Sunday 27 August 2023

Under which circumstances the Superior court can revoke the bail granted to accused?

  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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