Ordinarily in serious offences like rape, murder, dacoity,
etc., once the trial commences and the prosecution starts
examining its witnesses, the Court be it the Trial Court or the
High Court should be loath in entertaining the bail
application of the accused. {Para 14}
REPORTABLE
IN THE SUPREME COURT OF INDIA
EXTRAORDINARY APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CRIMINAL) NO. 13378 OF 2024
X Vs STATE OF RAJASTHAN & ANR.
Dated: 27th November, 2024.
Citation: 2024 INSC 909.
1. This petition arises from the impugned order passed by
the High Court of Judicature for Rajasthan at Jodhpur dated
12-02-2024 in SB Criminal Miscellaneous Bail Application
No.1351/2024 by which the bail application filed by the
Respondent No.2 – herein (original accused) came to be
allowed and the Respondent No.2 was ordered to be released
on bail pending trial.
2. It appears from the materials on record that a First
Information Report came to be lodged by the petitioner –
herein dated 18-09-2023 against the Respondent No.2 –
herein and a co-accused for the offence punishable under
Section 376D and Section 342 of the Indian Penal Code. The
FIR bearing No.83/2023 was registered with Police Station
Nachna, District Jaisalmer, Rajasthan.
3. The Respondent No.2 – herein and the co-accused were
arrested in connection with the alleged offence. The
co-accused was ordered to be enlarged on bail long time back.
4. It appears that after the FIR was registered, the statement
of the victim, i.e., the petitioner – herein was recorded by the
Magistrate under Section 164 of the Code of Criminal
Procedure, 1973.
5. Upon conclusion of the investigation, charge-sheet was
filed.
6. The criminal case being committed to the Court of
Sessions came to be registered as the Sessions Case
No.53/2023 pending as on date in the Court of Additional
District and Sessions Judge, Pokaran (Jaisalmer).
7. The prosecution has examined one witness so far.
8. In the midst of the trial, the Respondent No.2 – herein
preferred a bail application before the Trial Court. The Trial
Court declined to release the accused on bail.
9. The accused went before the High Court and prayed for
bail.
10. The High Court took into consideration some
discrepancies emanating between the FIR and the statement
of the victim recorded under Section 164 of the Code. The
High Court was persuaded to release the Respondent No.2 –
herein on bail.
11. Having regard to such discrepancies in the FIR and the
statement recorded under Section 164 of the Code, the
operative part of the impugned order passed by the High
Court reads thus:-
“Para 9. Accordingly, the instant bail application
under Section 439 Cr. P.C is allowed and it is
ordered that the accused-petitioner as amed in
the cause title shall be enlarged on bail provided
he furnishes a personal bond in the sum of
Rs.50,000/- with two sureties of Rs.25,000/-
each to the satisfaction of the learned trial Judge
for his appearance before the court concerned on
all the dates of hearing as and when called upon
to do so.”
12. In such circumstances, referred to above, the petitioner,
i.e., the victim is here before us with the present petition.
13. We have heard the learned counsel appearing for the
petitioner and the learned counsel appearing for the State.
The Respondent No.2 – accused although served with the
notice issued by this Court, yet has chosen not to remain
present before this Court either in-person or through an
Advocate and oppose this petition.
14. Ordinarily in serious offences like rape, murder, dacoity,
etc., once the trial commences and the prosecution starts
examining its witnesses, the Court be it the Trial Court or the
High Court should be loath in entertaining the bail
application of the accused.
15. Over a period of time, we have noticed two things, i.e., (i)
either bail is granted after the charge is framed and just
before the victim is to be examined by the prosecution before
the trial court, or (ii) bail is granted once the recording of the
oral evidence of the victim is complete by looking into some
discrepancies here or there in the deposition and thereby
testing the credibility of the victim.
16. We are of the view that the aforesaid is not a correct
practice that the Courts below should adopt. Once the trial
commences, it should be allowed to reach to its final
conclusion which may either result in the conviction of the
accused or acquittal of the accused. The moment the High
Court exercises its discretion in favour of the accused and
orders release of the accused on bail by looking into the
deposition of the victim, it will have its own impact on the
pending trial when it comes to appreciating the oral evidence
of the victim. It is only in the event if the trial gets unduly
delayed and that too for no fault on the part of the accused,
the Court may be justified in ordering his release on bail on
the ground that right of the accused to have a speedy trial
has been infringed.
17. In the case on hand, the victim is yet to be examined. Her
mother who, according to the case of the prosecution, is an
eye-witness has also not been examined so far. The High
Court seems to have looked into few discrepancies in the FIR
compared to the statement of victim recorded under Section
164 of the Code. This could not have been a good ground to
exercise discretion in favour of an accused in a serious
offence like rape.
18. However, we are of the view that now at this point of time,
we should not disturb the impugned order passed by the High
Court. At the same time, we should impose appropriate
conditions so as to ensure that the Respondent No.2 – herein
and the co-accused do not influence the prosecution
witnesses or try to tamper with the evidence in any manner.
Even while enlarging the accused on bail, the High Court
should have been conscious of this fact. The High Court has
thought fit to only ask the Respondent No.2 - accused –
herein to furnish solvent surety of an amount of Rs. 50,000/-
without imposing any appropriate conditions.
19. We wonder if the High Court was made aware of the fact
that the victim and her mother as well as both the accused
are residing in the very same village viz. Magriyan Ki Dhani
Satyaya, District Jaisalmer, Rajasthan.
20. In such circumstances, without disturbing the order of
bail passed by the High Court, we direct that the Respondent
No.2 – herein shall not enter the said village till the
completion of the trial. As we have asked the respondent
No.2 – accused not to enter the village, he shall furnish
address of his new residence to the investigating officer
attached with the concerned police station. The Respondent
No.2 shall not try to influence any of the prosecution
witnesses in any manner or directly or indirectly try to
contact the victim and her family.
21. Having regard to the nature of the alleged crime, it will be
in the fitness of things if the Trial Court gives some priority to
the Sessions Case No.53/2023 and try to dispose it of within
a period of three months from today.
22. We clarify that what has been observed by us in this
order are just prima facie observations and shall not be
considered as an expression of any final opinion as regards
the guilt or innocence of the accused.
23. The Special Leave Petition is disposed of in above terms.
24. Pending applications, if any, also stand disposed of.
…………………………………J.
( J.B. Pardiwala)
………………………………..J.
(R. Mahadevan)
New Delhi;
27th November, 2024
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