IMPORTANT POINT
Anticipatory bail cannot be denied to an accused where charge u/s 376 IPC is added after such a long lapse of time as 14 years in which inaction by the prosecutrix also contributed.

Headnote:(a) Code of Criminal procedure, 1973 – Section 438 – Anticipatory bail – Allegation of rape pertaining to a period 17 years ago, in 1997-98 – No charge framed u/s 376 IPC in the year 2001 – Prosecutrix not taking any action for another 9 years – Charge u/s 387 added only in 2014 – Anticipatory bail cannot be denied to appellant on ground of addition of charge u/s 376 IPC after such a long lapse of time in which inaction by the prosecutrix also contributed. (Para 17, 24)
       (b) Code of Criminal Procedure, 1973 – Section 438 – Section 438 should be construed liberally in the light of Article 21 of the Constitution – Expression “may, if it thinks fit” in section 438(1) giving discretion to the court – The complaint needs to be thoroughly examined – Gravity of charge and the exact role of the accused must be properly comprehended – Facts must be evaluated carefully and with meticulous precision – Limitations mentioned in section 437 should not be read into section 438 – Court granting the bail also has the power to cancel it – Factors like likelihood of the accused absconding, or repeating the crime would be relevant. (Para 19, 21, 23)
       (1980) 2 SCC 565; (2011) 1 SCC 694 – Relied upon
       Facts of the case:
       The appellant and respondent No.2 ('prosecutrix') were neighbours at the relevant time and known to each other. On 29.05.2001, the prosecutrix in a complaint to the Assistant Police Commissioner, Crime Branch, Gaekwad Haveli, Ahmedabad City alleged harassment 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.
       However, in her statement to the police, allegations of rape were conspiciously missing.
       F.I.R. was registered and charge under Section 506(2) IPC was framed in the year 2001. The appellant was admitted to bail in the said case.
       In the year 2010, the prosecutrix made an application for addition of charge under Section 376 IPC as well.
       On 31.03.2012, the Metropolitan Magistrate directed the Police to carry out special investigation under Section 173(8) CrPC.
       The parties challenged the above order. Ultimately the Supreme Court issued certain directions. Finally, 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.
       The appellant was granted anticipatory bail on 18.05.2013.
       On an application of the prosecutrix the High Court cancelled the anticipatory bail granted to the appellant.
       Finding of the Court:
       Anticipatory bail cannot be denied to appellant.

JUDGMENT :

A.K. SIKRI, J.

Leave granted.

2. 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.

3. 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.

4. 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, on

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2015 Supreme(SC) 841

SUPREME COURT OF INDIA A.K. SIKRI, ROHINTON FALI NARIMAN, JJ.BHADRESH BIPINBHAI SHETH – APPELLANTSVERSUS STATE OF GUJARAT & ANOTHER – RESPONDENTSCRIMINAL APPEAL NOS. 1134-1135 OF 2015 [arising out of Special Leave Petition (Crl.) Nos. 6028-6029 of 2014]Decided On : 01-09-2015

IMPORTANT POINTAnticipatory bail cannot be denied to an accused where charge u/s 376 IPC is added after such a long lapse of time as 14 years in which inaction by the prosecutrix also contributed.

Cases Referred (2)

SUPREME COURT OF INDIA
A.K. SIKRI, ROHINTON FALI NARIMAN, JJ.
BHADRESH BIPINBHAI SHETH – APPELLANTS
VERSUS
STATE OF GUJARAT & ANOTHER – RESPONDENTS
CRIMINAL APPEAL NOS. 1134-1135 OF 2015 [arising out of Special Leave Petition (Crl.) Nos. 6028-6029 of 2014]
Decided On : 01-09-2015

IMPORTANT POINT
Anticipatory bail cannot be denied to an accused where charge u/s 376 IPC is added after such a long lapse of time as 14 years in which inaction by the prosecutrix also contributed.