Interim Bail to Government Counsel accused of Sexual Harassment-All HC

Today the Lucknow High Court has granted interim Bail to the Government Counsel, Shri S.S. Chauhan, who has been accused of Sexual Harassment by a Young lawyer.

A Bench of Justice C.D. Singh after hearing the parties observed:

“The case in hand, admittedly, the applicant has been arraigned as an accused alleging commission of non-bailable offence. It is clearly well settled that, keeping an accused person in custody pending trial or investigation of a case is not a measure of punishment, but it is only to see that his presence during the trial is secured easily and to prevent likelihood of tampering of evidence or threatening or inducement of witnesses in any manner, the detention of such accused person in custody would not be warranted.

The applicant is a reputed Advocate and has been practicing in this Court for the last 29 years without having any criminal antecedent(s). The applicant was Additional Chief Standing Counsel for the State Government and for number of Departments and Corporations. The entire evidence against the applicant is based on documents. Having regard to the status which the applicant has, there is no likelihood of his fleeing away from justice.

In the light of above discussion, I am on the considered opinion that the applicant may be released on interim bail. Accordingly, it is directed that in the event of his arrest, the applicant namely Shailendra Singh Chauhan be released on interim bail in connection with FIR No.0326 of 2020, under Sections 328, 354A, 376 IPC, P.S. Vibhuti Khand, District Lucknow on his executing a person bond to the tune of Rs.50,000/- (Rupees Fifty Thousand) with two sureties in the like amount to the satisfaction of the Arresting Officer.”

The counsel for Applicant contended that the applicant is a reputed Advocate and has been practicing in this Court for the last 29 years without having any criminal antecedent(s). It was further submitted that the applicant is innocent and has not committed any offence as alleged in the FIR. He has been falsely implicated. The applicant is also a member of Oudh Bar Association , he added.

It was further submitted that the prosecution story is false and concocted with a view to humiliate the applicant, coupled with the fact that no semen or sperm was found and during medical examination too, no piece of semen was found either on her jeans or on her person. The Senior Counsel appearing on behalf of the Applicant also submitted that the instant case has been filed only to blackmail the applicant and to extract money and grab the chamber of the applicant situated at Vibhuti Khand, Gomti Nagar, Lucknow. The instant case is nothing but a gross misuse of process of law.

In response to the submission of the Applicant, the Counsel for the State submitted that in pursuance of earlier order dated 28.08.2020 passed by a co-ordinate Bench of this Court, the State has filed a detailed counter affidavit on 02.09.2020 alongwith medical report and the statements of the prosecutrix recorded under Sections 161 Cr.P.C. and 164 Cr.P.C. It was fairly contended that laboratory report has not been filed alongwith counter affidavit as the same was not available at that time. However, a correspondence has already been taken place with the laboratory and the same may be made available within two weeks, the state counsel added.

The Counsel appearing on behalf of the complainant vehemently opposed the Bail Application and submitted that the applicant is influential person and he may influence the investigation. He has also submitted that the applicant has filed a writ petition under Article 32 of Constitution of India before the Hon’ble Supreme Court with a prayer that the investigation may be transferred to CBI from local police of P.S. Vibhuti Khand, Gomti Nagar, Lucknow. He has submitted that the applicant has also made a prayer for transfer of investigation in other State. On the strength of these submission the complainant counsel prayed that the present applicant is not entitled for the relief as prayed for in the instant anticipatory bail application and sought two weeks time to file objection/Counter Affidavit.

The Court elaborated the concept of Anticipatory Bail in its order, by observing that:

“The concept of anticipatory bail was introduced in Cr.P.C. by 1973 amendment. The said provision can be invoked by a person who has a “reasonable apprehension” that he may be arrested for committing a non-bailable offence. The main purpose for incorporating Section 438 in Cr.P.C. was that the liberty of an individual should not be unnecessarily jeopardised. Right to life and personal liberty are one of the important fundamental rights guaranteed by the constitution and therefore, no person should be confined or detained in any manner unless he has been held guilty.

The object of the bail is to secure the attendance of the accused at the trial. The accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself in, the trial than if he is in custody. In other words, as the Apex court holds, a presumed innocent person must have his freedom in the form of bail to enable him to establish his innocence at the trial.

Section 438 Cr.P.C. contemplates an application to be made by person apprehending arrest of an accusation of having committed a non-bailable offence. It is indicative of the fact that the application for anticipatory bail is pivoted on an apprehension of arrest which invites exercise of power under Section 438 of Cr.P.C. The expression “reason to believe” or reasonable apprehension of arrest, a term substitute for each other is the governing factor to let off a person on anticipatory bail.

According to the rule of construction, the expression “reason to believe” should be construed with the aim, object and scheme of Section 438 Cr.P.C. The inflammatory allegations having their pedestal on falsity, malafide, and motive afford considerable grounds to be enlarged on anticipatory bail as the object of it is to protect an individual from humiliation and harassment. Thus, the expression “reason to believe” must be the belief of reasonable mind where the petitioner or the individual is immune. The “reason to belief’ never contemplates nor it accords any licence to any individual to commit the offence and to seek protection within the realm of Section 438 Cr.P.C.

The expression “reasonable belief’ fosters a belief of genuine belief apprehension of arrest of an allegation which prima facie is insubstantial and made with a sinister motive, the object being to malign a person where his arrest by prosecuting agency is immediate than remote. But when a non-bailable offence has been committed by an accused, such “reason to believe” or apprehension of arrest can never be equated with the genuine belief of apprehension of arrest proceeding from prima facie substantial material entitling him to pre-arrest bail. The section can never be used by any individual to cultivate his rights when he is prima facie liable for an accusation and does not commensurate with his innonce. Reasonable belief is not colourable belief.

Section 438(1) Cr.P.C. provides that when any person has reason to believe that he may be arrested, he may approach the High Court or Sessions Court. It does not refer to a particular time or stage to have such an apprehension of arrest. However, the words and the language under Section 438(1) and (3) are so clear, so as to lead to the conclusion that whenever any person apprehends that he may be arrested for a non-bailable offence, he may seek for anticipatory bail.

The case in hand, admittedly, the applicant has been arraigned as an accused alleging commission of non-bailable offence. It is clearly well settled that, keeping an accused person in custody pending trial or investigation of a case is not a measure of punishment, but it is only to see that his presence during the trial is secured easily and to prevent likelihood of tampering of evidence or threatening or inducement of witnesses in any manner, the detention of such accused person in custody would not be warranted.”

On last date the court had directed to submit the Viscera Report and fixed the case for today. (Read HERE)

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