This Court in Vipin Kumar Dhir v. State of
Punjab 2021 SCC Online SC 854 has added caveat
to the above principles and has further held that bail
can also be revoked where the Court has considered
irrelevant factors or has ignored relevant material
available on record which renders the order granting
bail legally untenable. The gravity of the offence,
conduct of the accused and societal impact of an
undue indulgence by Court when the investigation is
at the threshold, are also amongst a few situations,
where a Superior Court can interfere in an order of
bail to prevent the miscarriage of justice and to
bolster the administration of criminal justice system. {Para 15}
2023INSC761
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. OF 2023
BHAGWAN SINGH Vs DILIP KUMAR @ DEEPU @ DEPAK
AND ANOTHER
Author: ARAVIND KUMAR, J.
Dated: August 23, 2023.
1. Leave granted.
2. The present appeals by way of special leave
arises from the order dated 06.04.2023 passed by the
learned Single Judge of the High Court of Judicature at
Rajasthan, Jaipur Bench in S.B. Criminal Miscellaneous
2nd Bail Application No.219 of 2023 whereby the
applications filed by the first Respondent in the
respective appeals under Section 439 of the Code of
Criminal Procedure, 1873 (for short ‘the Cr.P.C.’) has
been allowed and have been granted bail on
furnishing a personal bond for a sum of Rs.1,00,000/-
(Rupees one lakh only) with two sureties of
Rs.50,000/- each for their presence in connection with
the FIR No.94 of 2022 registered on the complaint of
the appellant by Police Station Mandawar, District
Dausa, Rajasthan for the offences punishable under
Section 376D, 384, 506 of the Indian Penal Code (for
short ‘the IPC’), Section 326 of POCSO Act and Section
3(2)(v) of The Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 (for short SC/ST
Act) and Section 66 of the Information Technology Act,
2000.
Brief Background:
3. The appellant (original complainant) is the uncle
of minor girl got registered an FIR No.94 of 2022 on
25.03.2022 with the jurisdictional police alleging gang
rape, threat of making video of rape recorded viral
and extortion which came to be registered for the
offences punishable under Section 376D, 384 and 506
of the IPC read with Section 326 of POCSO Act and
Section 66D of IT Act. The said FIR was registered
against Vivek, Deepak and Netram.
4
4. It is the case of the prosecution that minor girl
“XXX” aged 15 years and six months was studying in
Class-X had got acquainted with a boy named Vivek
and he seduced the minor girl and took her to Samleti
Palace Hotel, Mandawar Road, Mahwa on February 24,
2021 and he along with his friends Deepak and
Netram gang raped her after drugging and took
videos of the incident. It was alleged that all of them
had threatened her not to disclose the said incident as
otherwise they would eliminate her father and brother
make the video viral. It was further alleged in the
complaint that accused persons proclaimed and they
would not be harmed as they were powerful and as
such the minor girl got scared and under the threat of
video being circulated, she gave gold ornaments of
her mother to said Vivek as instructed by him. It was
also alleged that again Vivek had raped her under the
threat of video being made viral and was extracting
money from her. It was alleged that she was raped 4-
5 times in the same hotel and she became weak and
sick. Though enquires were made by her father and
mother she had not revealed anything out of fear. It
was also alleged that on 2nd May, 2021 the marriage
of his elder brother’s daughter took place and entire
family was busy and at that point of time they forced
the minor girl to permit Vivek and his companions to
enter the house by putting pressure on her and the
jewellery kept for the marriage was taken away by
Vivek and his accomplice. It was alleged in this regard
an FIR No.142 of 2021 was registered by the mother
of minor girl with the Police Station, Raini. It was
alleged that during the course of investigation the
accused Vivek was interrogated and he confessed to
have taken away the jewellery and thereafter they
had continued to threaten the minor girl not to
disclose about the rape as otherwise they would
destroy her entire family. It is stated that on 24th
March, 2023, the minor girl had disclosed about the
incident of 24.02.2021 after much persuation and as
such complainant sought for strict action being taken
against the accused persons.
5. After investigation the charge-sheet came to be
filed against Netram and Vivek only. However, the
jurisdictional court took cognizance against Deepak @
Dileep Kumar @ Dipu by order dated 09.06.2022 for
the offence punishable under Section 376(2)(n),
376DA of the IPC and Section 516 of POCSO Act and
thereafter the case has been registered and accused
has been summoned. It is also pertinent to note at
this juncture that order taking cognizance by the
jurisdictional court against Deepak was challenged
before the High Court which came to be dismissed
and same was challenged before this Court and later
withdraw the petition.
6. The applications for grant of bail filed by the
respondents in the respective appeals came to be
dismissed by the special court vide order dated
27.06.2022 and 11.01.2023 by the High Court. In the
background of the bail application having been
rejected the first respondent in the respective appeals
have preferred Criminal Miscellaneous Bail
Applications under Section 439 of the Cr.P.C. before
the High Court of Judicature of Rajasthan. By
impugned order dated 06.04.2023 the High Court
granted the relief in their favour and enlarged them
on bail after taking into consideration the statement
of the prosecutrix (victim) recorded during the course
of trial and by taking into consideration the possibility
of time being consumed for trial. The complainant
being aggrieved by the grant of bail has preferred
these appeals by special leave.
Contentions of the Appellant (for the
Complainant)
7. It is contended that offences alleged against the
accused are heinous offences punishable with
minimum sentence for life and attracts minimum
sentence of 20 years. He would contend that victim
in her statement recorded under Section 161 of the
Cr.P.C. as well Section 164 of the Cr.P.C. has
categorically stated that all the accused persons have
committed gang rape and same has been reiterated
in her deposition which has remained unshattered and
therefore, prima facie, case for conviction has been
made out. It is contended that one of the accused
(Deepak) is son of a sitting MLA and the chances of
tampering with the evidence during the trial if
enlarged on bail is writ large; it is evident from the
investigation that entries in the hotel register of the
date of incident are missing; the CCTV footage of the
hotel on the date of incident has been deleted; school
records of the victim has been manipulated;
telephone number of Deepak obtained by the police is
a wrong number; name of Deepak had surprisingly
disappeared from the charge-sheet though victim girl
had specifically stated in all her statements before the
investigating officer the role of Deepak and though his
name appeared in FIR.
8. He would also contend that there has been
threat posed to the father of the minor girl, who is an
ordinary police constable to withdraw the complaint
and other witnesses are also being threatened and
none of these aspects has been considered by the
High Court and as such it has resulted in an erroneous
order being passed for granting bail. Hence, he seeks
for cancellation of the bail which has been granted by
the High Court.
Contentions of the Respondent Counsel:
9. Ms. Meenakshi Arora, learned Senior Counsel
appearing for the respondent would support the
impugned order passed by the High Court and would
contend that fact of the complaint having been lodged
after a lapse of one year after the date of alleged
incident was a glaring defect in the prosecution
theory; she would also contend that during the course
of investigation it was found from school records
where victim was studying was present at the school
on the date of incident and prima facie complaint
looks frivolous; in the data record of telephone related
to the accused Dileep @ Deepak obtained during
investigation revealed he was found to be 40 to 80 KM
away from the place of incident on the date of
incident and prima facie it reveals he has been falsely
implicated; the first respondent (Deepak) had no
connection with or relationship with the prosecutrix
and no call was ever made by him to the prosecutrix
or vice versa. It is also contended that accused Vivek
was known to the prosecutrix as is evident from
various calls made by Vivek to her and during the
course of the trial in her deposition she admitted that
she was getting calls from Vivek and Netram but there
was no connection whatsoever between the
prosecutrix and respondent No.1 - Deepak. She
would also contend that between the date of incident
i.e. 24.02.2021 and the date of registration of FIR
No.94 of 2022 on 25.03.2022 there was yet another
FIR No.142 of 2021 registered by the mother of the
victim regarding theft of jewellery against Vivek and
there was no whisper of rape against respondent
(Deepak) or others and the investigating officer is said
to have recovered the jewellery from the accused
Vivek. This chain of events would indicate that first
respondent – Deepak had no remote connection to the
alleged incident of rape and he has been roped in to
settle political scores. It is in these circumstances the
investigating officer had found no material which can
be imputed to point the guilt of the first respondent
(Deepak) and as such he had filed a closure report
while filing the charge-sheet against other two
accused. She would also contend that first
respondent (Deepak) is innocent of the alleged
offence and, hence, she has prayed for rejection of
the appeals.
10. Learned counsel appearing for Netram Special
Leave Petition (Crl.) No.6200 of 2023 has contended
that there has been delay of 13 months in lodging the
FIR; he would also contend that during the course of
trial prosecution has made certain admissions which
would depict there being a hole in prosecution theory,
hence, he has sought for dismissal of the appeal.
11. Learned counsel appearing for the State, by
reiterating the contentions urged in the counter
affidavits filed in the respective appeals, has prayed
for the bail granted in favour of Netram being set
aside or in other words, the appeal being allowed and
has sailed along with the complainant. Whereas in
the counter affidavit that has been filed opposing the
bail in Special Leave Petition (Crl.) No.6199 of 2023
against the order granting bail in favour of respondent
– Deepak, the State has virtually supported the
defence of the accused Deepak and the material
collected during the course of investigation, to stave
off the claim of the complainant. Hence, he has
prayed for dismissal of the appeals.
DISCUSSION AND FINDINGS:
12. The grant of bail is a discretionary relief which
necessarily means that such discretion would have to
be exercised in a judicious manner and not as a
matter of course. The grant of bail is dependant upon
contextual facts of the matter being dealt with by the
Court and may vary from case to case. There cannot
be any exhaustive parameters set out for considering
the application for grant of bail. However, it can be
noted that;
(a) While granting bail the court has to keep in
mind factors such as the nature of accusations,
severity of the punishment, if the accusations
entails a conviction and the nature of evidence in
support of the accusations;
(b) reasonable apprehensions of the witnesses
being tempered with or the apprehension of there
being a threat for the complainant should also
weight with the Court in the matter of grant of
bail.
(c) While it is not accepted to have the entire
evidence establishing the guilt of the accused
beyond reasonable doubt but there ought to be
always a prima facie satisfaction of the Court in
support of the charge.
(d) Frivility of prosecution should always be
considered and it is only the element of
genuineness that shall have to be considered in
the matter of grant of bail and in the event of
there being some doubt as to the genuineness of
the prosecution, in the normal course of events,
the accused is entitled to have an order of bail.
We may also profitably refer to a decision of this
Court in Kalyan Chandra Sarkar v. Rajesh Ranjan
@ Pappu Yadav and another (2004) 7 SCC 528
where the parameters to be taken into consideration
for grant of bail by the Courts has been explained in
the following words:
“11. The law in regard to grant or refusal of
bail is very well settled. The court granting
bail should exercise its discretion in a judicious
manner and not as a matter of
course. Though at the stage of granting bail
a detailed examination of evidence and
elaborate documentation of the merit of the
case need not be undertaken, there is a
need to indicate in such orders reasons for
prima facie concluding why bail was being
granted particularly where the accused is
charged of having committed a serious offence.
Any order devoid of such reasons
would suffer from non-application of mind.
It is also necessary for the court granting
bail to consider among other circumstances,
the following factors also before
granting bail; they are:
(a) The nature of accusation and the severity
of punishment in case of conviction and
the nature of supporting evidence.
(b) Reasonable apprehension of tampering
with the witness or apprehension of threat
to the complainant.
(c) Prima facie satisfaction of the court in
support of the charge. (See Ram Govind
Upadhyay v. Sudarshan Singh [(2002) 3
SCC 598 : 2002 SCC (Cri) 688] and Puran
v. Rambilas [(2001) 6 SCC 338 : 2001
SCC (Cri) 1124] .)”
13. It is also required to be borne in mind that when
a prayer is made for the cancellation of grant of bail
cogent and overwhelming circumstances must be
present and bail once granted cannot be cancelled in
a mechanical manner without considering whether
any supervening circumstances have rendered it in
conducing to allow fair trial. This proposition draws
support from the Judgment of this Court in Daulat
Ram and others v. State of Haryana reported in
(1995) 1 SCC 349, Kashmira Singh v. Duman
Singh (1996) 4 SCC 693 and xxx v. State of
Telangana (2018) 16 SCC 511.
14. This Court in Daulat Ram’s case has held that the
cancellation of the bail has to be dealt on a different
footing in comparison to a proceeding for grant of
bail. It has also been held that there can be
supervening circumstances which may develop post
the grant of bail and are non-conducive to the fair
trial, making it necessary to cancel the bail and this
principle has been reiterated time and again and more
recently in the Judgment of Ms. X v. State of Telangana
(supra).
15. This Court in Vipin Kumar Dhir v. State of
Punjab 2021 SCC Online SC 854 has added caveat
to the above principles and has further held that bail
can also be revoked where the Court has considered
irrelevant factors or has ignored relevant material
available on record which renders the order granting
bail legally untenable. The gravity of the offence,
conduct of the accused and societal impact of an
undue indulgence by Court when the investigation is
at the threshold, are also amongst a few situations,
where a Superior Court can interfere in an order of
bail to prevent the miscarriage of justice and to
bolster the administration of criminal justice system.
16. No doubt each case would have unique facts
peculiar to its own and the same would hold key for
adjudication of bail matters including cancellation
thereof. There may be circumstances where
interference to or attempt to interfere with the course
of administration of justice or evasion or attempt to
evade to due course of justice are abuse of
concession granted to the accused in any manner.
17. The offence alleged in the instant case is
heinous and would be a onslaught on the dignity of
the womanhood and the age old principle of यत ननायर्यस्तत
पपूज्यन्तत रमन्तत तत दतवतनाताः (where women are respected Gods
live there) would recede to the background and the
guilty not being punished by process of law or
accused persons are allowed to move around freely in
the society or in spite of there being prima facie
material being present they are allowed to move
around freely in the society before guilt is proved and
are likely to indulge in either threatening the
prosecution witnesses or inducing them in any
manner to jettison the criminal justice system, then
the superior court will have to necessarily step in to
undo the damage occasioned due to erroneous orders
being passed by courts below.
18. This Court in Ram Govind Upadhyay v.
Sudarshan Singh, (2002) 3 SCC 598 has held as
under:
“9. Undoubtedly, considerations applicable to
the grant of bail and considerations for cancellation
of such an order of bail are independent
and do not overlap each other, but in the event
of non-consideration of considerations relevant
for the purpose of grant of bail and in the event
an earlier order of rejection available on the
records, it is a duty incumbent on the High
Court to explicitly state the reasons as to why
the sudden departure in the order of grant as
against the rejection just about a month ago.
The subsequent FIR is on record and incorporated
therein are the charges under Sections
323 and 504 IPC in which the charge-sheet
have already been issued — the court ought to
take note of the facts on record rather than ignoring
them. In any event, the discretion to be
used shall always have to be strictly in accordance
with law and not dehors the same. The
High Court thought it fit not to record any reason,
far less any cogent reason, as to why there
should be a departure when in fact such a petition
was dismissed earlier not very long ago.
The consideration of the period of one year
spent in jail cannot in our view be a relevant
consideration in the matter of grant of bail,
more so by reason of the fact that the offence
charged is that of murder under Section 302 IPC
having the punishment of death or life imprisonment
— it is a heinous crime against the society
and as such the court ought to be rather circumspect
and cautious in its approach in a matter
which stands out to be a social crime of a
very serious nature.”
19. Similar is the opinion of this Court in Prashanta
Kumar Sarkar v. Ashish Chatterjee and another
(2010) 14 SCC 496 has held as under:
“9. We are of the opinion that the impugned
order is clearly unsustainable. It is trite that this
Court does not, normally, interfere with an
order passed by the High Court granting or
rejecting bail to the accused. However, it is
equally incumbent upon the High Court to
exercise its discretion judiciously, cautiously
and strictly in compliance with the basic
principles laid down in a plethora of decisions of
this Court on the point. It is well settled that,
among other circumstances, the factors to be
borne in mind while considering an application
for bail are:
(i) whether there is any prima facie or
reasonable ground to believe that the accused
had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of
conviction;
(iv) danger of the accused absconding or
fleeing, if released on bail;
(v) character, behaviour, means, position and
standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses
being influenced; and
(viii) danger, of course, of justice being
thwarted by grant of bail.”
20. Keeping the aforesaid analysis of law when we
turn our attention to the facts on hand it would not
detain us too long to arrive at a conclusion that High
Court seems to have been primarily swayed by the
fact that there has been delay in filing the complaint
i.e. 13 months for granting bail in favour of accused
persons viz, respondents in respective appeals. The
allegation made in the complaint relates to gang rape
of a minor girl who is aged 15 years six months,
studying in Class X. The fact of her father being a
police constable who is far below in the hierarchy of
service cannot be lost sight of. One of the
respondents against whom allegations have been
made is the son of a sitting Member of Legislative
Assembly – MLA. Yet another accused – Vivek seems
to have criminal antecedents and the third accused is
the Manager of the Hotel where the alleged incident
of gang rape had occurred. On investigation, the
charge-sheet came to be filed against two accused
only, namely, Vivek and Netram, though in the
complaint a specific allegation of rape has been made
against Deepak he was dropped. It is in this
background, at the instance of the complainant, the
jurisdictional court took cognizance of the offence
against Deepak vide order dated 09.06.2022 and this
order was challenged before the High Court in
Criminal Revision No.979 of 2022 which came to be
dismissed vide order dated 13.07.2022 and the
special leave petition filed challenging the same in
Special Leave Petition (Criminal) No.9458 of 2022
came to be withdrawn on 03.02.2022. Thus, order of
taking cognizance by the jurisdictional Sessions Court
against Deepak has attained finality.
21. In this background, the contention or plea of
delay being fatal to the prosecution when examined, it
would, prima facie, indicate that in the complaint/FIR
which has been registered on 25.03.2022 relevant to
the incident dated 24.02.2021 the reason has been
assigned namely constant threat posed by the
accused persons as stated in the complaint itself. It is
in this background it will have to be seen as to
whether in the societal circumstances the minor girl
was placed, her tender age, then prevailing
circumstances and the purported video depicting her
nudity and the constant threat being posed to victim
of video of rape which had been recorded being made
viral in the event of prosecutrix informing anyone of
the incident are factors which cannot be brushed
aside which resulted in delay in filing the complaint.
In other words, delay by itself would not be fatal for all
times to come and the criminality attached to the
incident would not evaporate into thin air or get
extinguished by virtue of such delay. It all depends
upon facts that may unfold in given circumstances
and same would vary from case to case. On the other
hand, if the prosecution attempts to improvise its case
stage by stage and step by step during the
interregnum period, in such circumstances accused
would be justified in contending that delay was fatal
to stave off the proceedings initiated against such
accused. Thus, it depends on facts that would unfold
in a given case. In the aforesaid background the fact
of delay in the instant case prima facie cannot be held
against the prosecution or in other words on the
ground of delay in lodging FIR the genuineness of the
complaint cannot be viewed with coloured glasses nor
it can be held that by itself would be sufficient ground
to enlarge the accused on bail.
22. The accused in the instant case, namely, Deepak
was apprehended by the jurisdictional Sessions Court
by executing the arrest warrant on 09.01.2023. He did
not initially surrender after being charge-sheeted or
participate in the investigation even after arrest
warrant being issued by the trial court.
23. The fact that accused Deepak is the son of
sitting MLA would disclose the domineering influence
he would wield not only in delaying the proceedings
but also in pressurizing the witnesses to either resile
from their statement given during the course of
investigation or pose threat to them from deposing
against accused on their failure to act according to his
dictates or induce them to testify as per his dictates
or to help the defence of the accused.
24. The prosecutrix has made allegations against
the concerned accused-respondents and it becomes
amply clear from the plain reading of the complaint as
well as the testimony of the prosecutrix that accused
persons had indeed participated in the gang rape.
She also states that she was threatened that if she
were to inform any family member of the alleged rape
incident, they would make the video of rape to go
viral. During the course of investigation of the FIR
registered for gang rape, it was found that entries
maintained at Hotel Samleti Palace, relevant to the
date of incident was specifically missing; the CCTV
cameras at the Hotel though found, the CCTV footage
of the date of incident was not available; Vivek had
called the prosecutrix several times and had
exchanged number of messages; Vivek and Netram
were in regular touch on phone and after the
incident, accused Deepak was dropped from the
charge-sheet only on the ground that call details of his
mobile provided to the investigating authorities did
not disclose about his presence at the scene of the
incident on that particular date and as such the
charge-sheet was filed only against Vivek and Netram.
The prosecutrix had also named Deepak having
participated in the incident of gang rape in her
statement recorded under Section 161 and 164 of the
Cr.P.C. and had also named him in the FIR. It is only
on the strength of the application filed by complaint
under Section 190-193 of Cr.P.C., the trial court took
cognizance against Deepak for the offences
punishable under Section 376D and section 5 of
POCSO Act and said order has reached finality, as
already noticed hereinabove.
25. The complainant’s grievance, through-out has
been that Deepak had been threatening the
prosecutrix and other witnesses and that there is
every possibility of threat to their life in the event
they depose to the truth, and such apprehension is
justifiable, especially because accused is in a
domineering position. The complainant underlines the
influence and possibility of the clout being wielded on
the witnesses which cannot be discounted. The fact
that even after recording of the deposition of the
prosecutrix other prosecution witnesses have not
come forward to tender evidence though more than
nine dates of hearing has passed, would lend
credence to the apprehension of the complainant. The
High Court seems to have erred in not considering
these basic facts while considering the prayer for
grant of bail by taking into consideration the well32
established judicial pronouncements already noticed
hereinabove. That the court framed charges, prima
facie discloses the possibility and reasonable
suspicion of the accused prima facie culpability.
26. The Courts have placed the liberty of an
individual at a high pedestal and extended the
protection to such rights whenever and wherever
required. In the same breadth, it requires to be
noticed that emphasis has also been laid on furnishing
reasons for granting while balancing it with the
requirement of a fair trial bail even though such
reasoning may be brief.
27. In the aforesaid circumstances, we notice that
the impugned order granting bail is not only bereft of
material particulars which would justify grant of bail,
but it seems that the High Court has got swayed on
the ground of delay and the video having not been
recovered during the course of investigation and has
given a complete go by to the allegation made in the
FIR and statement recorded under Section 161 and
164 of the Cr.P.C. as also the testimony of the
prosecutrix before the jurisdictional court.
28. Hence, we are of the considered view, that order
of the High Court requires to be set aside and
accordingly it is set aside. We hereby direct that the
accused/respondents shall surrender before the
jurisdictional court within two weeks from today failing
which they shall be taken into custody We make it
clear that they will be at liberty to seek bail after the
evidence/depositions of the remaining witnesses are
recorded and in the event of such an application being
filed, the High Court shall consider the same on its
own merits and without being influenced by any of the
observations made hereinabove. We also make it
clear that the jurisdictional court shall not be
influenced by any of the observations made
hereinabove and are limited to present proceedings.
The appeals are accordingly allowed.
……………………………J.
[S. RAVINDRA BHAT]
……………………………J.
[ARAVIND KUMAR]
NEW DELHI;
August 23, 2023
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