IN THE COURT OF SH.XXXXXXX, LD.ASJ/ POCSO, XXXXXX COURTS, NEW DELHI.

IN THE MATTER OF :-

XXXXXXXXX                                  :APPLICANT/ACCUSED

VERSUS

STATE OF NCT OF DELHI                      : RESPONDENT

FIR NO. __________

U/S : 6 of POCSO Act

R/w Section 118/506 IPC

P.S.: _____________

REPLY TO THE APPLICATION UNDER SECTION 439(2) CR.P.C. FILED BY APPLICANT MRS. XXXXXXXXX/ PROSECUTRIX FOR CANCELLATION OF BAIL OF ACCUSED NAMEL XXXXXXX.

MOST RESPECTFULLY SHOWETH:-

PRELIMINARY OBJECTIONS:-

1.          That the applicant / prosecutrix has no locus-standi to file the present application for cancellation of the 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 will be interfering with the trial or the evidence and if it finds that the accused is conducting himself prejudicial to the interest of the prosecution, it is open for the prosecution to file an application or bring to the notice of the Court for cancellation of the bail. But, it would not authorize the private person to step in the shoe of Public Prosecutor and file the application under Section 439(2) Cr.P.C.

2.          That the present application is absolutely baseless and without any merit and does not disclosed any ground whatsoever for cancelling the bail granted by this Hon’ble Court vide order dated 31.05.2017.

3.          That the present application moved by the applicant / prosecutrix as well as her mother namely Smt. M 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 31.05.20xx.

4.          That the prosecutrix and her mother have roped in the accused and his father into the present case which is totally false and in order to take revenge as they declined the proposed marriage between the prosecutrix and accused XXXXXX.

5.          That the marriage between the prosecutrix and the accused was declined by Mr. V due to the reason of repeated unjustified demands and greed of mother of prosecutrix and the same has resulted into the false FIR and the false case.

6.          That it is submitted after release of accused on bail the accused is following all the terms and conditions and has not misused the liberty of the bail granted to him by this Hon’ble Court.

7.          It is submitted that the present application is moved on the basis that the accused XXXXX and his father are continuously extending threats to the prosecutrix alongwith her family members through the different known person from withdrawing the prosecution case and also not to appear before this Hon’ble Court and to compromise the matter or she and her entire family will have to face the dire consequences.

8.          It is submitted that the all the aforesaid allegations levied by the prosecutrix and her mother in the application under reply are totally false, bald and vague and there is not even 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 provided in Section 439(2) which contemplates that the Court of Session or the High Court can cancel the bail granted to an accused. The said section 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 the Bail is a vital and crucial right of an accused enshrined under the right to freedom, once the person is released on bail, it is in exceptional circumstances that the courts cancel his bail. The pre-conditions as defined by various courts for cancellation of bail can be summarized as under:

a.           The interference or attempt to interfere with the due course of administration of justice by the accused.

b.          The evasion or attempt to evade the course of justice by the accused.

c.           The accused has abused to the liberty granted to him by the court.

d.          The accused misuses the liberty by indulging in similar criminal activity.

e.           The accused interferes with the course of the investigation.

f.            The accused attempts to tamper with the evidence or the witnesses.

g.           The accused threatens witnesses or indulges in similar activities.

11.       In the case title 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 precondition mentioned in para 9 above exist 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 with 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 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 Bhagirath Sinha S/o Mahipat Singh ... vs State Of Gujarat; AIR 1984 SC 372; it is held as under:-

“Very cogent and overwhelming circumstances all 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 ill his favour by tampering with evidence.”

REPLY ON MERIT:-

1-2.  Not denied as it is a matter of record.

3.     That the contents of para 3 of the application are wrong and denied. It is denied that giving of any notice to the prosecutrix / IO was required before hearing the application for bail. It is submitted that the charge sheet had been filed on 17.05.20xx. The application for bail was filed by the accused on 24.05.20xx and in terms of Section 31 of POCSO Act the copy of the bail application was duly supplied to the Ld. SPP present in the court. The hearing of the bail application by this Hon’ble Court took place on 31.05.20xx after hearing the counsel for accused as well as Ld. SPP. Hence, all the relevant facts of the case were before this Hon’ble Court at the time of hearing the bail application. It is absolutely wrong to allege that for hearing of the bail application there was any need to issue notice to the prosecutrix or hear her counsel. It is also wrong to state that the same is against the principals of natural justice. It is submitted that in terms of Section 31 POCSO Act r/w proviso to Section 439(1) of CrPC. The only requirement is to give notice of the application for bail to the Public Prosecutor. In the present case not only notice of the application for bail to given Ld. SPP but even the hearing of the bail application was done by this Hon’ble Court after hearing both the counsel for accused and the Ld. SPP.

4-5.  That the contents of paras 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 has established forcible physical relation with the prosecutrix at the very tender age of 13 years. It is submitted that the copy of the document which is alleged to be affidavit / MOU is a false and forged document and even the said document does not show any forcible physical relation with the prosecutrix. It is further submitted that the prosecutrix or her mother never came out with this document during investigation. Not only this, even in none of the statements of the prosecutrix or her mother recorded during investigation there is a slightest indication of any such document. Hence, no reliance whatsoever can be placed on such document.

6.     That the contents of para 6 of the application are absolute wrong and denied. It is denied that there is sufficient material on record that the accused has committed the act of rape upon a minor. It is submitted that the prosecutrix has been used as a tool by her parents for taking revenge upon the accused and his father as they refused to go ahead with the marriage on account of repeated unjustified demands and greed of mother of prosecutrix and the same has resulted into the false FIR and the false case.

7.     That the contents of para 7 of the application is a matter of record. It is however, submitted that tearing of the hymen is not by a single cause. There are various factors which cause tearing of the hymen. The hymen can stretch or tear as a result of various behaviors. The tearing of hymen does not mean that there was any penetration or sexual intercourse between the prosecutrix and the accused.

8.     That the contents of para 8 of the application are absolute 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 para under reply to show that any threat was extended to the prosecutrix or her family members. The fact that the allegations are para under reply are totally wrong is borne out from the statement of the prosecutrix as already recorded on 09.08.20XX.

9.      That the contents of para 9 of the application are absolute wrong and denied. There is nothing in para under reply to show how the accused has violated the order dated 31.05.20xx or misused the liberty of bail granted to him. The allegations are totally vague, false and bald and have been leveled as a pressure tactic.

10.   That the facts mentioned in the preceding paras do not make out any case against the accused to cancel his bail.

        The prayer clause is without any basis and hence be dismissed.

PRAYER:-

In view of the aforesaid facts and submissions as mentioned above, it is therefore, respectfully prayed before this Hon’ble Court that the present application may kindly be dismissed in the interest of justice.

DELHI                                                              APPLICANT

THROUGH

DATED:      

                                                                               XXXXXXX

COUNSEL FOR THE APPLICANT