merely because the appellants have higher qualifications would not mean that they automatically become entitled to the pay-scale of higher post than the post to which they were appointed. The ratio decided in the case of State of Haryana vs. Kamal Shahrawat will not apply in the facts of the present case for the simple reason that the appellants have been serving in the college as a lecturer for the last 25 years. 19. After giving our anxious consideration in the matter, we are of the view that in the special facts and circumstances of the present case, the appellants are entitled to get the pay-scale at par with the teachers of the respondent college inasmuch as they have been discharging the same duties and also possessing the required qualification. However, this order will not create a precedent.

                                                                ‘Reportable’

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION


                     CIVIL APPEAL Nos.6691-6692 OF 2015
           (Arising out of S.L.P.(Civil) Nos.17176-17177 of 2013)


Gurdas Singh and others etc.                …..Appellant(s)
                                   versus

State of Punjab and others                  ..Respondent(s)

                                    with

                     CIVIL APPEAL Nos.6693-6694 OF 2015
             (Arising out of SLP (Civil) Nos.8082-8083 of 2014)

Dev Raj Kashyap and another                   ….Appellant(s)

                                   versus

State of Punjab and others                     ..Respondent(s)


                                  JUDGMENT

M. Y. EQBAL, J.



Leave granted.

2.    These appeals by special leave are directed against the  Judgment  and
order dated 26.3.2013 passed by the High Court of Punjab and Haryana in  LPA
Nos.76 and 78 of 2012, whereby Division Bench of the  High  Court  dismissed
the Letters Patent Appeals preferred by  the  appellants-teachers  upholding
the decision of  the  learned  Single  Judge  who  disposed  of  their  writ
petitions with certain directions.



3.    The facts of the case in brief are that various writ petitions at  the
instance of teachers of two of the Sanskrit Institutes at Patiala and  Nabha
were filed, which were clubbed and segregated by the  learned  Single  Judge
under two heads. First, the cases in the  nature  of  public  interest  that
were  filed  by  the  affected  teachers  themselves   that   the   Sanskrit
Mahavidyalya, Patiala and Sanskrit Institute at Nabha shall not  be  brought
down to the level of school since they conduct courses at par with  colleges
beyond the level of matriculation and that the institutes shall be run  with
teachers of college cadre.  Secondly, the claims  at  the  instance  of  the
teachers that they are entitled to the scales of pay commensurate  with  the
Lecturers and Professors of colleges since the syllabi for the  courses  are
approved by the Punjabi University at Patiala  and  the  qualifications  for
teachers are as prescribed by the University.


4.    The common ground for all the teachers, who have  filed  various  writ
petitions, is that in a suit filed by one Acharya  Lekh  Ram  Dixit  against
State of Punjab, when he was sought to  be  transferred  from  the  Sanskrit
Mahavidyalaya, Patiala to a school, he claimed relief of restraint order  on
the ground that the institute was equivalent  to  a  college  and  any  such
transfer would not be permissible. The Court  accepted  the  contention  and
decreed the suit and also held that he would be entitled  to  the  scale  of
pay of a Lecturer in colleges. This was the central plank on  which  several
teachers working in these two institutes claimed the same relief.


5.    The factual background of the matter, as pleaded  before  the  learned
Single Judge, is that the Sanskrit  Mahavidyalaya  Patiala  is  reported  to
have come into existence in the Patiala State  for  imparting  education  in
the classical language of Sanskrit in  the  year  1860.  Later  English  and
Mathematics languages had been introduced in the year 1862 and in 1870,  the
Maharaja of Patiala created an Education Department and  the  institute  was
affiliated to the Calcutta University in  the  year  1874.  The  Viceroy  of
India Lord North Brooke  laid  the  foundation  stone  of  Mahindra  College
Patiala and Lord Rippon inaugurated the college building in the  year  1884.
The courses offered at the Mahavidyalaya were Shastri, Vishara, Prajana  all
in Sanskrit and Gyani, Vidwan and Budhiman all in Punjabi.  The  classes  in
Sanskrit and Punjabi were separated  from  the  college  and  moved  to  the
separate institutions  in  the  name  of  Sanskrit  Vidyalaya  and  Gurmukhi
Vidyalaya, Patiala in 1912. These two Vidyalayas were  amalgamated  in  1963
and a new institution namely  the  Government  Institute  of  Classical  and
Modern  Indian  Language(MIL),  Patiala   was   established.   The   Punjabi
University at Patiala laid down the qualification of teaching staff  of  the
affiliated institution for Oriental Titled (OT)  and  MIL  examination.  For
the Sanskrit teaching staff, the qualification was BA+Shastri+Prabhakar  for
teaching Prajana and Visharad and for still higher  course  of  Shastri,  MA
Sanskrit+Shastri+Acharya were needed.

6.    It  has  been  pleaded  that  the  Institution  at  Patiala  had  been
originally  affiliated  to  Punjab   University,   Chandigarh   but   w.e.f.
13.06.1969, it was  affiliated  to  the  Punjabi  University,  Patiala.  The
University's letter to the institute clearly showed that it was  treated  as
a college and came within the purview of the University. It  was  again  the
University that laid down qualification, pay scale and qualification of  the
teaching  staff  for  the  Mahavidyalaya  at  Patiala.  The  Senate  of  the
University had made the recommendation with reference to qualifications  and
pay scales on 25.12.1970  and  the  State  of  Punjab  itself  approved  the
Mahavidyalaya as a college on 22.6.1972.

7.    The stand-off between the teaching staff and the State really  started
only when the State of Punjab tried to bring the institute to the  level  of
school when aforesaid Acharya Lekh Ram filed a civil suit  stating  that  he
was a teacher in a college cadre and could not  be  transferred  to  school.
The suit had been decreed by the Special Judge, Patiala  and  the  order  of
transfer to a school was declared as illegal. The case was contested by  the
State upto this Court  and  at  all  levels,  the  trial  Court  decree  was
affirmed. The special leave petitions preferred against High Court  decision
were dismissed at the admission stage.  The plaintiff in that suit had  also
applied for release of arrears on the basis that he was entitled  to  scales
of Lecturer in a college and  the  DPI  (Colleges)  had  also  released  the
arrears on 25.09.1989.


8.    The appellants’ further  case  is  that  the  institutes  were  always
treated as  college.  Considering  the  pleadings  and  contentions  of  the
parties and observing that  the  State  itself  has  not  made  any  serious
dispute  in  this  regard,  the  learned  Single  Judge  directed  that  the
Institute of Oriental Languages shall be treated as  equivalent  to  college
and it has come under the control of the  Director  of  Public  Instructions
(Colleges).  It is affiliated to the Punjabi University at  Patiala.  If  it
is recognized as college, there is no  scope  for  the  Director  of  Public
Instructions (Schools) to have any authority  to  make  transfers  from  the
school cadre to this institute.

9.     With  regard  to  parity  of  scales,  learned  Single  Judge,  while
disposing of the writ petitions, held that
“All those persons, who have been brought from school cadre and  repatriated
or liable to repatriation shall have no claim to parity in  scales.  On  the
other  hand,  the  persons,  who  have  been  appointed  at  the  institutes
themselves  directly  and  who  possess  qualifications  as   lecturers   as
prescribed by the University or who have been  brought  from  college  cadre
from any other college  shall  alone  be  entitled  to  the  scales  of  pay
equivalent to that of Lecturers. The scales shall be  worked  out  from  the
date of their  engagement  at  the  institutes  and  the  amounts  shall  be
calculated and be paid to them within 8 weeks from the date  of  receipt  of
copy of the order. If amongst the teachers  in  the  institutes,  there  are
teachers who are brought from the school cadre but who have qualified to  be
Lecturers in a college, with qualification so acquired, the scales could  be
considered for revision and  for  retention  in  the  institute  itself  and
placed in the college cadre. Their scales will be revised only from the  day
when orders are passed for the  retention  in  the  institutes  and  when  a
decision is taken to treat them as coming within  the  college  cadre.  This
exercise shall be completed by the Director of Public Instructions  Colleges
and the  appropriate  sanctions  shall  be  issued  by  the  Government  for
appropriate revision of their scales commensurate with their  qualifications
and the status as persons belonging to the college  cadre,  within  8  weeks
from the date of receipt of the copy of this order.”

10.   Aggrieved by the decision of the learned Single Judge, the appellants-
writ petitioners of the three of  the  aforesaid  writ  petitions  preferred
Letters Patent Appeals before  the  Division  Bench  of  High  Court,  which
proceeded on the following two issues:
“i) Whether these school cadre teachers have a right to be retained  in  two
institutes or they can be transferred to school cadre?
ii) Whether the appellants admittedly belong to school  cadre  are  entitled
to the pay scales of Lecturers of the colleges on the  principle  of  ‘equal
pay for equal work’ on the ground  that  they  have  been  teaching  in  the
colleges?”


11.   The Division Bench of the High  Court  observed  that  the  appellants
were working in the  Institute  at  Nabha  claimed  parity  of  salary  with
teachers working in Colleges and they would make pointed  reference  to  the
fact that through instructions dated 04.03.1975,  Secretary  to  Government,
Punjab Education Department to the Director of Public  Instructions;  Punjab
had sanctioned the en-cadrement of the posts of Pradhanacharya  and  Acharya
of Sanskrit Mahavidyalaya, Nabha in the college cadre in the pay scale of  `
Rs.400-600 and Rs.300-600 respectively.  The State of Punjab in its  counter
contended that the appellants had never  been  appointed  from  the  college
cadre but they belonged  to  the  school  cadre.  The  appellants,  however,
disputed this position by  making  reference  to  the  letter  of  Assistant
Secretary, Education Department to the Deputy Director,  College,  Education
stating that the  appellants  were  working  in  the  college  wing  of  the
Sanskrit Mahavidyalaya ever since it was upgraded as  college  in  the  year
1972.

12.   Be that as it may, after having heard learned  counsel  appearing  for
the parties, the Division Bench of the High Court  upheld  the  judgment  of
the learned Single Judge holding that:
“…merely because the appellants were made to teach in a college,  would  not
mean that they are  to  be  equated  with  the  college  lecturers  and  the
principle of ‘equal pay for equal work’ would apply. These  appellants  were
appointed in a school cadre as per the qualifications which  are  prescribed
for school teachers. The contention of the respondents  that  the  essential
qualification of passing NET Exam is not possessed by the appellants,  could
not be disputed by the appellants. That apart merely because the  appellants
have higher qualification would not  mean  that  they  automatically  become
entitled to the pay scales of higher post than the post to  which  they  are
appointed.
Thus, merely because the institute where  the  appellants  are  teaching  is
affiliated with the University land thus gets the status of a college  would
not mean that the appellants shall also be
entitled to the pay scales of lecturers.  Further,  the  contention  of  the
appellants  that  they  fulfill  all  the  qualifications  laid   down   for
appointment to the post of Lecturers is not correct.  Even  otherwise,  that
cannot be a ground for extending the benefit of ‘equal pay for equal  work’,
as the appellants were appointed  in  school  cadre  on  the  basis  of  the
qualifications meant for school cadres and the procedure for appointment  of
school cadres is  totally  different  from  the  lecturers.  For  all  other
reasons mentioned above  we  uphold  the  judgment  of  the  learned  Single
Judge.”


13.   With regard to the issue whether  these  school  cadre  teachers  have
right to be retained, the Division Bench held that when  it  is  found  that
the appellants are school cadre teachers, they would have not any  right  to
remain in two institutes which have now conferred the  status  of  colleges.
They can, therefore, always be transferred to school cadres.


14.    Hence,  the  present  appeals  by  special  leave  by  the  aggrieved
teachers.



15.   We have heard Mr. A Sharan, learned senior counsel appearing  for  the
appellants, Ms. Monika Arora, learned counsel appearing  for  the  appellant
in one set of appeals and Mr. Suresh Ajay Gupta and Mr. Praveen  Chaturvedi,
learned counsel appearing for the State and respondents  respectively.    We
have also perused the impugned judgment  passed  by  the  High  Court.   The
admitted facts are that the appellant No.1 Gurdas Singh possessed  requisite
qualifications  i.e.  Shastri,  Acharya  and   M.A.   (Sanskrit)   and   was
transferred from NJSA College, Kapurthala on  18th  August,  1989.   He  has
been serving in the respondent Institute for the last 26 years.   Similarly,
appellant No.2 Sitar Mohammad  possesses  qualification  of  M.A.,  Punjabi,
Gyani (Hons in Punjabi).  He was transferred from Government Middle  School,
9 Kala Patiala to the respondent Institute in August, 1979.  He  worked  for
about 27 years 5 months and retired in December, 2007.   Similarly,  Subhash
Chander, appellant having requisite  qualifications  of  Prabhakar  Shastri,
M.A. (Sanskrit), was transferred from Government  Senior  Secondary  School,
Patiala in 1990 and have been working there for the last 25  years.   It  is
also not in dispute that the appellants have been teaching to  the  students
in the college.







16.    From  perusal  of  the  letter  issued  by  the  Punjab   University,
Chandigarh  dated  27.6.1965  addressed  to  the  Principal   of   all   the
Institutions affiliated  with  the  University  inviting  attention  to  the
office circular dated 27.11.1963, it is clear that the  decision  was  taken
at the meeting of the syndicate held on 19.10.1963 laying down  the  minimum
qualifications for both the teaching staffs of the affiliated  Institutions.
 It was further decided by  the  University  that  those  teachers  who  are
confirmed hands and over 40 years of age will be approved on  the  basis  of
their long teaching experience etc. even if they do not exactly fulfill  the
qualification.







17.   As noticed above, the appellants have been working  for  the  last  25
years in the respondent  Institutions  and  teaching  the  students  of  the
college.  The reason given by the High Court is  that  for  the  purpose  of
claiming  pay-scale  at  par  with  the  college   teachers,   the   minimum
requirement is that one has to clear the State Level  Eligibility  Test.  In
our view, that condition will not apply so far the appellants are  concerned
as because on the date when they  were  appointed  and  transferred  to  the
college there was no requirement  for  having  the  qualification  of  State
Level Eligibility Test.  The qualification of the  candidate  is  considered
at the time of appointment and not after rendering 25 years  of  service  in
the college.





18.   The submission of the State counsel is  that  the  appellant  is  only
Acharya and, therefore, he can only get  the  benefit  of  merger.   We  are
unable to accept the submission made by the learned counsel.   Further,  the
High Court is not correct in holding  that  merely  because  the  appellants
have higher qualifications would not mean  that  they  automatically  become
entitled to the pay-scale of higher post than the post to  which  they  were
appointed.  The ratio decided in the case of  State  of  Haryana  vs.  Kamal
Shahrawat will not apply in the facts of the present  case  for  the  simple
reason that the appellants have been serving in the college  as  a  lecturer
for the last 25 years.







19.   After giving our anxious consideration in the matter, we  are  of  the
view that in the special facts and circumstances of the  present  case,  the
appellants are entitled to get the                  pay-scale  at  par  with
the  teachers  of  the  respondent  college  inasmuch  as  they  have   been
discharging the same duties and also possessing the required  qualification.
 However, this order will not create a precedent.







20.   The appeals are accordingly allowed with no order as to costs.


                                                                  ……………………J.
                                                                (M.Y. Eqbal)



                                                                  ……………………J.
                                                               (C. Nagappan)
New Delhi
September 01, 2015

Admittedly, the Government has given opportunity to those Doctors, who had got one specialization more than three years back and they are senior to the appellants. The High Court also took note of the fact that there is a huge deficiency of Doctors in the State and the Government is contemplating of opening of new super-specialty hospitals by the year 2015-16. 14. From perusal of the relevant Rule, it is evident that the placement of the Doctors shall be at the discretion of the Government. Merely because the appellants were allowed in the examination and found place in the select list does not give them right as in-house Doctors to get priority above their seniors. 15. In the peculiar facts and circumstances of the case, we do not find any reason to interfere with the impugned order. However, we record the assurance given by Mr. Bandopadhyay that the appellants will be given sponsorship for the next year 2016-17.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                     CIVIL APPEAL Nos.6689-6690 OF 2015
             (Arising out of S.L.P.(Civil) Nos.14244-45 of 2015)


Dr. Tapas Kumar Mandal
and others etc.                                  …..Appellant(s)

                                   versus

State of West Bengal and others             ..Respondent(s)


                                  JUDGMENT

M. Y. EQBAL, J.



Leave granted.

2.    These appeals by special leave are directed against the  Judgment  and
order dated 17.04.2015 passed by  the  Division   Bench  of  High  Court  of
Calcutta in A.S.T. Nos. 51 &  52  of  2015  dismissing  the  writ  petitions
preferred  by  the  appellants  against  the  order  of  the   West   Bengal
Administrative Tribunal refusing to pass an interim  order  and  fixing  the
matter for final hearing.

3.     The  facts  of  the  case  in  brief  are  that  the  appellants-writ
petitioners,  who are all Doctors serving under  the  Department  of  Health
and Family Welfare, Government of West Bengal, had obtained M.B.B.S.  Degree
and were issued Registration  Certificates  from  the  West  Bengal  Medical
Council in different years. All of them are permanent  employees  under  the
Department of Health and Family Welfare, Government of West  Bengal,  having
joined their services mostly before 2008. It is appellants’  case  that  the
West Bengal University of Health Sciences  published  an  Advertisement  for
the West Bengal Post Graduate Medical Admission Test  for  the  years  2011-
2012. They all got rank in the test of 2011 or  in  the  test  of  2012  and
after counselling, all of them were admitted to  different  Diploma  courses
and they all completed their courses in the year 2014 with  Trainee  Reserve
Facility  (T.R.  Facility)  following  the  West  Bengal  Medical  Education
Service, the West Bengal Health Service and the West Bengal  Public  Health-
cum- Administrative Service (Placement on Trainee Reserve) Rules,  2008  (in
short, “T. R. Rules of 2008”), which enabled  them  to  study  in  the  said
courses as applicable to in-service candidates. Such T. R.  facilities  were
allowed by the Government vide different memos issued from time to time.

4.     It has been pleaded on  behalf  of  the  appellants  that  they  have
availed two years’ T.R. Facilities on completion of their courses  and  that
they had also availed T. R. facilities to which they were  entitled  to  get
and all of them had obtained such facility in the year 2012, which  came  to
be completed in the year  2014,  just  after  completion  of  their  Diploma
courses.  Further on completion of their Post Graduate  Diploma  Courses  in
the year 2014, their results were duly published and all of them passed  the
examinations and joined duty. Some of them were posted at  different  Health
Centres while others at different Hospitals, but all of them had passed  the
Diploma courses with good marks.
5.    The West Bengal University of Health Sciences issued an  Advertisement
on 12.12.2014 pertaining to the West Bengal Post Graduate Medical  Admission
Test, 2015. They also published  the  Rules  and  Regulations  of  the  said
Admission Test.  The writ petitioners submitted  their  formal  applications
before the concerned authorities so as to enable them to appear in the  said
2015 Tests.   It has been contended by the appellants  that  they  were  all
eligible and the process of allowing in-service Doctors to  take  the  Tests
was being followed by  the  concerned  Department  for  several  years  and,
therefore, the appellants submitted Proforma  of  Sponsorship  Certificates,
which were duly accepted by the concerned authorities.  The appellants  then
applied for the West Bengal Post Graduate Medical Admission  Test,  2015  by
submitting  necessary  documents  along  with  the  necessary  fees  in  the
category  of  Government  Sponsored  Candidates.  The  authorities  of   the
Department of Health and Family Welfare,  Government  of  West  Bengal  then
allowed them to appear and the University of Health Sciences  also  accepted
their Application  Forms  on-line  and  subsequently,  the  appellants  also
submitted hardcopies of such Applications within the specified time.

6.    In February, 2015, Written Test for the 2015 Tests was held  in  which
appellants appeared and in the results, which were published  on  11.2.2015,
appellants got comfortable ranks and top positions.  As  pleaded  on  behalf
of the appellants, on  17.03.2015  a  List  was  published  in  the  website
informing, inter alia, that the persons mentioned therein had qualified  for
acquiring Sponsorship Certificates for  the  W.B.P.G.M.A.T.  2015  and  they
were  instructed  to  go  to  the  concerned  Office   and   collect   their
certificates personally. Hence, it is contended by the appellants that  they
were found eligible for being given Sponsorship Certificates.   However,  on
20.3.2015, the authorities published yet another  Notice  in  their  website
giving out the names of  223  candidates  giving  similar  instructions  for
personally collecting the Sponsorship Certificates.   But  in  this  Notice,
the names of the present appellants were dropped  out.  Upon  enquiry,  they
came to learn that the authorities had taken a decision that they would  not
allow candidates, who had passed Diploma within the last three years and  as
such their names had been dropped.   Being aggrieved, the appellants sent  a
Letter of Demand for justice as well  as  Objection  against  such  act  and
prayed for modifying their stand  of  not  allowing  such  persons  who  had
passed Diploma within the last three years.  According  to  the  appellants,
this was a condition, which was  de  hors  the  provisions  of  the  Trainee
Reserve Rules of 2008.

7.  The names of the appellants were again not published in  another  Notice
dated 23.03.2015, whereby the authorities allowed several Doctors,  who  had
completed their Post Graduate Diploma prior  to  2012  and  before  entering
service and, according to the appellants, even the candidates, who  had  not
completed 2/3 years rural service, which was compulsory as  per  the  Rules,
were allowed.   It has been alleged on behalf of the appellants  that  these
Doctors had several relatives/cousins/nephews in the higher echelons of  the
Government and, therefore, the action was motivated and mala fide.
8.    It has been further pleaded by the appellants that by  a  Notification
dated 24.03.2015, the Joint Secretary to  the  Government  of  West  Bengal,
Department of Health and  Family  Welfare  informed,  inter  alia,  that  in
exercise of powers conferred under Clause 9 of said T.  R.  Rules  of  2008,
those Medical Officers, who had acquired  Post  Graduate  Diploma/Degree  on
availing facilities within the last three  years  (1.4.2012  to  31.3.2015),
would not be allowed  further  T.  R.  facility  during  this  year  (2015).
According to the appellants, this order is illegal, arbitrary  and  proceeds
to debar the appellants  purportedly  on  a  ground,  which  is  beyond  the
grounds mentioned in the Rules.  According to them,  despite  being  toppers
of the merit list they could not participate in the counselling session.
9.    Aggrieved appellants,  therefore,  immediately  approached  the  First
Bench  of  the  West  Bengal  Administrative  Tribunal   (in   short,   “the
Tribunal”), which dismissed their petition on the ground that  Clause  9  of
the T.R. Rules of 2008 had a non-obstante Clause whereby the Government  had
a discretionary power in matters  regarding  placement  of  Trainee  Reserve
candidates and that no  interim  orders  could  be  passed  at  that  stage.
Appellants, thereafter, knocked the doors of the High Court by  filing  writ
petitions, which were dismissed by  the  Division  Bench  holding  that  the
discretion that has been exercised in the instant case does not suffer  from
any irregularity and it is based on logic, equality  and  on  public  policy
since Rule 9 of the aforesaid  Rules  clearly  lays  down  that  “placement”
shall be at the discretion of the Government. Thus,  even  if  a  Doctor  is
eligible for further Government Sponsorship, he cannot claim,  as  a  matter
of right, that such sponsorship be given to him consecutively and  in  short
intervals by not considering others, who are in queue for a period prior  to
1.4.2012.

10.   Hence, the aggrieved Doctors are before us by way of these appeals  by
special leave.  We have heard learned counsel for the parties at length  and
perused the concerned Rules.

11.    Mr.  Huzefa  Ahmadi,  learned  senior  counsel  appearing   for   the
appellants, mainly contended that only after the appellants  were  selected,
the Notification was  published  on  24.3.2015  indicating  that  in-service
candidates who had obtained diploma in the  years  2012-2014  would  not  be
considered for the degree course and only pre-2012 diploma holders would  be
considered.  According to the learned senior counsel, there is no  rationale
for this discrimination particularly when one  of  the  appellants  all  the
three times finally ranked in the merit list for the degree course.  It  was
contended that at the time of filling of the form for the degree course  the
eligibility criteria did not specify  that  only  pre-2012  diploma  holders
will be considered as candidates for the degree  course.   As  a  matter  of
fact, the selection procedure was arbitrarily changed after  the  appellants
were selected and called for giving  sponsorship  certificate.   Mr.  Ahmadi
also referred to some decisions to  the  proposition  that  inter  se  merit
cannot be overlooked to promote seniority which has  no  place  in  the  MCI
Regulations.

12.     Per  contra,  Mr.  Kalyan  Bandopadhyay,  learned   senior   counsel
appearing for the respondents, at the very outset fairly submitted  that  he
has nothing to say so far the merits of the appellants are  concerned.   But
the action taken by  the  respondents  cannot  be  held  to  be  mala  fide.
Indisputably, appellants got the benefit of three years of service.   It  is
not the case of admission in the open category.

13.   Perusal of the impugned order passed by the High Court will  show  the
reasons assigned for giving priority to those  Doctors  who  have  completed
their  diploma  courses  much  before  the  appellants.    Admittedly,   the
Government  has  given  opportunity  to  those  Doctors,  who  had  got  one
specialization more than three  years  back  and  they  are  senior  to  the
appellants.  The High Court also took note of the fact that there is a  huge
deficiency of Doctors in the State and the Government  is  contemplating  of
opening of new super-specialty hospitals by the year 2015-16.
14.   From perusal of the relevant Rule, it is evident  that  the  placement
of the Doctors shall  be  at  the  discretion  of  the  Government.   Merely
because the appellants were allowed in the examination and  found  place  in
the select list does  not  give  them  right  as  in-house  Doctors  to  get
priority above their seniors.
15.   In the peculiar facts and circumstances of the case, we  do  not  find
any reason to interfere with the impugned order.   However,  we  record  the
assurance given by Mr.  Bandopadhyay  that  the  appellants  will  be  given
sponsorship for the next year 2016-17.

16.   For the aforesaid reason, we dismiss these  appeals.   However,  there
shall be no order as to costs.

                                                                  ……………………J.
                                                                (M.Y. Eqbal)


                                                                  ……………………J.
                                                               (C. Nagappan)
New Delhi
September 01, 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