie case put up against the accused.

Thereafter, the nature of the offence should be looked into along with the severity of

the punishment. Custodial interrogation can be one of the grounds to decline

anticipatory bail.The same was upheld by the SC in the year 2022.(2022 SC live law

870). Your lordship not only this but it was also upheld in the case of Gurbaksh

Singh Sibbia and Others v. State of Punjab 1980 AIR 1632 that when the Prima

Facie Case is established against the accused then it becomes a reason enough to

show the necessity of his custody under S. 167 CrPC. Your Lordship, on 8 th of

January the victim was recovered by the IO in Malsari village, Tekari Block, Gaya

and was sent for medical examination and treatment to the Gaya Sadar Hospital. The

CDR records of the accused show his location in the Malsari- Lakshmipur cellular

tower repeatedly on 3rd, 5th and 7th January. The Doctor who attended the victim in the

hospital, i.e., DR. Shreya Roushan has submitted an affidavit in which she describes

the prima facie examination of the victim which took place on 8 th of Jan itself and

reveals that traces of sexual and physical assault were found clearly on her body,

which is enough to give an idea to this empathetic court that the nature of accusation

is grave as per s. 438(1). Your Lordship, the affidavit submitted by the doctor is
 enough to prove the establishment of a prima facie case, and not to grant the

anticipatory bail for necessity of custodial interrogation.

Your Lordship, the counsel would further like to draw the attention of the court

towards the ill intention of the accused. In the present case, considering the series of

events that has happened starting from the history of instances of harassment of the

victim by the accused and his conduct of kidnapping followed by Sexual assault

clearly implies his malafide intention. The accused being a law student is much more

aware of the intricacies of the crime than a layman that he is capable of acquiring a

pre-planned approach for commission of a crime and at the same time having

awareness to evade the law which is quite evident from the fact that he chose the very

duration of MCC when he knew that he could claim the defence of alibi. Your

Lordship the same as pleaded by the counsel should also be taken into consideration.

5. Speaking of Sexual assault reminds the counsel of the argument put forth by the

defense counsel that the charges of Sexual assault shall not be applicable in the case.

However, the offences mentioned in the FIR cannot be changed as the FIR cannot be

amended once framed. Also, this FIR is very crucial evidence as it can be used to

corroborate or contradict an informant witness u/s 157 and 145 of Evidence Act, as

held in Aghnoo Nagesai v. State of Bihar 1966 AIR 119 and S.K. Hasib v. State of

Bihar AIR 1972 SC 283 . Further, whether or not a particular offence has been

committed is the question of the merit of the case. It is clearly settled law that the

court while deciding the bail doesn’t have to go in the merits of the case as held in the

case of Kalyan Chand Sarkar v. Rajesh Ranjan @ Pappu Yadav AIR 2005 SC

972 that at the stage of granting bail the elaboration of merit is not to be undertaken,
which was again held in state of Maharashtra v. Dhanendra Sriram Bhurle AIR

2009 SC 1706. Further, your lordship, the court in case of Kadar Nazir Inamdar v.

State of Maharashtra criminal bail application no 2523 of 2021 has very clearly

stated that while deciding a bail the court must not slip into extensive deliberations of

the merits of the case. Therefore, whether or not the POCSO provisions so alleged

have actually been committed is the clear question of merit which can’t be decided

during the bail and the FIR as recorded by the police shall stand untouched which

makes POCSO still applicable to the discourse in this bail proceeding. Your Lordship,

another crass attempt is made at striking away the applicability of POCSO in the case

by arguing that the victim was ‘Nearly Major’. The counsel completely fails to

understand what does petitioner mean by the term ‘nearly major’ when talking of

POCSO. It is a settled law that A girl even if a day younger than 18 years of age is

considered minor and her consent is no consent as per POCSO, which is a generally

settled law as per Ashik Ramjan Ansari v State of Maharashtra CA no. 1184 of

2019. Your Lordship,in case of In Eera through Dr. Manjul v. State of NCT SLP

Cri No. 2640-2642 of 2016 of Delhi the Supreme court said that the purpose of

POCSO is to treat minors by a class itself and a separate class so that no offense is

committed against them as regards to sexual assault, etc. POCSO has protected the

minors by prescribing a statutory age which has a direct nexus with the legal

eligibility to give consent. Definition of chils under Sec. 2(1)(d) of POCSO is

exhaustive and requires no further explanation. Thus, this definition is given strict

interpretation. Thus, when the FIR mentions the offence of POCSO it can’t be struck

out by the court on its own while hearing the bail proceedings nor the court can take
 any evidence to test its veracity or applicability during bail proceeding plus the victim

being a minor in the present case POCSO shall inevitably be applicable.

6. Further, your lordship ,Para 6 of the bail petition mentions that there was “no close

nexus” between the petitioner and the daughter of the informant. However, on the

other hand the defense is also stating that there was a love affair between the

petitioner and the daughter of the informant . Both the statements are highly

contradictory your lordship.

On one hand, stating that there was no nexus and on stating that there was a love

affair is something anti-thetical in nature, and therefore the counsel seeks to bring the

same in light of court.

And also, your lordship the only nexus the accused and the victim shared was the one

elaborately highlighted by my co counsel that the accused held a complete history of

harassing the victim.

Further your lordship in criminal appeal no. 263 of 2022, the Hon’ble SC of India

explicity mentioned that presence of a love affair as well as the alleged refusal to

marry, are circumstances which will have no bearing on the grant of bail. Having

regards to the age of the victim i.e. she is a minor and the nature and gravity of the

crime, no case for grant of bail is established.

Henceforth, your lordship from the above cited case ,it can be inferred that the

argument put forward by the defense in our case is absurd.

7. The Petitioner in the bail petition under para 7 has contended that the accused is of

good character but as per section 54 of the Indian Evidence Act, 1872 : “In criminal

proceedings the fact that the accused person has a bad character is irrelevant, unless

evidence has been given that he has a good character, in which it becomes relevant.”

So in perusal of that, the Prosecution would like to bring to the notice of this

honorable court, the fact that mere “academic brilliance” and good results in school

are no substantial proof of good character of the accused. The accused has harassed

the victim at several instances and the same has been confirmed by the close friend of

the victim who is also a fellow batch-mate of the accused. If the court may please the

prosecution can also present the same before the court. The accused and the victim

were in the same school and he has been persuing her from there onwards. Although

the victim has rejected his proposal everytime but he never gave up on her. At several

instances the accused has harassed the victim by expressing his desire to marry her.

Also, the alleged “intimidating phone call recording” between the accused and

victim’s father which has been presented by the defense counsel is basically a phone

call done by the victim’s father to the accused on the complaint of victim wherein the

accused has threatened the victim by saying that “HUM TUMSE BAHUT PYAAR

KARTE HAI AUR TUM SIRF MERI HO, AGAR TUM MERI NAHI HUYI TO

HUM TUMKO KISI AUR KA HONE NHI DENGE”. Therefore, this substantially

throws light on the bad character of the accused which can also be backed by the

testimony of the witness.

Thus, Your Lordships, the prosecution would beg before the court to not grant the

anticipatory bail to accused as there are strong chances of him threatening the
 witnesses and he is likely to repeat the offences again if not taken into custody at the

earliest.

8. The counsel would like to plead to the court why the anticipatory bail shall not be

granted to the accused. In P. Chidambaram v E.D. (2019) the court held that

anticipatory bail must be granted only in exceptional cases. In Prasant Kumar

Sarkar v. Ashish Chaterjee supreme court has enlisted the factors on the basis of

which the anticipatory bail can be granted – 1. Prima Facie case- which in the present

case has been established pretty clearly by my co- counsel.

2. Nature and gravity of the accusation- the involvement of offences like sexual

assault and that to under POCSO is enough to give this learned court an idea as to

how grave the nature of the accusation is.

3. Likelihood of repetition- The clever malafide intent of the accused as elaborated

already and the way the extent of his wrongdoings has escalated from harassment to

kidnapping puts a clear possibility before us that the likelihood of repetition is very

high.

4. Reasonable apprehension of witness getting influenced and chances of injustice –

As the accused is classmates with one of the witnesses so it is very much possible that

he may intimidate the witness and also the accused’s family might use their political

connections to harass the informant.

5. Character and behavior of accused- The learned court has been clearly enlightened

about the character of the accused by the prosecution.

 In Smitha Pradeep v. Arun Kumar C.K. and Anr. the supreme court has said that

where the offence of sexual assault under POCSO is involved it is enough to dissuade

the court from granting pre- arrest bail. In Pratibha Manchanda v State of Haryana,

the Supreme court observed that while dealing with anticipatory bail application the

court must also consider the gravity of the offense, impact on society and a need for

fair and free investigation and he personal liberty may be very important but it is

equally incumbent upon the court to analyze seriousness of the offense and there is a

need for custodial investigation.

In recent case Vipin Kumar Dhir v State of Punjab the court, among other factors,

observed the “societal impact of the court’s undue influence upon the investigation by

granting of pre- arrest bail in cases where investigation is at threshold” as a ground of

not granting bail “to prevent miscarriage of justice and bolster the administration of

criminal justice system.”

Thus, considering these grounds the counsel urges your lordship to not to grant bail to

the accused.

9. Furthermore, Your Lordships, the defense counsel in their arguments has contended

that the SC is following new trends now and is giving impetus on the wider

interpretation of the individual liberty u/a 21 as opposed to societal interest. However

Your Lordships, according to the jurisprudence of the bail, balance between societal

interest and individual interest should be maintained and whichever weigh more shall

prevail. Also, in the recent case of Satyendra Kumar Antil V. Cental bureau of

Investigation, 2022 SC (DB), it has been held that “In matters of Non –bailable
offences the balancing of the interests b/w the individual interest of the accused, in

his life and personal liberty and the societal interest in the investigation, finding the

culprit and punishing him has to be done. A crime is considered to be a crime against

the society and therefore it is in the societal interest that the investigation and further

proceedings shall be done and for that purpose if required the arrest and the custody

of the accused shall be done. At the same time every individual’s right and personal

liberty, dignity, right of reputation, physical and mental wellbeing is guaranteed u/a

21 of the COI. However, the fundamental right u/a 21 is not absolute and in proper

cases it can be restricted in the societal interest.”

Similarly, in the case of Rajesh Ranjan @ Pappu Yadav V. CBI, 2007 (1) SCC 70

the SC observed that “the premium on the interest of the society should be placed

despite the extended detention and delay in the proceedings. SC also imposed

reasonable restriction on the right to liberty by observing that it would be wholly

inappropriate to grant bail when investigation is partially over and allegation

against accused is serious.”

Thereby considering the gravity of the offence and the malafide intent of the accused

which has been dealt by my co-counsel and also the urgency of the situation,

therefore granting the anticipatory bail may defeat the ends of justice. Hence, My

lordships in light of the arguments advanced the counsel request you to refuse the

grant of anticipatory bail in the interest of justice.

1.
FIAT JUSTITIA RUAT CAELUM