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Monday, September 14, 2015

(i) The complaint filed against the accused needs to be thoroughly examined, including the aspect whether the complainant has filed a false or frivolous complaint on earlier occasion. The court should also examine the fact whether there is any family dispute between the accused and the complainant and the complainant must be clearly told that if the complaint is found to be false or frivolous, then strict action will be taken against him in accordance with law. If the connivance between the complainant and the investigating officer is established then action be taken against the investigating officer in accordance with law. (ii) The gravity of charge and the exact role of the accused must be properly comprehended. Before arrest, the arresting officer must record the valid reasons which have led to the arrest of the accused in the case diary. In exceptional cases, the reasons could be recorded immediately after the arrest, so that while dealing with the bail application, the remarks and observations of the arresting officer can also be properly evaluated by the court. (iii) It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion to grant bail must be exercised on the basis of the available material and the facts of the particular case. In cases where the court is of the considered view that the accused has joined the investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided. A great ignominy, humiliation and disgrace is attached to arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre-conviction stage or post-conviction stage. (iv) There is no justification for reading into Section 438 CrPC the limitations mentioned in Section 437 CrPC. The plentitude of Section 438 must be given its full play. There is no requirement that the accused must make out a “special case” for the exercise of the power to grant anticipatory bail. This virtually, reduces the salutary power conferred by Section 438 CrPC to a dead letter. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints and conditions on his freedom, by the acceptance of conditions which the court may deem fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail. (v) The proper course of action on an application for anticipatory bail ought to be that after evaluating the averments and accusations available on the record if the court is inclined to grant anticipatory bail then an interim bail be granted and notice be issued to the Public Prosecutor. After hearing the Public Prosecutor the court may either reject the anticipatory bail application or confirm the initial order of granting bail. The court would certainly be entitled to impose conditions for the grant of anticipatory bail. The Public Prosecutor or the complainant would be at liberty to move the same court for cancellation or modifying the conditions of anticipatory bail at any time if liberty granted by the court is misused. The anticipatory bail granted by the court should ordinarily be continued till the trial of the case. (vi) It is a settled legal position that the court which grants the bail also has the power to cancel it. The discretion of grant or cancellation of bail can be exercised either at the instance of the accused, the Public Prosecutor or the complainant, on finding new material or circumstances at any point of time. (vii) In pursuance of the order of the Court of Session or the High Court, once the accused is released on anticipatory bail by the trial court, then it would be unreasonable to compel the accused to surrender before the trial court and again apply for regular bail. (viii) Discretion vested in the court in all matters should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise. Similarly, the discretion vested with the court under Section 438 CrPC should also be exercised with caution and prudence. It is unnecessary to travel beyond it and subject the wide power and discretion conferred by the legislature to a rigorous code of self-imposed limitations. (ix) No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail because all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail. In consonance with legislative intention, the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case. (x) We shall also reproduce para 112 of the judgment wherein the Court delineated the following factors and parameters that need to be taken into consideration while dealing with anticipatory bail: (a) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (b) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence; (c) The possibility of the applicant to flee from justice; (d) The possibility of the accused's likelihood to repeat similar or other offences; (e) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; (f) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; (g) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution, because overimplication in the cases is a matter of common knowledge and concern; (h) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to free, fair and full investigation, and there should be prevention of harassment, humiliation and unjustified detention of the accused; (i) The Court should consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (j) Frivolity in 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 in entitled to an order of bail. Having regard to the facts of this case which have already been highlighted above, we feel that no purpose would be served in compelling the appellant to go behind bars, as an undertrial, by refusing the anticipatory bail in respect of alleged incident which is 17 years old and for which the charge is framed only in the year 2014. The investigation is complete and there is no allegation that the appellant may flee the course of justice. The FIR was registered and the trial commenced in the year 2001; albeit with the charge framed under Section 506(2) IPC, and during all these periods, the appellant has participated in the proceedings. There is no allegation that during this period he had tried to influence the witnesses. In the aforesaid circumstances, even when there is a serious charge levelled against the appellant, that by itself should not be the reason to deny anticipatory bail when the matter is examined keeping in view other factors enumerated above. The prosecutrix is at liberty to move an application for cancellation bail in trial court

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                   CRIMINAL APPEAL NOS. 1134-1135 OF 2015
    [arising out of Special Leave Petition (Crl.) Nos. 6028-6029 of 2014]


|BHADRESH BIPINBHAI SHETH                   |.....APPELLANT(S)           |
|VERSUS                                     |                            |
|STATE OF GUJARAT & ANOTHER                 |.....RESPONDENT(S)          |


                               J U D G M E N T


A.K. SIKRI, J.

      Leave granted.

The appellant herein, in these  appeals,  challenges  the  validity  of  the
judgment dated 18.07.2014 passed by High  Court  of  Judicature  at  Gujarat
cancelling the anticipatory bail which was granted to the appellant  by  the
Additional Sessions Judge, Court No.16 of Ahmedabad City Sessions Court.

Before coming to the factual narrative of a long drawn event that has  taken
place in respect of criminal trial pending against the appellant,  we  would
like to state, in capsiculated manner, the  circumstances  under  which  the
matter has landed up in this Court.
            The appellant and respondent No.2 (hereinafter  referred  to  as
the 'prosecutrix') were neighbours at the relevant time and  known  to  each
other.  On 29.05.2001, the prosecutrix wrote a complaint  to  the  Assistant
Police Commissioner, Crime Branch, Gaekwad Haveli, Ahmedabad  City  alleging
the harassment that was meted out to her by the appellant over a  period  of
time. Allegations of rape, emotional blackmail  and  threats  were  levelled
against the appellant therein.  After  two  days  i.e.  on  31.05.2001,  her
statement was recorded by a Police officer of the concerned  Police  Station
wherein she again levelled the allegations of maltreatment,  blackmail  etc.
However, in this statement of hers, which was recorded by the  Investigating
Officer (I.O.), allegations of rape  were  conspiciously  missing.   On  the
basis of statement made on 31.05.2001,  F.I.R.  was  registered  and  charge
under Section 506(2) of Indian Penal Code  (IPC)  was  framed  in  the  year
2001. The appellant was admitted to  bail  in  the  said  case.   Trial  has
proceeded which has not made much headway for number of years. In  the  year
2010, the prosecutrix made an  application  for  addition  of  charge  under
Section 376 IPC as well.  The Metropolitan Magistrate  held  that  the  said
application  should   be  taken  into   consideration   only   after   chief
examination of the complainant.  The prosecutrix challenged the  said  order
before the Court of  City  Session  Judge  at  Ahmedabad.   The  matter  was
remanded back to the Metropolitan  Magistrate  with  a  direction  that  the
application shall be heard afresh in its entirety after  giving  opportunity
to both parties.  On 31.03.2012, the Metropolitan  Magistrate  directed  the
Police to carry out special investigation under Section 173(8) of  the  Code
of  Criminal Procedure (hereinafter referred to as the 'Code').   Being  not
satisfied, the parties challenged the above order.  The matter travelled  up
to this Court wherein  certain  directions  were  issued.   Ultimately,  the
Police filed a revised chargesheet stating that a  prima  facie  case  under
Section 376 IPC was also made out.  In view  of  addition  of  charge  under
Section  376  IPC,  the  Magistrate  passed  the  order  on  25.04.2013  for
committal of proceedings to the Sessions  Court  and  taking  the  appellant
into custody.  However, execution of this order  for  taking  the  appellant
into custody was stayed till 07.05.2013.  During this period, the  appellant
moved the City Sessions Court No.16 at Ahmedabad for grant  of  anticipatory
bail which was ultimately granted on  18.05.2013.   Against  this  order  of
grant  of  anticipatory  bail,  the  prosecutrix  filed  criminal   revision
petition which has been allowed by the High Court vide impugned order  dated
18.07.2014 cancelling the anticipatory bail granted to  the  appellant.   As
pointed out above, it is the justification and legality of this order  which
is in question before us in the instant appeals.

The aforesaid brief resume depicts that the charge was  framed  against  the
appellant initially in the year 2001  only  under  Section  506(2)  of  IPC.
Insofar as charge under Section 376 of IPC is concerned, it  is  added  only
in the year 2014.  Further, the original charge  was  framed  under  Section
506(2) IPC on the basis of the statement recorded on  31.05.2001  which  was
treated as FIR and which did not contain the allegation  of  rape.   If  one
has to go by these facts, coupled with the fact that allegation of  rape  is
of the year  1997-98,  one  may  not  find  fault  with  the  order  of  the
Additional Session Judge granting anticipatory bail. However,  the  impugned
order passed by the High Court whereby the anticipatory bail  order  of  the
Additional Session Judge is cancelled, does not take the matter  in  such  a
simplistic manner and, therefore, a detailed discussion  on  the  issue  has
become imperative.

The High Court took note of the circumstances which led to the  addition  of
charge under Section 376  IPC  at  a  belated  stage.   Thus,  it  would  be
necessary to take stock of those detailed events and  thereafter  decide  as
to whether the order of the High Court is sustainable or not.   These  facts
are recapitulated with elaboration which is  absolutely  necessary  for  our
purposes, as under:

As mentioned above, before registration of the FIR  on   31.05.2001  on  the
basis of the statement, the prosecutrix had filed a complaint on  29.05.2001
before  the  Assistant  Commissioner  of  Police,  Crime  Branch.   In  this
complaint, she stated that she is a housewife and had been  residing  at  1,
Navpad Tenement, Opposite Nava Vikas Gruh, Behind Opera for  1½  years.  She
further mentioned that prior to shifting to this  place,  she  was  residing
with her in-laws at Sanand for  10  years.   She  was  married,  with  three
children, and her husband was a Jeweller. She alleged in the complaint  that
about 2½-3 years prior thereto, she had gone to C.N.  Vidhyalaya  where  her
daugher Devel was studying.  To return home, she was to catch a  Bus.   When
she was standing at the Bus Stand, the appellant,  who  was  her  neighbour,
passed through that place in his car  and  on  seeing  the  prosecutrix,  he
asked her to sit in the  car  as  he  was  also  going  home.   Though,  she
initially refused but thereafter she sat in the car  being  unaware  of  his
malafide intentions.  Thereafter, he took the car to some uninhabited  place
near Telav Village, beat her and forcefully raped her.  He  also  threatened
her not to narrate the above incident to anybody.   Being  scared  of  these
threats, she did not tell the incident to anybody.  Taking  benefit  of  the
circumstances, after one month he repeated the act of  rape  by  giving  the
threat that if the prosecutrix did not agree, he would tell her husband  and
others.   He took her to Hotel Ellis Town and raped her against her  wishes.
 After that, he threatened her of  dire  consequences  saying  that  he  had
taken her photographs.  This way he continued to  keep  relations  with  the
prosecutrix.  This complaint further states that she  shifted  to  Ahmedabad
but even after coming to Ahmedabad, he  started  sending  letters  with  the
threat to defame her.  At that stage, she  told  her  husband  and  in-laws.
She went to Jyoti Sangh, a NGO and encouraged by their support,  she  lodged
the complaint of continuous harassment on the part of the appellant.

On 31.05.2001, her statement was recorded in the Police Station  by  the  IO
in which the allegations of misbehaviour by the appellant are contained  and
the entire statement reads as under:
“The plaintiff Manishaben dictates  that  though  the  complaint  is  lodged
against  the  defendant  Bhadresh,  he  is  not  impoved  till  today.   Our
condition is becoming worst day by day.  In  these  two  days,  Bhadresh  is
making horrible face reading while our  access  and  is  doing  abusive  and
filthy behaviour.  Yesterday, during the night hours at  about  8.15  hours,
mother of Bhadresh was speaking in a very loud tone in  a  way  that  I  can
hear the same as they  are  residing  in  front  of  us  that  we  will  pay
maintenance and Bhadresh himself was speaking like this and  telling  me  to
live as his KEPT is also speaking like this.  He is  laughing  in  a  satire
manner in front of my house and he is also behaving with  my  husband  in  a
abusive manner which could not be borne or disclosed. At this time, when  we
left from Sanand to come to Ahmedabad, workman of Bhadresh  was  chasing  us
and was behind us for about 3 to 4 km  and  I  do  not  know  if  any  other
associates were of him or not going ahead, but his associates are  remaining
present surrounding me in a manner that he was keeping our watch chasing  us
even though I myself or my husband were not speaking anything.   Now,  I  am
worried about  my  daughter  who  is  growing  and  becoming  young  because
Bhadresh is also looking to her with bad intention.  His  intention  appears
to be mal.

      I have dictated the above statement in full sound state  of  mind  and
without any undue pressure.

Before me                   Sd/- Manish K Mehta
Vandana Patva               Date: 31.05.2001
31.05.2001”


During  preliminary  inquiries,  the  Police  recorded  the  statements   of
counsellors of Jyoti Sangh who confirmed that the prosecutrix had  made  the
statement to them regarding alleged rape by the appellant.  Be  that  as  it
may, the FIR was registered only under Section 506(2) of IPC  on  31.05.2001
bearing C.R. No.II. 3009/2001 and on that  basis,  charge  was  framed  only
under the aforesaid Section on 25.06.2001.  Further for one  reason  or  the
other, the prosecution case even under the said  charge  did  not  make  any
substantial progress.

On 07.12.2010, an application was moved by the prosecutrix for amending  the
charge by including the offence under Section 376 IPC as well on  the  basis
of complaint dated 29.05.2001 and treating the same as FIR.  Initially,  the
Metropolitan Magistrate did not agree with this request and passed an  order
to the effect that till the  examination-in-chief  of  the  prosecutrix  was
recorded, it was not justifiable to amend/alter  the  charge.   However,  in
the revision petition filed against that order, the Sessions Court  remanded
the case for fresh consideration.  After remand, the order dated  31.03.2012
was passed by the Metropolitan Magistrate  directing  further  investigation
under Section 173(8) of the Code implying  thereby  that  the  necessity  of
framing of such charge would depend upon the investigation  carried  out  by
the Police.  Without stating the details, it suffices to  mention  that  the
matter was taken by all the parties to the Sessions Court and  then  to  the
High Court.  Thereafter, the prosecutrix even came up to this Court  by  way
of SLP (Crl.) No.636/2013 against the order dated 23.10.2012 passed  by  the
High Court which had upheld the order of  the  Magistrate  who  had  already
ordered further investigation.  Said SLP (Crl.) No.636/2013 was disposed  of
on  04.02.2013  taking  note  of  the  fact  that  though  the  Metropolitan
Magistrate had ordered further inquiry by  the  Police  on  31.03.2012  with
direction to submit the report within four weeks, no such  report  had  been
submitted till that date.  On that basis, following order was passed:
“We are informed that till today the police  has  not  submitted  the  final
report pursuant to the order passed by the Magistrate.  If that  is  so,  we
are both surprised and pain at the inaction of the police and we direct  the
Investigating Officer of Criminal Case No. 51 of 2011,  pending  before  the
Metropolitan Magistrate, as directed  by  the  Magistrate,  and  submit  the
final report within four weeks from the  date  of  receipt/production  of  a
copy of this order before him.

In view of the above direction, the petitioner does not wish to  press  this
special leave petition any longer.  It is dismissed as not pressed.”


Thereafter,  the  Police  completed  the  investigation  and  submitted  the
report.  The Police filed the chargesheet adding  Section  376  of  the  IPC
against the appellant and  on  that  basis,  an  order  was  passed  by  the
Additional Chief Metropolitan Magistrate on  25.04.2013  thereby  committing
the case to the Sessions Court and further directing that the  appellant  be
taken into judicial custody, cancelling the  bail  bond.   It  is  in  these
circumstances the appellant moved an application for grant  of  anticipatory
bail to the said  Sessions  Court  which  was  granted  on  18.05.2013.   As
already noted above, the order granting bail to  the  appellant/accused  has
been cancelled by the High Court.

Mr. Dushyant Dave and Mr. Harin Raval, learned senior counsel appearing  for
the appellant took us through the material on record on the basis  of  which
it was  sought  to  be  argued  that  there  was  acquaintance  between  the
appellant and the  prosecutrix  and  the  circumstances  indicate  that  the
physical relationship, if any, was consensual.  It was also  submitted  that
in her statement  recorded  before  the  IO  on  31.05.2001,  there  was  no
allegation of rape; even when the charge was  framed  under  Section  506(2)
IPC the prosecutrix did not  object  to  the  framing  of  the  said  charge
simplicitor or insist upon addition of charge under Section 376  of  IPC  as
well; after a gap  of  more  than  9  years  from  the  framing  of  charge,
application was moved for this purpose; in the fresh  chargesheet  filed  by
the IO, the IO clearly observed that no other circumstantial evidence  could
be collected regarding the rape as alleged by  the  complainant  except  her
statement.  It was also submitted  that  in  the  complaint  made  to  Jyoti
Sangh, NGO, at the end of the complaint which was given by the  prosecutrix,
there was a noting that no action be taken on  the  said  complaint  as  the
parties were trying to arrive at amicable settlement.  The noting  reads  as
under:
“This case file be kept pending and whenever we  want,  only  then,  you  do
contest this case again and it is the wish of both of  them,  this  case  is
kept pending.

Before me              Sd/- Manisha K. Mehta
Vandana Patva               29.03.2001
29.03.2001.”

                 It was also pointed out that between  2001  and  2010,  the
prosecutrix did not appear to give her statement.   However,  the  statement
of one Vandana Patva, counsel in  the  said  NGO  was  recorded.   Mr.  Dave
referred to the cross-examination of the said witness wherein  this  witness
had admitted that in the statement dated 31.05.2001 recorded by the  Police,
no fact regarding rape was stated.  It was  also  not  mentioned  as  to  at
which place and at what  time,  incident  of  rape  had  taken  place.   The
learned senior counsel, thus, submitted  that  in  these  circumstances  the
learned Additional Session Judge rightly  granted  anticipatory  bail.   The
reasons adopted by the High Court in  cancelling  the  bail  were  commented
upon by the learned counsel  as  not  based  on  record,  particularly,  the
observations of the High Court that the prosecutrix had to  run  a  marathon
for getting her complaint registered as a  FIR  and  more  particularly  for
addition of charge under Section 376 of IPC.  They  further  submitted  that
the High Court wrongly recorded  that  the  Sessions  Court  had  failed  to
assign proper reasons for grant of anticipatory bail.  It  was  pointed  out
that the move on the part of the appellant in filing criminal cases  against
the husband of  the  prosecutrix,  in  which  the  prosecutrix  husband  was
acquitted, is treated by the High Court as tampering with  the  evidence  by
disturbing the witnesses and on that basis,  it  is  observed  by  the  High
Court that the appellant was not entitled to  the  benefit  of  anticipatory
bail.  Submission in this behalf was that even if  the  complaint  or  cases
lodged by the appellant against the husband of the prosecutrix are  presumed
to be false, they had nothing to do with the instant  case  and,  therefore,
such acts on the part of the appellant could never be treated  as  tampering
with the evidence.

The prosecutrix appeared in person and argued  her  case.   She  extensively
took us through the counter affidavit filed by  her  in  opposition  to  the
present proceedings on  the  basis  of  which  she  hammered  the  following
aspects:
(a)   The prosecutrix was harrased by the appellant.  First  act  of  sexual
intercourse  was  against  her  wishes  and  was  clearly  a  rape.    After
committing this rape, the appellant threatened her and started  blackmailing
her.  On that basis, he took undue advantage of  the  hapless  condition  of
the prosecutrix in which she was placed and  committed  subsequent  acts  of
intercourse  against  her  wishes  which  were  nothing  but  commission  of
offences under Section 376 of IPC.
(b)   Various letters  were  written  by  the  appellant  not  only  to  the
prosecutrix but to her other  family  members  as  well,  which  showed  his
continued harassment to the prosecutrix and her family members.
(c)   The appellant was  even  having  an  evil  eye  on  the  prosecutrix's
daughter who was of growing age and wanted to blackmail the  prosecutrix  in
this behalf as well.
(d)   In order to harass the prosecutrix, the appellant even  foisted  false
cases on  the  husband  of  the  prosecutrix  in  order  to  pressurize  the
prosecutrix to withdraw the case in question.
(e)   She also submitted that not only in the complaint made to Jyoti  Sangh
on 19.03.2001, she had levelled allegations of rape,  but  such  allegations
were also made in her complaint to the  ACP  on  29.05.2001.   According  to
her, in fact, the statement which was recorded on 31.05.2001 by the  IO  was
not correctly recorded who intentionally omitted  her  statement  concerning
her rape by the appellant, though specifically stated.   It  is  because  of
this reason that she had to file the application  in  the  trial  court  for
inclusion of charge under Section 376 IPC with  the  prayer  that  complaint
dated 29.05.2001 before the ACP should be treated as the  FIR  and  not  the
statement dated 31.05.2001 recorded by the IO.
(f)   She also submitted that she had to come up to this Court to  have  the
charge for offence under Section 376 of IPC framed against the appellant.

Ms. Hemantika Wahi, learned counsel appearing for the State,  supported  the
plea of the prosecutrix.  Her submission was  that  once  the  charge  under
Section 376 IPC has been added which was a serious charge  and  the  offence
being non-bailable, the proper course of action was to direct the  appellant
to surrender before the  trial  court  and  apply  for  regular  bail.   Her
submission was that having regard to the seriousness of this charge, it  was
not a case of anticipatory bail.

We have given our thoughtful and  serious  consideration  to  the  aforesaid
submissions on the charges, particularly, keeping in mind that  there  is  a
charge of  rape  against  the  appellant  and  the  case  projected  by  the
prosecutrix is that as a helpless and weak  soul,  she  has  been  immensely
harrassed, physically abused and mentally tortured by the appellant.

In the first place, it is necessary to remind ourselves that in the  present
proceedings, this Court is concerned not about the  feasibility  of  framing
of the charge under Section 376 IPC or merit thereof but  to  the  grant  of
anticipatory  bail  to  the  appellant.  Therefore,  the  arguments  of  the
prosecutrix that such a charge is rightly  framed  and  the  submissions  on
behalf of the appellant attempting to find the loopholes  and  the  weakness
in the prosecution case, would  not  be  of  much  relevance  to  the  issue
involved.  At this stage, it cannot be said as  to  whether  there  was  any
physical relationship between the appellant and the prosecutrix and, if  so,
whether it was consensual and, therefore, no charge of rape  was  made  out.
The fact  remains  that  a  charge  of  rape  has  been  framed.   It  would
ultimately be for the trial court to arrive at the findings  as  to  whether
such a charge stands proved or not, on the basis of evidence that  would  be
produced  by  the  prosecution  in  support  of  this  charge.   With  these
preliminary remarks, we advert to the core issue,  namely,  whether  in  the
circumstances of this case, appellant was entitled to anticipatory  bail  or
not and whether the High Court was justified in cancelling the  anticipatory
bail.

For this purpose, we would first highlight the admitted position which  runs
as follows:
                 The allegations of rape go back  to  the  years  1997-1998.
No doubt, in the statement dated 19.03.2001 given to NGO Jyoti Sangh by  the
prosecutrix, she had levelled the allegations of rape.  Equally,  no  doubt,
she had repeated these allegations in her complaint to ACP on 29.05.2001  as
well.  However, for some curious reasons, the allegations of  rape  did  not
find mention in her statement recorded by the IO on 31.05.2001 on the  basis
of which FIR was registered.  This possibility cannot be ruled out that  the
IO did not record the  statement  correctly  and  intentionally  omitted  to
mention about the allegations of rape.   Whether  this,  in  fact,  happened
would be tested during trial.  However, the fact remains that when  the  FIR
was registered on the basis of statement  recorded  on  31.05.2001  and  the
chargesheet was filed making out a  prima  facie  case  only  under  Section
506(2) of IPC, the prosecutrix did not say anything  at  that  time.   There
was no protest even when charge was framed by the concerned Magistrate  only
under Section 506(2) IPC.  The objection in this regard was raised  for  the
first time in the year 2008 i.e. almost 7 years after  the  framing  of  the
charge and application was filed in the year 2010 for including  the  charge
under Section 376 IPC as well on the ground that her complaint  to  the  ACP
given on 29.05.2001 be treated as  FIR.   The  prosecutrix  may  have  valid
reasons for this delay.  However, it is not for us to go into  the  same  at
this stage inasmuch as that is again a matter of trial and it would  be  for
the Sessions Court to ultimately  adjudge  as  to  whether  such  delay  was
suitably explained and/or has any bearing on the merits of the  charge.   It
is reiterated at the cost of repetition that we have to  simply  decide  the
question of feasibility of grant of anticipatory bail.

In a matter like this where allegations of rape pertain to the period  which
is almost 17 years ago and when no charge was framed under Section  376  IPC
in the year 2001, and even the  prosecutrix  did  not  take  any  steps  for
almost 9 years and the charge under Section 376 IPC is  added  only  in  the
year 2014, we see no reason why  the  appellant  should  not  be  given  the
benefit of anticipatory bail.  Merely because the charge under  Section  376
IPC, which is a serious charge, is now added, the  benefit  of  anticipatory
bail cannot be denied when such a charge is added after  a  long  period  of
time and inaction of the prosecutrix is also a contributory factor.
The High Court has remarked that the complainant had to run a  marathon  for
getting her complaint  registered  as  an  FIR  and  more  particularly  for
addition of charge  under  Section  376  IPC.   In  view  of  what  we  have
mentioned above, these observations are  not  correct.   Further,  the  High
Court has also wrongly mentioned that the Sessions Court  has  not  assigned
proper reasons for grant of anticipatory bail.  In fact, the  reasons  which
have persuaded us and recorded above, are precisely  the  reasons  given  by
the  Sessions  Court  itself  while  granting  anticipatory  bail   to   the
appellant. The  High  Court  has  also  wrongly  observed  that  it  is  the
appellant who was able to drag the matter for a decade before the  complaint
was registered under proper Sections.  The  record  of  the  case  does  not
support this observation of the High Court.  As far  as  the  discussion  in
the impugned order commenting upon the conduct of the  appellant  in  filing
false complaints and  cases  against  the  husband  of  the  prosecutrix  is
concerned, we find that the High Court has  made  contradictory  remarks  on
this aspect.  At one place, such a move on the  part  of  the  appellant  is
condemned  as  amounting  to  disturbing  the  witness  and  is  treated  as
tampering with evidence.  However, at another place, the High  Court  itself
remarked  that  the  complainant  or  the   prosecutrix   cannot   get   the
anticipatory bail cancelled on this basis and the  ground  of  misusing  the
order of bail after its grant is not made out.  As per the High  Court,  the
order of grant of bail by the Session Court itself was improper and that  is
the basis for cancelling the order passed by the Session Court.

Before we proceed further, we would like to  discuss  the  law  relating  to
grant  of  anticipatory  bail  as  has  been  developed   through   judicial
interpretative process.  A judgment which needs  to  be  pointed  out  is  a
Constitution Bench Judgment of this Court in  the  case  of  Gurbaksh  Singh
Sibbia and Others v. State of Punjab[1].  The  Constitution  Bench  in  this
case emphasized that provision of anticipatory  bail  enshrined  in  Section
438 of the Code is conceptualised  under  Article  21  of  the  Constitution
which relates to personal liberty.  Therefore, such a  provision  calls  for
liberal interpretation of Section 438 of the Code in light of Article 21  of
the Constitution.  The Code explains that an anticipatory  bail  is  a  pre-
arrest legal process which directs that if the person in whose favour it  is
issued is thereafter arrested on the accusation  in  respect  of  which  the
direction is issued, he shall be released on bail.  The distinction  between
an ordinary order of bail and an order of anticipatory bail is that  whereas
the former is granted after arrest and  therefore  means  release  from  the
custody of the police, the latter is granted in anticipation of  arrest  and
is therefore, effective at the very moment of  arrest.   A  direction  under
Section 438 is therefore intended to confer conditional  immunity  from  the
'touch' or confinement contemplated by Section 46 of the Code.  The  essence
of this provision is brought out in the following manner:
“26. We find a great deal of substance  in  Mr  Tarkunde’s  submission  that
since denial of bail amounts to deprivation of personal liberty,  the  court
should lean against the imposition of unnecessary restrictions on the  scope
of Section 438, especially when no such restrictions have  been  imposed  by
the legislature in the terms of that section. Section 438  is  a  procedural
provision which is concerned with the personal liberty  of  the  individual,
who is entitled to the benefit of the presumption of innocence since  he  is
not, on the date of his application for anticipatory bail, convicted of  the
offence in respect of which he seeks  bail.  An  over-generous  infusion  of
constraints and conditions which are not to be  found  in  Section  438  can
make its provisions constitutionally vulnerable since the right to  personal
freedom  cannot  be  made  to  depend  on   compliance   with   unreasonable
restrictions. The beneficent provision contained  in  Section  438  must  be
saved, not jettisoned. No doubt can linger  after  the  decision  in  Maneka
Gandhi v. Union of India, (1978) 1 SCC  248,  that  in  order  to  meet  the
challenge of Article 21 of the Constitution, the  procedure  established  by
law  for  depriving  a  person  of  his  liberty  must  be  fair,  just  and
reasonable. Section 438, in the  form  in  which  it  is  conceived  by  the
legislature, is open to no exception on the  ground  that  it  prescribes  a
procedure which is unjust or unfair.  We  ought,  at  all  costs,  to  avoid
throwing it open to a Constitutional challenge by reading words in it  which
are not to be found therein.”

Though the Court observed that the principles  which  govern  the  grant  of
ordinary  bail  may  not  furnish  an  exact  parallel  to  the   right   to
anticipatory bail, still such principles have to be kept  in  mind,  namely,
the object of bail which is to secure the attendance of the accused  at  the
trial, and the proper test to be applied in the  solution  of  the  question
whether bail should be granted or refused is whether  it  is  probable  that
the party will appear to take his trial.   Otherwise,  bail  is  not  to  be
withheld as a punishment.  The Court has also to consider whether  there  is
any possibility of  the  accused  tampering  with  evidence  or  influencing
witnesses etc.  Once these tests are satisfied, bail should  be  granted  to
an undertrial which is also important as viewed from another angle,  namely,
an accused person who enjoys freedom is in a much better  position  to  look
after his case and to properly defend himself than  if he were  in  custody.
Thus, grant or non-grant of bail depends upon  a  variety  of  circumstances
and the cumulative effect thereof enters into judicial verdict.   The  Court
stresses that any single circumstance cannot  be  treated  as  of  universal
validity or as necessarily justifying the grant or refusal of  bail.   After
clarifying  this  position,  the   Court   discussed   the   inferences   of
anticipatory bail in the following manner:
“31.  In regard to anticipatory bail, if the proposed accusation appears  to
stem not from motives of furthering  the  ends  of  justice  but  from  some
ulterior motive, the object being to injure and humiliate the  applicant  by
having him arrested, a direction for the release of the  applicant  on  bail
in the event of his arrest would generally be made. On the  other  hand,  if
it appears likely,  considering  the  antecedents  of  the  applicant,  that
taking advantage of the  order  of  anticipatory  bail  he  will  flee  from
justice, such an order  would  not  be  made.  But  the  converse  of  these
propositions is not necessarily true. That is to  say,  it  cannot  be  laid
down as an inexorable rule that anticipatory bail cannot be  granted  unless
the proposed accusation appears to be actuated by mala fides; and,  equally,
that anticipatory bail must  be  granted  if  there  is  no  fear  that  the
applicant  will  abscond.  There  are  several  other  considerations,   too
numerous to enumerate, the combined effect of  which  must  weigh  with  the
court  while  granting  or  rejecting  anticipatory  bail.  The  nature  and
seriousness of the proposed charges, the context of  the  events  likely  to
lead to  the  making  of  the  charges,  a  reasonable  possibility  of  the
applicant’s  presence  not  being  secured  at  the  trial,   a   reasonable
apprehension that witnesses will be tampered with and “the larger  interests
of the public or the State” are some of the considerations which  the  court
has to keep in mind while deciding an  application  for  anticipatory  bail.
The relevance of these considerations  was  pointed  out  in  The  State  v.
Captain Jagjit Singh, AIR 1962 SC 253 : (1962) 3 SCR 622 : (1962) 1  Cri  LJ
216, which, though, was a case under the old Section 498  which  corresponds
to the present Section 439 of the Code. It is of paramount consideration  to
remember that the  freedom  of  the  individual  is  as  necessary  for  the
survival of  the  society  as  it  is  for  the  egoistic  purposes  of  the
individual. A person seeking anticipatory bail is still a free man  entitled
to the presumption of innocence. He is willing to submit  to  restraints  on
his freedom, by the acceptance of conditions which the court may  think  fit
to impose, in consideration of the assurance that if arrested, he  shall  be
enlarged on bail.”

It is pertinent to note that while interpreting the expression “may,  if  it
thinks fit” occurring in Section 438(1) of the Code, the Court  pointed  out
that it gives discretion to the Court to exercise the power in a  particular
case or not, and once such a discretion is there merely because the  accused
is charged with a serious offence may not by itself be the reason to  refuse
the  grant  of  anticipatory  bail  if  the  circumstances   are   otherwise
justified.  At the same time, it is also the obligation of the applicant  to
make out a case for grant of anticipatory bail.  But  that  would  not  mean
that he has to make out a “special case”.  The Court also  remarked  that  a
wise  exercise  of  judicial  power  inevitably  takes  care  of  the   evil
consequences which are likely to flow out of its intemperate use.

Another case to which we would like to refer is the judgment of  a  Division
Bench of this Court in the case of Siddharam Satlingappa Mhetre v. State  of
Maharashtra and Others[2].  This case lays down an exhaustive commentary  of
Section 438 of the Code covering, in an  erudite  fashion,  almost  all  the
aspects and in the process relies  upon  the  aforesaid  Constitution  Bench
judgment in Gurbaksh Singh's case.   In  the  very  first  para,  the  Court
highlighted the conflicting interests which are to be balanced while  taking
a decision as to whether bail is to be granted or not, as is clear from  the
following observations:
“1.  Leave granted.  This appeal involves issues of great public  importance
pertaining to the  importance  of  individual's  personal  liberty  and  the
society's interest.  Society has a vital interest in  grant  or  refusal  of
bail because every criminal offence is the offence against the  State.   The
order granting or refusing bail must reflect  perfect  balance  between  the
conflicting interests,  namely,  sanctity  of  individual  liberty  and  the
interest of the  society.   The  law  of  bails  dovetails  two  conflicting
interests, namely, on the one hand, the requirements  of  shielding  society
from the hazards of those committing crimes and  potentiality  of  repeating
the same crime while on bail and on the other hand,  absolute  adherence  to
the fundamental principle of criminal  jurisprudence  regarding  presumption
of innocence of an accused until he is found  guilty  and  the  sanctity  of
individual liberty.”

The principles which can be culled out, for  the  purposes  of  the  instant
case, can be stated as under:
(i)   The complaint  filed  against  the  accused  needs  to  be  thoroughly
examined, including the aspect whether the complainant has filed a false  or
frivolous complaint on earlier occasion.  The court should also examine  the
fact whether there is  any  family  dispute  between  the  accused  and  the
complainant and the complainant must be clearly told that if  the  complaint
is found to be false or frivolous, then strict action will be taken  against
him in accordance with law.  If the connivance between the  complainant  and
the investigating officer is established then action be  taken  against  the
investigating officer in accordance with law.
(ii)  The gravity of charge and the  exact  role  of  the  accused  must  be
properly comprehended.  Before arrest, the  arresting  officer  must  record
the valid reasons which have led to the arrest of the accused  in  the  case
diary.  In exceptional cases, the  reasons  could  be  recorded  immediately
after the arrest, so that while  dealing  with  the  bail  application,  the
remarks and observations of the  arresting  officer  can  also  be  properly
evaluated by the court.
(iii) It is imperative for the  courts  to  carefully  and  with  meticulous
precision evaluate the facts of the case.   The  discretion  to  grant  bail
must be exercised on the basis of the available material and  the  facts  of
the particular case.  In cases where the court is  of  the  considered  view
that the accused has joined the investigation and he  is  fully  cooperating
with the investigating agency and is not likely to abscond, in  that  event,
custodial interrogation should be avoided.  A  great  ignominy,  humiliation
and  disgrace  is  attached  to  arrest.   Arrest  leads  to  many   serious
consequences not only for the accused but  for  the  entire  family  and  at
times for the entire community.  Most people do  not  make  any  distinction
between arrest at a pre-conviction stage or post-conviction stage.
(iv)  There is no justification  for  reading  into  Section  438  CrPC  the
limitations mentioned in Section 437 CrPC.  The plentitude  of  Section  438
must be given its full play.  There is no requirement that the accused  must
make  out  a  “special  case”  for  the  exercise  of  the  power  to  grant
anticipatory bail.  This virtually, reduces the salutary power conferred  by
Section 438 CrPC to a dead letter.  A person seeking  anticipatory  bail  is
still a free man entitled to the presumption of innocence.   He  is  willing
to submit to restraints and conditions on his freedom, by the acceptance  of
conditions which the court may deem fit to impose, in consideration  of  the
assurance that if arrested, he shall be enlarged on bail.
(v)   The proper course of action on an application  for  anticipatory  bail
ought to be that after evaluating the averments  and  accusations  available
on the record if the court is inclined to grant anticipatory  bail  then  an
interim bail be granted and notice  be  issued  to  the  Public  Prosecutor.
After hearing  the  Public  Prosecutor  the  court  may  either  reject  the
anticipatory bail application or  confirm  the  initial  order  of  granting
bail.  The court would certainly be entitled to impose  conditions  for  the
grant of anticipatory bail.  The Public Prosecutor or the complainant  would
be at liberty to move the same  court  for  cancellation  or  modifying  the
conditions of anticipatory bail at any time if liberty granted by the  court
is misused.  The anticipatory bail granted by the  court  should  ordinarily
be continued till the trial of the case.
(vi)  It is a settled legal position that the court which  grants  the  bail
also has the power to cancel it.  The discretion of  grant  or  cancellation
of bail can be exercised either at the instance of the accused,  the  Public
Prosecutor or the complainant, on finding new material or  circumstances  at
any point of time.
(vii) In pursuance of the order of the Court of Session or the  High  Court,
once the accused is released on anticipatory bail by the trial  court,  then
it would be unreasonable to compel  the  accused  to  surrender  before  the
trial court and again apply for regular bail.
(viii)      Discretion  vested  in  the  court  in  all  matters  should  be
exercised  with  care  and  circumspection  depending  upon  the  facts  and
circumstances justifying its exercise.   Similarly,  the  discretion  vested
with the court under Section 438 CrPC should also be exercised with  caution
and prudence.  It is unnecessary to travel beyond it and  subject  the  wide
power and discretion conferred by the legislature  to  a  rigorous  code  of
self-imposed limitations.
(ix)  No inflexible guidelines or straitjacket formula can be  provided  for
grant  or  refusal  of  anticipatory  bail  because  all  circumstances  and
situations of future cannot be clearly visualised for the grant  or  refusal
of anticipatory bail.  In consonance with legislative intention,  the  grant
or refusal of anticipatory bail should necessarily depend on the  facts  and
circumstances of each case.
(x)   We shall also reproduce para 112 of the  judgment  wherein  the  Court
delineated the following factors and parameters that need to be  taken  into
consideration while dealing with anticipatory bail:
(a)   The nature and gravity of the accusation and the  exact  role  of  the
accused must be properly comprehended before arrest is made;
(b)   The antecedents of the applicant including the fact as to whether  the
accused has previously undergone imprisonment on conviction by  a  court  in
respect of any cognizable offence;
(c)   The possibility of the applicant to flee from justice;
(d)   The possibility of the  accused's  likelihood  to  repeat  similar  or
other offences;
(e)   Where the accusations have been made only with the object of  injuring
or humiliating the applicant by arresting him or her;
(f)   Impact of grant of anticipatory bail particularly in  cases  of  large
magnitude affecting a very large number of people;
(g)   The courts must evaluate the entire  available  material  against  the
accused very carefully.  The court must also clearly  comprehend  the  exact
role of the accused in  the  case.   The  cases  in  which  the  accused  is
implicated with the help of Sections 34 and 149 of the Penal Code, 1860  the
court  should  consider  with  even  greater  care  and   caution,   because
overimplication in the cases is a matter of common knowledge and concern;
(h)   While considering  the  prayer  for  grant  of  anticipatory  bail,  a
balance has to be struck between two factors, namely,  no  prejudice  should
be caused to  free,  fair  and  full  investigation,  and  there  should  be
prevention of harassment,  humiliation  and  unjustified  detention  of  the
accused;
(i)   The Court should consider reasonable apprehension of tampering of  the
witness or apprehension of threat to the complainant;
(j)   Frivolity in 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
in entitled to an order of bail.

Having regard to the facts of this case which have already been  highlighted
above, we feel that no purpose would be served in compelling  the  appellant
to go behind bars, as an undertrial, by refusing the  anticipatory  bail  in
respect of alleged incident which is 17 years old and for which  the  charge
is framed only in the year 2014.  The investigation is  complete  and  there
is no allegation that the appellant may flee the  course  of  justice.   The
FIR was registered and the trial commenced in the  year  2001;  albeit  with
the charge framed under Section 506(2) IPC, and during  all  these  periods,
the appellant has participated in the proceedings.  There is  no  allegation
that during this period he had tried to influence  the  witnesses.   In  the
aforesaid circumstances, even  when  there  is  a  serious  charge  levelled
against the appellant, that by itself should  not  be  the  reason  to  deny
anticipatory bail when the matter is examined keeping in view other  factors
enumerated above.

The prosecutrix has moved an application in these proceedings  for  perusing
new evidence on the basis  of  which  she  claims  that  the  appellant  has
committed breach of conditions of anticipatory bail and  regular  bail.   It
is  not  necessary  for  us  to  go  into  the  allegations  made  in   this
application.  She would be at liberty to make  such  an  application  before
the trial court for cancellation of bail.  We may clarify that we  have  not
gone through the merits of  this  application,  and  as  and  when  such  an
application is made, the trial court would be free to examine the  same  and
pass the order as the trial court deems fit in accordance with law.

Before we part, in order to balance the equities, we are of  the  view  that
the trial in this case may be expeditiously conducted and  the  trial  court
should endeavour to complete the same within one year.

As a result, we set aside the impugned judgment and restore the order  dated
18.05.2013 of the learned Additional Sessions  Judge  granting  anticipatory
bail to the appellant  on  the  conditions  mentioned  in  the  said  order.
Appeals are allowed in the aforesaid terms.
                             .............................................J.
                                                                (A.K. SIKRI)


                             .............................................J.
                                                     (ROHINTON FALI NARIMAN)

NEW DELHI;
SEPTEMBER 01, 2015.
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[1]   (1980) 2 SCC 565
[2]   (2011) 1 SCC 694

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