MS. X versus THE STATE OF MAHARASHTRA AND ANOTHER
[2023] 2 S.C.R. 1112, Supreme Court of India, 2023
Outcome: Disposed off
Segment: Ratio
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SUPREME COURT REPORTS
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MS. X
v.
THE STATE OF MAHARASHTRA AND ANOTHER
(Criminal Appeals Nos. 822-823 of 2023)
MARCH 17, 2023
[A. S. BOPANNA AND HIMA KOHLI, JJ.]
Code of Criminal Procedure, 1973 – ss. 437,438 and 439 –
Penal Code, 1860 – ss. 354,354-B, 376 and 506 – Anticipatory
bail – Cancellation of – A complaint filed by the appellant-
prosecutrix, against the respondent No.2-accused, who lured her
under the garb of offering some modelling assignments, raped her
in a hotel room where she was staying – Initially, the FIR was
registered u/ss. 354, 354-B and 506 of the IPC, and later, on the
supplementary statement of the appellant being recorded, the offence
u/s.376 was added to the FIR – The High Court granted anticipatory
bail to the respondent No. 2 on the grounds that the appellant had
improved her statement – On appeal, held: The nature and gravity
of the alleged offence and the financial stature, position and
standing of the accused vis-à-vis the appellant was disregarded
and ignored by the High Court – There was sufficient material in
the FIR that would prima facie attract the provision of s. 376, IPC –
Despite the appellant having filed an application for intervention
in the petition for anticipatory bail moved by the Respondent No.2
before the High Court, she was not afforded a hearing – There is
no other witness except for the appellant herself, High Court should
have granted opportunity of hearing – Grant of anticipatory bail
cannot be sustained – Order of the High Court quashed and set
aside.
Disposing of the appeals, the Court
Held: 1. The nature and gravity of the alleged offence has
been disregarded. So has the financial stature, position and
standing of the accused vis-à-vis the appellant/prosecutrix been
ignored. The High Court has granted anticipatory bail in favour
of the respondent No. 2/accused in a brief order of three
paragraphs, having been swayed by the “star variations in the
narration of the prosecutrix” implying thereby that what was
[2023] 2 S.C.R. 1112
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originally recorded in the FIR, did not make out an offence of
rape, as defined in Section 375 IPC, which is an erroneous
assumption. Even if the first Supplementary statement of the
appellant/prosecutrix recorded in the evening hours of 6th August,
2022, the date on which the FIR had been registered against the
respondent No.2/accused in the first half of the same day, her
second Supplementary statement recorded on 6th September,
2022 and the Medico-Legal Report of the doctor who had
examined the appellant/prosecutrix on 8th August, 2022, are kept
aside for a moment, this Court finds that there was still sufficient
material in the FIR that would prima facie attract the provision of
Section 376, IPC. In this Court’s opinion, these factors ought to
have dissuaded the High Court from exercising its discretion in
favour of the respondent No.2/accused for granting him
anticipatory bail. [Para 22][1131-E-G; 1132-A-B]
2. Another reason that has weighed with this Court for
interfering in the impugned orders is that despite the appellant/
prosecutrix having filed an application for intervention in the
petition for anticipatory bail moved by the respondent No.2/
accused before the High Court, she was not afforded a hearing.
At least a perusal of the second impugned order does not reflect
the said position. No doubt, the State was present and was
represented in the said proceedings, but the right of the
prosecutrix could not have been whittled down for this reason
alone. In a crime of this nature where ordinarily, there is no other
witness except for the prosecutrix herself, it was all the more
incumbent for the High Court to have lent its ear to the appellant.
Such an approach tantamounts to failure to recognize the right of
the prosecutrix to participate in the criminal proceedings that
would include a right to oppose the application for anticipatory
bail moved by the accused. The appellant/prosecutrix having been
denied a meaningful hearing when the first impugned order of
anticipatory bail granted in favour of the respondent No. 2/accused
was confirmed by the second impugned order, is an additional
factor that has prevailed with this Court to interfere in the
impugned orders. [Paras 23, 25][1132-B-D; 1133-F-G]
MS. X v. THE STATE OF MAHARASHTRA AND ANOTHER
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Sushila Aggarwal and Others v. State (NCT of Delhi)
and Another (2020) 5 SCC 1 : [2020] 2 SCR 1 –
followed.
Prasanta Kumar Sarkar v. Ashis Chatterjee And Another
(2010) 14 SCC 496 : [2010] 12 SCR 1165; Masroor v.
State of Uttar Pradesh and Another (2009) 14 SCC
286 : [2009] 6 SCR 1030; Kalyan Chandra Sarkar v.
Rajesh Ranjan Alias Pappu Yadav and Another (2004)
7 SCC 528; Myakala Dharmarajam and Others v. State
of Telangana and Another (2020) 2 SCC 743; Pradeep
Ram v. State of Jharkhand and Another (2019) 17 SCC
326 : [2019] 8 SCR 824 – relied on.
State of U.P. through CBI v. Amarmani Tripathi (2005)
8 SCC 21 : [2005] 3 Suppl. SCR 454; Prahlad Singh
Bhat v. NCT, Delhi and Another (2001) 4 SCC 280 :
[2001] 2 SCR 684; Ram Govind Upadhyay v.
Sudarshan Singh and Others (2009) 14 SCC 286 :
[2009] 6 SCR 1030; State of Maharashtra v. Ritesh
(2001) 4 SCC 224 : [2001] 2 SCR 438; Panchanan
Mishra v. Digambar Mishra and Others (2005) 3 SCC
143 : [2005] 1 SCR 484; Vijay Kumar v. Narendra and
Others (2002) 9 SCC 364; Anwari Begum v. Sher
Mohammad and Another (2005) 7 SCC 326 : [2005] 3
Suppl. SCR 287; Neeru Yadav v. State of Uttar Pradesh
And Another (2014) 16 SCC 508 : [2014] 12 SCR 453;
Anil Kumar Yadav v. State (NCT Of Delhi) And Another
(2018) 12 SCC 129 : [2017] 11 SCR 195; Mahipal v
Rajesh Kumar Alias Polia and Another (2020) 2 SCC
118 : [2019] 14 SCR 529; Supreme Bhiwandi Wada
Manor Infrastructure Private Limited v. State
of
Maharashtra And Another (2021) 8 SCC 753; Jagjeet
Singh And Others v. Ashish Mishra Alias Monu And
Another (2022) 9 SCC 321 – referred to.
Case Law Reference
[2010] 12 SCR 1165
relied on
Para 8
[2009] 6 SCR 1030
relied on
Para 13
[2005] 3 Suppl. SCR 454
referred to
Para 12
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[2001] 2 SCR 684
referred to
Para 12
[2009] 6 SCR 1030
referred to
Para 12
[2001] 2 SCR 438
referred to
Para 12
[2005] 1 SCR 484
referred to
Para 13
[2005] 3 Suppl. SCR 287
referred to
Para 13
[2014] 12 SCR 453
referred to
Para 13
[2017] 11 SCR 195
referred to
Para 13
[2019] 14 SCR 529
referred to
Para 13
[2020] 2 SCR 1
followed
Para 15
[2019] 8 SCR 824
relied on
Para 19
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 822-823 of 2023.
From the Judgment and Order dated 21.09.2022 and 07.10.2022
of the High Court of Judicature at Bombay in ABA No. 2594 of 2022.
R. Basant, Sr. Adv., Subodh Kr. Pathak, Abhijeet Chatterjee,
Shahsi Ranjan, Pawan Kumar Sharma, Gautam Barua, Akash Swami,
Ravi P. Wadhwani, Advs. for the Appellant.
Sanjay K Hedge, Sr. Adv., Dharmendra Kumar Sinha, Akhilesh
Singh, Ms. Neetu Singh, Arun Adhlakha, Nitin Lonkar, Siddharth
Dharmadhikari, Aaditya Aniruddha Pande, Bharat Bagla, Amit Singh,
Lokesh Dutt Sharma, Advs. for the Respondents.
The Judgment of the Court was delivered by
HIMA KOHLI, J.
1. Leave granted.
2. The appellant/prosecutrix, who claims to have been exposed to
the horrors of the notorious casting couch syndrome, at the hands of the
respondent No.2/accused herein, is aggrieved by the orders dated
21st September, 20221 and 07th October, 20222, passed by the High Court
of Judicature at Bombay in exercise of its Criminal Appellate jurisdiction
1 First Impugned Order:
2 Second Impugned Order
MS. X v. THE STATE OF
MAHARASHTRA AND ANOTHER
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allowing the anticipatory bail application3 filed by the respondent No.
2/accused in connection with FIR4 filed by her with the MIDC Police
Station, Mumbai. Initially, the FIR was registered under Sections 354,
354-B and 506 of the Indian Penal Code5. Subsequently, on the
supplementary statement of the appellant/prosecutrix being recorded,
offence under Section 376 was added to the subject FIR. By the first
impugned order, the High Court granted pre-arrest bail to the respondent
No. 2/accused as an interim measure subject to certain conditions and
on 7th October 2022, confirmed the said order.
FACTS OF THE CASE
3. The facts of the case as are relevant for deciding the present
appeals are briefly stated:-
3.1 The appellant/prosecutrix is a Model by profession. She filed
a complaint with P.S. MIDC, Mumbai against the respondent No.
2/accused in the late hours of 5th August, 2022, when she dialled ‘100’ to
call the police alleging that the respondent No.2/accused, a businessman,
who lured her under the garb of offering her some modelling assignments
and then forced himself upon her and raped her in a hotel room where
she was staying.
3.2 The relevant portion of the appellant’s statement recorded in
the early hours of 06th August, 2022 at the MIDC Police Station, Mumbai
is extracted hereinbelow :-
“……Thereafter we discussed about our work, thereafter Jignesh
told me that he wants to talk with me some personal therefore
he
told me to go in room. Then as Jignesh is going to give me job
therefore at about 11.15 pm in the night I took him in the hotel
room. Then I asked him water but he refused. Then he told me
that, “xxx tu jo field me kaam kart i hai, wo field me to tumhe
pata hai kya kya karna padta hai” (xxx you know that, what
things needs to do in the field you are working), at that time I told
him to speak clearly. Then he told me that, “xxx kuchh pane ke
liye kuchh khona padata hai” (xxx one has to sacrifice
something to get something). At that time I told him, that I have
cleared you about the same on very first day. At that time he told
3 Anticipatory Bail Application No. 2594 of 2022
4 CR FIR No. 915 of 2022 registered on 06th August, 2022
5 For short ‘the IPC’
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me that, you have to compromise with me, I have good contacts.
At that time I clearly refused him. Thereafter he got up from
bed and pushed me on bed and he touched my breast and
backside. Then I started shouting and then he held my neck and
threatened to kill me and then he opened his shirt buttons and he
tried to open my clothes. In between my maxi was torn near the
neck and breast and then he took out his private part with his
hand and he started doing intimacy with me and then I pushed
him forcibly and went out from the room and then I got down to
the reception from staircase and called the police on 100 number’’
3.3 Thereafter, in the evening of 06th August, 2022 itself, a
supplementary statement of the appellant/prosecutrix was recorded,
relevant portion whereof is as under :-
“……Then he got up from the bed and pushed me on the bed by
pushing me hard. This time he touched my chest and my rear and
lifted my dress which I was wearing. As I screamed and begged
him not to do this to me, he grabbed me by the throat and threatened
to kill me. At that time my whole body was shivering, I was
completely scared, I had no idea. He then unbuttoned his shirt,
removed his pants and tried to remove my clothes. There was a
tussle between us and my maxi was torn near my neck and near
my chest. During the tussle, he pulled my knicker down and pulled
out his private part with his hand and tried to insert in my private
part. Then I pushed him hard and I opened the
door and ran outside,
then he told, “if you say something about this by going outside
then I will kill you and your family.” He was giving such threat
then also I came out from the room……”
3.4 It is the case of the appellant/prosecutrix that to favour the
respondent No. 2/accused, the police had intentionally removed a vital
portion of her statement while recording the FIR and had only mentioned
the offences under Sections 354, 354-B and 506 IPC; that the police
deliberately did not take the appellant/prosecutrix for a medical
examination even on her alleging commission of rape by the respondent
No.2/accused; that though the police came to the Hotel on a call being
made by the appellant/prosecutrix at around 11:00 p.m. on 5th August,
2022 and had taken her and the respondent No. 2/accused to the Police
Station, she was made to wait from 11:30 p.m. till 05:00 a.m. on 6th
August, 2022 and during that period, she was being constantly pressurized
MS. X v. THE STATE OF MAHARASHTRA AND ANOTHER
[HIMA KOHLI, J.]
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[2023] 2 S.C.R.
to settle the matter with the respondent No. 2/accused; that when the
appellant/prosecutrix did not agree for any settlement, the police was
compelled to register the FIR but even then, they had watered down the
offences to favour the respondent No. 2/accused.
SEQUENCE OF EVENTS :
4. On 6th August, 2022 itself, at noon time, the police produced the
respondent No. 2/accused before the Court of the Additional Chief
Metropolitan Magistrate6, XXII Court, Andheri, Mumbai and sought his
judicial custody which was allowed by the learned ACMM upto
20th August, 2022. Contemporaneously, the respondent No.2/accused
filed an application for bail7 in the Court of the learned ACMM which
was opposed by the Additional Public Prosecutor appearing for the State
on the ground that the offence is non- bailable; the statement of the
prosecutrix was yet to be recorded under S. 164 of the Code of Criminal
Procedure8, the investigation was still in progress; and if released, the
respondent No.2/accused may tamper with the evidence. However, the
said application was allowed by the learned ACMM vide order dated
06th August, 2022.
5. Aggrieved by the casual approach allegedly adopted by the
investigating team, the appellant/prosecutrix approached the Deputy
Commissioner of Police of the area, which as per her, activated the
police and on 7th August, 2022, they called her for recording her further
statement. Based on the said statement, the
offence under Section 376
IPC was added in the FIR . Thus, the FIR was registered under Sections
376, 354, 354-B, 506 and 506(2), IPC. On the same day, the investigating
officer addressed a letter to the appellant/prosecutrix requesting her to
present herself for her medical examination on 8th August, 2022.
Accompanied by a lady Police Officer the appellant/prosecutrix was
taken to the Municipal Corporation of Greater Mumbai Hospital on
08th August, 2022 where the doctor conducted her medical examination
and recorded the following :-
“As per history given by the survivor 25 yrs. Female were at
hotel Silver INN at Marol Andheri West. Survivor met Jignesh
Mehta 48 yrs. Male around time 11.15 pm. 5.8.2022.
6 For short ‘ACMM’
7 Bail Application No.2279/BA/2022
8 For short ‘CrPC’.
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Jignesh touched survivor on her private parts, breast,
abdomen he held survivor’s neck and threatened that he
will kill her removed own clothes and survivor’s clothes
forcefully and inserted his genitalia penis in the vulvo once.
After that survivor pushed Jignesh and ran away from room.
There was history of sexual assault physical assault verbal
assault….”
5.1. Dissatisfied with the manner in which the Investigating Officer
was conducting the investigation, the appellant/prosecutrix states that
she submitted an application dated 10.08.2022 to the Additional
Commissioner of Police, West Region imploring him to ensure that the
investigation is carried out properly and the respondent No. 2/accused is
arrested.
5.2. On 10th August, 2022, the police moved an application before
the learned ACMM for cancellation of the bail granted to the respondent
No. 2/accused having regard to the fact that the provision of Section
376 IPC has been added to the subject FIR vide application dated 8th
August, 2022. The said application was allowed and vide order dated
23rd August, 2022, the learned ACMM cancelled the bail granted to the
respondent/accused on 6th April, 2022.
5.3. On 06th September, 2022, the Supplementary Statement of
the appellant/prosecutrix was recorded by the police wherein she stated
as follows :-
“…..I straightaway refused to oblige him but he got up from the
bed and forcefully pushed me onto the bed. He touched my chest
and posterior inappropriately
and pulled up posterior the gown
worn by me. I screamed and requested him to not to do such
things with me but he held me by my neck and threatened to kill
me. At that time out of grave fear I was completely petrified and
was unable to think anything. Thereafter he removed his shirt
buttons, removed his pants and tried to disrobe me. In the
ensuing scuffle my gown tore near my neck and breasts.
During the struggle he pulled down my nickers, pulled out
his member and penetrated it inside my private part…….”
5.4. On 17th September, 2022, the respondent No.2/accused filed
an application9 under Section 438 Cr.P.C. seeking anticipatory bail in
9 Anticipatory Bail Application No. 1367 of 2022
MS. X v. THE STATE OF MAHARASHTRA AND ANOTHER
[HIMA KOHLI, J.]
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respect of the subject FIR before the court of the Learned Additional
Sessions Judge, Borivali Division, Dindoshi (Borivali Division), Goregoan,
Mumbai. After noting the submissions made by the respondent No.2/
accused, counsel for the State and counsel for the appellant/prosecutrix
who had moved an intervention application in the matter, the learned
Additional Sessions Judge rejected the anticipatory bail application of
the respondent No. 2/accused with the following observations :-
“12 It is pertinent to note that in the application filed under section
438 of Cr.P.C. the applicant has averred several facts which appear
to be aptly unusual and strange. Though the applicant has
contended that he is the victim of honey-trap which was arranged
by the victim with her friends, in Para. No. 8 of the application the
applicant has contended that he is lifetime member of the Club
Emerald, where he used to go for recreation and fitness. In Para.
No. 14 of the application whatever is stated prima-facie does not
appear to be acceptable in ordinary human behavioral pattern.
Despite the applicant is claiming himself to be reputed businessman
who used to visit the Club as lifetime member, he has stated in
Para. No. 14 that in the said room of the hotel he was invited by
the prosecutrix and she started kissing him on his neck and cheek
and even rubbing her hand on the body of the applicant and when
the applicant stopped her,
prosecutrix became more aggressive
and suddenly demanded Rs. 15,00,000/- from the applicant.
13. Considering the grounds set up in the application, it is apparent
that the applicant has not disputed that at the time of the incident,
he was with the victim in the room of the said hotel. Even if the
contents in the supplementary statement are overlooked, averments
in the FIR prima-facie made out the case under section 376 of
IPC. I am, therefore of the view that, in view of the gravity of the
offence and nature of punishment in the light of aforesaid
allegations, no prima-facie case is made out by the applicant for
granting bail under section 438 of Cr.P.C…..”
IMPUGNED ORDERS:
6. The respondent No. 2/accused then approached the High Court
seeking anticipatory bail10. By the first impugned order dated
10 Anticipatory Bail Application No. 2594 of 2022
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21st September, 2022, interim protection was granted to the respondent
No. 2/accused with the following order :-
“1. Heard Iearned counsel for the applicant and learned A.P.P.
for the State.
2. On 06/08/2022, C.R.No.915 of 2022 came to be registered
with MIDC Police Station, on the complaint filed by the prosecutrix,
who is a model by profession and she reported to the police station
that her modesty was outraged by the applicant. This resulted in
invocation of Sections 354, 354-B, 506 IPC.
On the very same day, i.e. on 06/10/2022, the prosecutrix
got her supplementary statement recorded and this time, she
elaborated the incident by taking it further and stated that after
inappropriately touching her, she was pushed on the bed and an
attempt was made to commit forcible sexual intercourse. In the
scuffle that took place, she alleged that her apparel, which she
was wearing was torn and she pushed him out of the door, but
while leaving the room, he threatened her that she should not
disclose the incident to any one. She came to reception and made
a phone call.
After one month i.e. on 06/09/2022, there is further
improvement in the version of the prosecutrix, where she states
that there was penetrative sexual assault and the other narration
that she pushed him and rang the reception remain same.
3. The applicant was released on bail on an earlier occasion, when
the subject C.R. invoked Sections 354, 354-B and 506 of I.P.C.,
but on the supplementary statement
being recorded, Section 376
has been added to the subject C.R. and the applicant is
apprehending his arrest, since the earlier order operating in his
favour, has been cancelled. Looking to the star variations in
the narration of the prosecutrix, without judging it’s
truthfulness, at this stage, these variations itself persuade
me to protect the applicant by way of an interim order.
Subject to his co- operation in the investigation and the material
that would come up before the Investigating Officer, further course
of action as to whether his custodial interrogation is necessary,
would be ascertained. Hence, the following order:
MS. X v. THE STATE OF MAHARASHTRA AND ANOTHER
[HIMA KOHLI, J.]
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:ORDER:
(a) In the event of arrest in connection with C.R.No.915 of 2022
registered with MIDC Police Station, applicant-Jignesh
Jashwantrai Mehta shall be released on bail on furnishing P.R.
Bond to the extent of Rs.25,000/- with one or two sureties in the
like amount.
(b) The applicant shall report to the concerned police station from
27th to 30th September, 2022 between 2.00 p.m. to, 5.00 p.m.
(c) The applicant shall not directly or indirectly make any
inducement, threat or promise to any person acquainted with the
facts of the case so as to dissuade him from disclosing the facts
to Court or any Police Officer and shall not tamper with evidence.
List the application on 07/10/2022.”
6.1. On coming to know of the passing of the aforesaid order, the
appellant/prosecutrix filed an application for intervention11 before the
High Court. By the second impugned order dated 7th October 2022, the
Bail application moved by the respondent No.2/accused was allowed
with the following order :-
“2. Considering the improvement in the version of the prosecutrix
and that too coming after a period of more than one month, the
applicant was protected by interim order he was directed to report
to the Investigating Officer. Accordingly, he has reported to the
Investigating Officer, his medical is conducted and the mobile
phone is seized.
3. In the wake of the above, since the applicant has rendered his
co- operation in the investigation,
order dated 21/09/2022 is made
absolute.”
7. Aggrieved by the aforesaid two orders, the appellant/prosecutrix
has preferred the present appeals wherein notice was issued on 18th
November, 2022. Appearance was entered on behalf of the respondent
No. 1 – State and the respondent No. 2/accused before the next date of
hearing and time was granted to file counter affidavits. Counter affidavits
have been filed by the counsel for the respondent No. 1/State and the
respondent No. 2/accused.
11 Intervention Application No.17150 of 2022 in Anticipatory Bail Application
No.2594 of 2022 dated 06.10.2022
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ARGUMENTS ADVANCED BY THE LEARNED
COUNSEL FOR THE PARTIES:
A. COUNSEL FOR THE APPELLANT/PROSECUTRIX
8. Mr. R. Basant, learned Senior Counsel appearing on behalf of
the appellant/ prosecutrix has urged that while granting anticipatory bail,
the High Court has failed to take notice of the nature and gravity of the
allegations levelled against the respondent No.2/accused; that while
making the observation in the first impugned order that “star variations
in the narration of the prosecutrix, …….itself persuade me to protect
the applicant by way of an interim order”, the High Court failed to
appreciate that the allegations recorded in the FIR itself were sufficient
to demonstrate commission of offence under Section 376 IPC; that the
High Court ignored the observations made by the learned Additional
Sessions Judge, Borivalli in the order dated 17th September, 2022, while
rejecting the anticipatory bail application of the respondent No.2/accused
to the effect that even if the contents in the supplementary statements
are overlooked, the averments made in the FIR prima facie make out a
case under Section 376 IPC; that despite an intervention application12
filed by the appellant/prosecutrix in the application for anticipatory bail13
filed by the respondent No. 2/accused before the High Court, she was
not granted a hearing; that the order granting anticipatory bail to the
respondent no. 2/accused falls foul of the settled legal principles required
to be followed by
the Court while considering an application for bail, as
has been spelt out by this Court in several judicial verdicts including
Prasanta Kumar Sarkar v. Ashis Chatterjee And Another14; that the
High Court ignored the fact that the respondent No. 2/accused is a
wealthy and influential businessman who used his influence to delay
registration of the FIR and having been granted anticipatory bail, is bound
to influence the witnesses to the detriment of the appellant/prosecutrix.
B. COUNSEL FOR THE RESPONDENT NO. 2/ACCUSED
9. On the other hand, Mr. Sanjay R Hegde, learned Senior Counsel
appearing on behalf of the respondent no. 2/accused has defended the
impugned orders and submitted that after the first impugned order was
passed granting interim protection to the respondent No.2/accused, he
12 Intervention Application No. 17150 of 2022 in Anticipatory Bail Application
No. 2594 of 2022
13 ABA NO. 2594 of 2022
14 (2010) 14 SCC 496
MS. X v. THE STATE OF MAHARASHTRA AND ANOTHER
[HIMA KOHLI, J.]
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was called for investigation on several dates and had duly cooperated
and reported to the Police Station, as and when called; that he had been
attending the hearings before the learned ACMM, Andheri and the learned
Additional Sessions Judge, Borivalli on all occasions; that there is no eye
witness to the alleged incident; that the circumstantial evidence and the
medical report does not support the allegations levelled by the appellant/
prosecutrix against the respondent No.2/accused; that there is no
justification to interfere with the order granting anticipatory bail to the
accused, more so, when no supervening circumstances for cancellation
of bail have been pointed out by the appellant/prosecutrix or the counsel
for the State.
C. COUNSEL FOR THE STATE – RESPONDENT NO. 1
10. Mr. Nitin Lonkar, learned counsel for the State has informed
the Court that a charge-sheet15 in the instant case was filed before the
Sessions Court on 21st October, 2022 and 25 witnesses have been cited
by the prosecution out of which 12 are independent witnesses. The case
is now listed for arguments on charge on 27th July, 2023.
ANALYSIS, INTERPRETATION AND CASE LAWS:
11. We have heard learned counsel for the parties and perused
the records. As can be gathered from a perusal of the impugned order,
the primary ground that had persuaded the High Court to grant interim
protection to the respondent No. 2/accused is that the appellant/
prosecutrix
tried to improve her version of the incident from what was
first recorded in the FIR in the early hours of 06th August, 2022, by
levelling additional allegations in her first Supplementary Statement
recorded in the evening on the very same date and in the second
Supplementary Statement recorded after one month, on 06th September,
2022. In the words of the High Court, there were “star variations in
the narration of the prosecutrix….”. The aforesaid observation has
been reiterated in the second impugned order and noting the fact that
the respondent No.2/accused had reported to the investigating officer,
his medical examination had been conducted and the mobile phone had
been seized, the interim order passed earlier, was made absolute16.
11.1. We propose to take a quick look at the considerations that
ought to govern grant of anticipatory bail. There are a line of decisions
15 As sworn in Para 8 of counter affidavit filed by the Investigating Officer
16 Vide second impugned order dated 21st September, 2022
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of this court that have underscored the fact that while deciding an
application for bail, the court ought to refrain from undertaking a detailed
analysis of the evidence, the focus being on the prima facie issues
including consideration of some reasonable grounds that would go to
show if the accused has committed the offence or those facts that would
reflect on the seriousness of the offence. The self- imposed restraint on
delving deep into the analysis of the evidence at that stage is for valid
reasons, namely, to prevent any prejudice to the case set up by the
prosecution or the defence likely to be taken by the accused and to keep
all aspects of the matter open till the trial is concluded.
12. In Prasanta Kumar Sarkar’s case (supra), a Division Bench
of this Court had highlighted the factors that ought to be borne in mind
while considering the anticipatory bail application and had stated that :-
“9. We are of the opinion that the impugned order is clearly
unsustainable. It is trite that this Court does not, normally, interfere
with an order passed by the High Court granting or rejecting bail
to the accused. However, it is equally incumbent upon the High
Court to exercise its discretion judiciously, cautiously and strictly
in compliance with the basic principles laid down in a plethora of
decisions of this Court on the point. It is well settled that, among
other circumstances, the factors to be borne in mind while
considering an application for bail
are:
(i) whether there is any prima facie or reasonable ground to believe
that the accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on
bail;
(v) character, behaviour, means, position and standing of the
accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being influenced;
and
(viii) danger, of course, of justice being thwarted by grant of bail.
MS. X v. THE STATE OF MAHARASHTRA AND ANOTHER
[HIMA KOHLI, J.]
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[See State of U.P. through CBI v. Amarmani Tripathi17,
Prahlad Singh Bhati v. NCT, Delhi and Another18 and Ram
Govind Upadhyay v. Sudarshan Singh and Others19] “
13. In Masroor v. State of Uttar Pradesh And Another20,
speaking for the Division Bench, Justice D.K. Jain observed that courts
ought to refrain from mechanically granting bail and absence of relevant
considerations will make such an order susceptible to interference. Para
13 of the said order is relevant and is reproduced herein below :-
“13. ……Though at the stage of granting bail an elaborate
examination of evidence and detailed reasons touching the merit
of the case, which may prejudice the accused, should be avoided,
but there is a need to indicate in such order reasons for prima
facie concluding why bail was being granted particularly where
the accused is charged of having committed a serious offence.
(See also State of Maharashtra v. Ritesh21, Panchanan Mishra
v. Digambar Mishra And Others22, Vijay Kumar v. Narendra
and Others23 and Anwari Begum v. Sher Mohammad And
Another24)”
[Also refer : Neeru Yadav v. State of Uttar Pradesh And
Another25; Anil Kumar Yadav v. State (NCT Of Delhi) And
Another26 and Mahipal v Rajesh Kumar Alias Polia And
Another27]
14. Stressing on the necessity to look into the earlier orders where
the bail applications of the accused have been rejected, this Court in
Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav And
Another28 held thus :-
17 (2005) 8 SCC 21
18 (2001) 4 SCC 280
19 (2002) 3 SCC 598
20 (2009) 14 SCC 286
21 (2001) 4 SCC 224
22 (2005) 3 SCC 143
23 (2002) 9 SCC 364
24 (2005) 7 SCC 326
25 (2014) 16 SCC 508
26 (2018) 12 SCC 129
27 (2020) 2 SCC 118
28 (2004) 7 SCC 528
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“12. In regard to cases where earlier bail applications have been
rejected there is a further onus on the court to consider the
subsequent application for grant of bail by noticing the grounds on
which earlier bail applications have been rejected and after such
consideration if the court is of the opinion that bail has to be granted
then the said court will have to give specific reasons why in spite
of such earlier rejection the subsequent application for bail should
be granted.”
15. In Sushila Aggarwal and Others v. State (NCT of Delhi)
And Another29, a Constitution Bench comprising of five Judges was
confronted with conflicting views of different Benches of varying strength
on the following two questions framed for consideration :-
“(i) Whether the protection granted to a person under Section 438
CrPC should be limited to a fixed period so as to enable the person
to surrender before the trial court and seek regular bail.
(ii) Whether the life of an anticipatory bail should end at the time
and stage when the accused is summoned by the court.”
After an extensive discussion, the Constitution Bench distilled the
Law and answered the above reference in para 91 in the following
words:-
“91.1. Regarding Question 1, this Court holds that the protection
granted to a person under Section 438 CrPC should not invariably
be limited to a fixed period; it should enure in favour of the accused
without any restriction on time. Normal conditions under Section
437(3)
read with Section 438(2) should be imposed; if there are
specific facts or features in regard to any offence, it is open for
the court to impose any appropriate condition (including fixed nature
of relief, or its being tied to an event), etc.
91.2. As regards the second question referred to this Court, it is
held that the life or duration of an anticipatory bail order does not
end normally at the time and stage when the accused is summoned
by the court, or when charges are framed, but can continue till the
end of the trial. Again, if there are any special or peculiar features
necessitating the court to limit the tenure of anticipatory bail, it is
open for it to do so.”
29 (2020) 5 SCC 1
MS. X v. THE STATE OF MAHARASHTRA AND ANOTHER
[HIMA KOHLI, J.]
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16. In the light of the answers given to the Reference, the
Constitution Bench went on to clarify the factors that would be required
to be kept in mind while dealing with applications moved under Section
438 CrPC and observed that :-
“92.3. Nothing in Section 438 CrPC, compels or obliges courts to
impose conditions limiting relief in terms of time, or upon filing of
FIR, or recording of statement of any witness, by the police, during
investigation or inquiry, etc. While considering an application
(for grant of anticipatory bail) the court has to consider the
nature of the offence, the role of the person, the likelihood
of his influencing the course of investigation, or tampering
with evidence (including intimidating witnesses), likelihood
of fleeing justice (such as leaving the country), etc……
92.4. Courts ought to be generally guided by considerations such
as the nature and gravity of the offences, the role attributed to the
applicant, and the facts of the case, while considering whether to
grant anticipatory bail, or refuse it. Whether to grant or not is a
matter of discretion; equally whether and if so, what kind of special
conditions are to be imposed (or not imposed) are dependent on
facts of the case, and subject to the discretion of the court.
xxxx                    xxxx                  xxxx
92.6. An order of anticipatory bail should not be “blanket” in the
sense that it should not enable the accused to
commit further
offences and claim relief of indefinite protection from arrest. It
should be confined to the offence or incident, for which
apprehension of arrest is sought, in relation to a specific incident.
It cannot operate in respect of a future incident that involves
commission of an offence.”
[emphasis added]
17. In Myakala Dharmarajam and Others v. State of
Telangana and Another30, holding that the Appellate Court or a superior
Court can set aside an order granting bail if the concerned Court that
granted bail, failed to consider the relevant factors, this Court observed
that:-
30 (2020) 2 SCC 743
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“9. It is trite law that cancellation of bail can be done in cases
where the order granting bail suffers from serious infirmities
resulting in miscarriage of justice. If the court granting bail ignores
relevant material indicating prima facie involvement of the accused
or takes into account irrelevant material, which has no relevance
to the question of grant of bail to the accused, the High Court or
the Sessions Court would be justified in cancelling the bail.”
18. The aforesaid view has been reiterated in Supreme Bhiwandi
Wada Manor Infrastructure Private Limited v. State of Maharashtra
And Another31
19. In Pradeep Ram v. State of Jharkhand And Another32 called
upon to deal with a situation where an accused had been bailed out in a
criminal case in which new offences were added subsequently and a
question arose as to whether it would be necessary to cancel the bail
granted earlier for taking the accused in custody, a Division Bench of
this Court took pains to examine the view taken by several High Courts
including the High Courts of Rajasthan, Madras, Allahabad and Jammu
and Kashmir as also the observations made by this Court in previous
decisions on this aspect and held thus :-
“31. In view of the foregoing discussions, we arrive at the following
conclusions in respect of a circumstance where after grant of bail
to an accused, further cognizable and non-bailable offences are
added:
31.1. The accused can surrender and apply for bail for newly
added
cognizable and non-bailable offences. In event of refusal
of bail, the accused can certainly be arrested.
31.2. The investigating agency can seek order from the court
under Section 437(5) or 439(2) CrPC for arrest of the accused
and his custody.
31.3 [Ed. : Para 31.3 corrected vide Official Letter dated 31-7-
2020.] . The court, in exercise of power under Section 437(5) or
439(2) CrPC, can direct for taking into custody the accused who
has already been granted bail after cancellation of his bail. The
court in exercise of power under Section 437(5) as well as Section
31 (2021) 8 SCC 753
32 (2019) 17 SCC 326
MS. X v. THE STATE OF MAHARASHTRA AND ANOTHER
[HIMA KOHLI, J.]
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439(2) can direct the person who has already been granted bail to
be arrested and commit him to custody on addition of graver and
non-bailable offences which may not be necessary always with
order of cancelling of earlier bail.
31.4. In a case where an accused has already been granted bail,
the investigating authority on addition of an offence or offences
may not proceed to arrest the ac- cused, but for arresting the
accused on such addition of offence or offences it needs to obtain
an order to arrest the accused from the court which had granted
the bail.”
20. As can be discerned from the observations made in Pradeep
Ram (supra), addition of a serious offence can be a circumstance where
a Court can direct that the accused be arrested and committed to custody
even though an order of bail was earlier granted in his favour in respect
of the offences with which he was charged when his application for bail
was considered and a favourable order was passed. The recourse
available to an accused in a situation where after grant of bail, further
cognizable and non-bailable offences are added to the FIR, is for him to
surrender and apply afresh for bail in respect of the newly added offences.
The investigating agency is also entitled to move the Court for seeking
the custody of the accused by invoking the provisions of 437(5)33 and
439(2)34 Cr.P.C., falling under Chapter XXXIIII of the Statute that deals
with provisions
relating to bails and bonds. On such an application being
moved, the Court that may have released the accused on bail or the
Appellate Court/superior Court in exercise of special powers conferred
on it, can direct a person who has been released on bail earlier, to be
arrested and taken into custody.
21. Coming back to the facts of the instant case, it is not in dispute
that when the respondent No. 2/accused moved an application for bail35
before the learned ACMM on 6th August, 2022, the offences mentioned
in the FIR were under Sections 354, 354-B and 506 IPC. Bail was granted
to him on the same day primarily on the ground of non-compliance of
33 Section 437(5) - Any Court which has released a person on bail under sub-
section (1) or sub- section (2), may, if it considers it necessary so to do, direct that
such person be arrested and commit him to custody.
34 Section 439(2) - A High Court or Court of Session may direct that any person
who has been released on bail under this Chapter be arrested and commit him to
custody.
35 Bail Application No. 2279/BA/2022 36 Dated 10th August, 2022
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Section 41-A CrPC. Subsequently, the offence under Section 376 IPC
was added to the same FIR and the crime was escalated to offences
under Sections 376, 354, 354-B and 506(2) of IPC. On this turn of events,
the State moved an application seeking cancellation of bail36 granted to
the respondent No. 2/accused stating inter alia that initially, he was
charged under Sections 354, 354-B and 506 IPC, but, during the course
of recording the statement of the appellant/prosecutrix, the allegations
levelled made out an offence under Section 376 which had to be added
to the subject FIR and therefore, the bail granted in his favour needed to
be cancelled and he was required to be taken into custody. The said
application was allowed by the learned ACMM vide order dated
23rd August, 2022. This made the respondent No.2/accused approach
the Court of the learned Additional Sessions Judge, Borivalli seeking
anticipatory bail. By a well-reasoned order, the said application was
rejected and the plea taken by him that he was a victim of honeytrap,
was disbelieved. The contention of the respondent No. 2/accused that
the appellant/prosecutrix had been improving her version in the
supplementary statements37 was also considered and rejected and it was
observed that even if the said statements were to be overlooked, there
was sufficient prima facie material in the FIR to have made out an
offence under Section 376, IPC.
22. Surprisingly, none of the aforesaid aspects have been
touched
upon in both the impugned orders. The nature and gravity of the alleged
offence has been disregarded. So has the financial stature, position and
standing of the accused vis-à-vis the appellant/prosecutrix been ignored.
The High Court has granted anticipatory bail in favour of the respondent
No. 2/accused in a brief order of three paragraphs, having been swayed
by the “star variations in the narration of the prosecutrix” implying
thereby that what was originally recorded in the FIR, did not make out
an offence of rape, as defined in Section 375 IPC, which is an erroneous
assumption. Even if the first Supplementary statement of the appellant/
prosecutrix recorded in the evening hours of 6th August, 2022, the date
on which the FIR had been registered against the respondent No.2/
accused in the first half of the same day, her second Supplementary
statement recorded on 6th September, 2022 and the Medico-Legal Report
of the doctor who had examined the appellant/prosecutrix on 8th August,
36 Dated 10th August, 2022
37 Dated 06th August, 2022 and 06th September, 2022
MS. X v. THE STATE OF MAHARASHTRA AND ANOTHER
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2022, are kept aside for a moment, we find that there was still sufficient
material in the FIR that would prima facie attract the provision of Section
376, IPC. In our opinion, these factors ought to have dissuaded the High
Court from exercising its discretion in favour of the respondent No.2/
accused for granting him anticipatory bail.
23. Another reason that has weighed with this Court for interfering
in the impugned orders is that despite the appellant/prosecutrix having
filed an application for intervention38 in the petition for anticipatory bail
moved by the respondent No.2/accused before the High Court, she was
not afforded a hearing. At least a perusal of the second impugned order
does not reflect the said position. No doubt, the State was present and
was represented in the said proceedings, but the right of the prosecutrix
could not have been whittled down for this reason alone. In a crime of
this nature where ordinarily, there is no other witness except for the
prosecutrix herself, it was all the more incumbent for the High Court to
have lent its ear to the appellant.
24. Our view is in line with the observations made by a three-
Judges Bench of this Court in Jagjeet Singh And Others v. Ashish
Mishra Alias Monu And Another39 wherein speaking for the Bench,
Justice Suryakant made the following pertinent observations relating to
the victim’s right to be heard and alluding to the recommendations made
by the Law
Commission of India in its 154th Report that highlighted “the
right of the victim or his/her legal representative to be impleaded
as a party in every criminal proceedings where the charges are
punishable with 7 years’ imprisonment or more”, observed thus :-
“19. It was further recommended that the victim be armed with a
right to be represented by an advocate of his/her choice, and if
he/she is not in a position to afford the same, to provide an advocate
at the State’s expense. The victim’s right to participate in criminal
trial and his/her right to know the status of investigation, and take
necessary steps, or to be heard at every crucial stage of the
criminal proceedings, including at the time of grant or cancellation
of bail, were also duly recognised by the Committee. Repeated
judicial intervention, coupled with the recommendations made from
time to time as briefly noticed above, prompted Parliament to bring
into force the Code of Criminal Procedure (Amendment) Act,
38 IA No. 17150 of 2002
39 (2022) 9 SCC 321
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2008, which not only inserted the definition of a “victim” under
Section 2(wa) but also statutorily recognised various rights of such
victims at different stages of trial.
20. It is pertinent to mention that the legislature has thoughtfully
given a wide and expansive meaning to the expression “victim”
which “means a person who has suffered any loss or injury
caused by reason of the act or omission for which the accused
person has been charged and the expression “victim” includes
his or her guardian or legal heir”.
25. It must be remembered that in the present case, the machinery
of criminal justice has been set into motion by none other than the
appellant/prosecutrix herself. She was the one who had dialled ‘100’
number from the reception area of the Hotel where the crime had allegedly
taken place. She was the one who had approached senior officers in the
police hierarchy complaining of the apathy and inertia adopted by the
investigating officers in her case. Notably, she had moved an intervention
application in the anticipatory bail application moved by the respondent
No.2/accused before the learned Additional Sessions Judge and as is
reflected from the order passed, her counsel was granted a hearing
whereafter the said application was rejected. However, when a similar
application for intervention40 was moved by the appellant/prosecutrix
before the High Court in the anticipatory bail application moved by the
respondent No.2/accused, it appears that heed
was not paid to the pleas
taken by her though her counsel’s presence does find mention in the
order sheet. We are constrained to note that such an approach
tantamounts to failure to recognize the right of the prosecutrix to
participate in the criminal proceedings that would include a right to oppose
the application for anticipatory bail moved by the accused. The appellant/
prosecutrix having been denied a meaningful hearing when the first
impugned order of anticipatory bail granted in favour of the respondent
No. 2/accused was confirmed by the second impugned order, is an
additional factor that has prevailed with this Court to interfere in the
impugned orders.
CONCLUSION:
26. For the aforesaid reasons, the two impugned orders dated
21st September, 2022 and 07th October, 2022, granting anticipatory bail
40 Intervention Application No. 17150 of 2022
MS. X v. THE STATE OF MAHARASHTRA AND ANOTHER
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to the respondent No. 2/accused, cannot be sustained and are quashed
and set aside. The bail bonds of the respondent No.2/accused are
cancelled.
27. We, however, hasten to add that this Court has not expressed
any opinion on the merits of the case. The chargesheet has already been
filed in the case. If the respondent No.2/accused moves an application
under Section 439 Cr.P.C. before the appropriate Court, the same shall
be considered on its own merits and in accordance with law, uninfluenced
by the observations made hereinabove.
28. The appeals are disposed of on the above terms.
DIRECTIONS TO THE REGISTRY
29. Having regard to the sensitivity of the allegations levelled in
the matter and the nature of the offence complained of, it is imperative
to protect the identity of the appellant/prosecutrix. She has been identified
as “Ms. X” in these proceedings. In the instant case, the Registry is
directed to take immediate steps to redact the name of the appellant/
prosecutrix from the records. Henceforth, the Registry shall ensure that
in sensitive matters like the present one, if the name of the prosecutrix is
revealed in the petition, the same is returned to the learned counsel for
redacting the name before the matter is cleared for being placed before
the Court for appropriate orders.
Ankit Gyan
Appeals disposed of.
(Assisted by : Aarsh Choudhary, LCRA)