Calcutta High Court Denies Bail To Gang-Rape Accused, Cites Attempts To Threaten Victim, Influence Police Investigation

The Calcutta High Court has refused to grant bail to the petitioners, accused of gang-rape by the victim who alleged that she was attacked at the birthday party of one of the accused.

Victim had alleged that she was forced to consume alcohol at the party, after which she found herself unconscious and with the petitioners forcing themselves upon her.

Earlier, a division-bench of Justice Joymalya Bagchi and Justice Gaurang Kanth had taken serious exception to the police’s actions in harassing the victim, and the petitioner’s attempts to influence her during the ongoing investigation.

At the present hearing, the Bench denied the petitioners’ application for bail upon noting that the gravity of the offence of gang-rape, along with the petitioners’ earlier attempts to influence the investigation. It held:

Court places on record the incident of threat upon the victim held out by one of the relations of a co-accused during trial. The Court was also constrained to take note of lack of co-operation on the part of police administration to strongly act against the perpetrator and the manner in which the victim was treated in the course of the investigation.

These unfortunate circumstances give an impression of deep and pervasive influence of the petitioners and co-accused over police administration. Accordingly, we are of the view release of the petitioners on bail would encourage these activities and severely impair the smooth course of administration of justice by derailing the trial.

Petitioner’s counsel argued that the allegation of rape by the victim was an afterthought, and that neither the medical evidence nor the evidence of other witnesses supported her case.

State Counsel argued that the victim’s DNA report showed a match between the blood sample of the second petitioner, and a swap taken from her. It was submitted that her deposition was supported by the DNA report and other incriminating circumstances.

Victim’s counsel submitted that her evidence, read in light with Section 114A of the Evidence Act would prove the lack of consent.

It was argued that the DNA report corroborates the allegation of sexual intercourse and that minor contradictions cannot be grounds to refute the prosecution case.

Upon recording submissions of all parties, the Court considered the different factors for grant of bail. It evaluated the gravity of the offence of gang rape, along with the possible threat faced by the victim at the behest of the petitioner during the ongoing trial.

In refuting the petitioners case that the allegations were an afterthought or their attempts to discredit the testimony of the victim, the Court held:

In a charge of gang rape, prosecution need not prove each of the accused committed rape. Presence and sharing of common intention is sufficient. All the petitioners were present at the spot and their conduct before and after the incident shows they shared common intention to rape the victim. Whether the victim consented to the intercourse or not is a moot question where the scale appears to be heavily weighed against the petitioners in view of the victim’s stout denial of consent and the statutory presumption under Section 114A of the Evidence Act.

In denying bail to the petitioners, the Court acknowledged their right to a speedy trial, and accordingly directed the Trial court to conclude the trial within six months from date with the cooperation of all parties, without granting unnecessary adjournments.

We are conscious that protracted under trial detention is an anathema to the fundamental right of an accused to speedy trial. In order to balance the competing interests of the State to ensure just administration of criminal justice including rights of the victim on the one hand and the necessity to moderate the period of under trial detention in light of his right to be presumed innocent till proven guilty on the other hand, it concluded.

Advocates Jhuma Sen & Dinesh Vishwakarma represented the victim.

Citation: 2023 LiveLaw (Cal) 309

Case: In Re: Madhav Agarwal & Ors.

Case No: C.R.M. (DB) No. 2670 of 2023

Click Here To Read/Download Order