Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(SC) 792

SUPREME COURT OF INDIA
S. RAVINDRA BHAT, ARAVIND KUMAR, JJ.
Bhagwan Singh – Appellant
Versus
Dilip Kumar @ Deepu @ Depak And Another - Respondents
Criminal Appeal No. 2560 of 2023 (@ Special Leave Petition (Crl.) No. 6199 of 2023)
With
Bhagwan Singh – Appellant
Versus
Netram And Another – Respondents
Criminal Appeal No. 2561 of 2023 (@ Special Leave Petition (Crl.) No.6200 of 2023)
Decided On : 23-08-202

Advocates appeared:
For the Appellant(s) :Mr. Anuj Bhandari, Advocate, Mr. Gaurav Jain, Advocate and Mr. Rajat Gupta, Advocate
For the Respondent(s):Mr. S.K. Sinha, Advocate, Ms. Seema Kashyap, Advocate, Mr. Shubham Kashyap, Advocate, Ms. Meenakshi Arora,Sr. Advocate, Mr. Vivek Jain, Advocate, Mr. Bhrigu Sharma, Advocate, Mr. Puneet Parihar, Advocate, Ms. Honey Kumbhat, Advocate, Mr. Abhinav Jain, Advocate, Mr. Rajat Jain, Advocate, Mr. Vishal Meghwal, Advocate, Mr. Milind Kumar, Advocate, Mr. Jagdish Chand Solanki, Advocate and Ms. Yashika Bum, Advocate

IMPORTANT POINTS
(1) Grant of bail is dependent upon contextual facts of matter being dealt with by Court and may vary from case to case – Frivolity of prosecution should always be considered and it is only element of genuineness that shall have to be considered in matter of grant of bail.
(2) Cancellation of bail has to be dealt on a different footing in comparison to a proceeding for grant of bail.

Headnote:
(A) Criminal Procedure Code, 1973 – Section 439 – Bail – Grant of bail is a discretionary relief – Grant of bail is dependent upon contextual facts of matter being dealt with by Court and may vary from case to case – There cannot be any exhaustive parameters set out for considering application for grant of bail – While granting bail court has to keep in mind factors such as nature of accusations, severity of punishment, reasonable apprehensions of the witnesses being tempered with or apprehension of there being a threat for the complainant – Frivolity of prosecution should always be considered and it is only element of genuineness that shall have to be considered in matter of grant of bail – In the event of there being some doubt as to genuineness of prosecution, in normal course of events, accused is entitled to have order of bail. (Para 12)
(B) Criminal Procedure Code, 1973 – Sections 437(5) and 439(2) – Cancellation of bail – Cancellation of bail has to be dealt on a different footing in comparison to a proceeding for grant of bail – When prayer is made for cancellation of grant of bail cogent and overwhelming circumstances must be present and bail once granted cannot be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it in conducing to allow fair trial – Bail can also be revoked where Court has considered irrelevant factors or has ignored relevant material available on record which renders order granting bail legally untenable – Gravity of offence, conduct of accused and societal impact of undue indulgence by Court when investigation is at threshold, are also amongst a few situations, where a Superior Court can interfere in an order of bail to prevent the miscarriage of justice and to bolster administration of criminal justice system. (Paras 13, 14 and 15)
(C) Indian Penal Code, 1860 – Sections 376D, 384 and 506 read with Section 326 of POCSO Act, 2012 and Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Section 66 of Information Technology Act, 2000 – Criminal Procedure Code, 1973 – Section 439 – Grant of bail – Rape of minor girl – Offence alleged in instant case is heinous and would be a onslaught on dignity of womanhood – Allegation made in complaint relates to gang rape of a minor girl who is aged 15 years six months – Fact that accused is son of sitting MLA would disclose domineering influence he would wield not only in delaying proceedings but also in pressurizing witnesses – High Court seems to have erred in not considering these basic facts while considering prayer for grant of bail – Order of High Court set aside and bail cancelled. (Paras 17, 20, 23, 25, 27 and 28)
Facts of the case:
Present appeals by way of special leave arises from order dated 06.04.2023 passed by Single Judge of the High Court of Judicature at Rajasthan, Jaipur Bench in S.B. Criminal Miscellaneous 2nd Bail Application No.219 of 2023 whereby applications filed by first Respondent in respective appeals under Section 439 of Code of Criminal Procedure, 1973 has been allowed and have been granted bail on furnishing a personal bond for a sum of Rs.1,00,000/- with two sureties of Rs.50,000/- each for their presence in connection with FIR No.94 of 2022 registered on the complaint of appellant for offences punishable under Section 376D, 384, 506 of Indian Penal Code, Section 326 of POCSO Act and Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Section 66 of Information Technology Act, 2000.
Findings of Court:
High Court has got swayed on the ground of delay and the video having not been recovered during the course of investigation and has given a complete go by to the allegation made in FIR and statement recorded under Section 161 and 164 of the Cr.P.C. as also the testimony of prosecutrix before jurisdictional court.
Result : Appeals allowed.

JUDGMENT

Aravind Kumar, J.

Leave granted.

2. The present appeals by way of special leave arises from the order dated 06.04.2023 passed by the learned Single Judge of the High Court of Judicature at Rajasthan, Jaipur Bench in S.B. Criminal Miscellaneous 2nd Bail Application No.219 of 2023 whereby the applications filed by the first Respondent in the respective appeals under Section 439 of the Code of Criminal Procedure, 1873 (for short the Cr.P.C.) has been allowed and have been granted bail on furnishing a personal bond for a sum of Rs.1,00,000/-(Rupees one lakh only) with two sureties of Rs.50,000/- each for their presence in connection with the FIR No.94 of 2022 registered on the complaint of the appellant by Police Station Mandawar, District Dausa, Rajasthan for the offences punishable under Section 376D, 384, 506 of the Indian Penal Code (for short the IPC), Section 326 of POCSO Act and Section 3(2)(v) of The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short SC/ST Act) and Section 66 of the Information Technology Act, 2000.

Brief Background:

3. The appellant (original complainant) is the uncle of minor girl got registered an FIR No.94 of 2022 on 25.03.2022 with the jurisdictional police alleging gang rape, threat of making video of rape recorded viral and extortion which came to be registered for the offences punishable under Section 376D, 384 and 506 of the IPC read with Section 326 of POCSO Act and Section 66D of IT Act. The said FIR was registered against Vivek, Deepak and Netram.

4. It is the case of the prosecution that minor girl "XXX" aged 15 years and six months was studying in Class-X had got acquainted with a boy named Vivek and he seduced the minor girl and took her to Samleti Palace Hotel, Mandawar Road, Mahwa on February 24, 2021 and he along with his friends Deepak and Netram gang raped her after drugging and took videos of the incident. It was alleged that all of them had threatened her not to disclose the said incident as otherwise they would eliminate her father and brother make the video viral. It was further alleged in the complaint that accused persons proclaimed and they would not be harmed as they were powerful and as such the minor girl got scared and under the threat of video being circulated, she gave gold ornaments of her mother to said Vivek as instructed by him. It was also alleged that again Vivek had raped her under the threat of video being made viral and was extracting money from her. It was alleged that she was raped 45 times in the same hotel and she became weak and sick. Though enquires were made by her father and mother she had not revealed anything out of fear. It was also alleged that on 2nd May, 2021 the marriage of his elder brothers daughter took place and entire family was busy and at that point of time they forced the minor girl to permit Vivek and his companions to enter the house by putting pressure on her and the jewellery kept for the marriage was taken away by Vivek and his accomplice. It was alleged in this regard an FIR No.142 of 2021 was registered by the mother of minor girl with the Police Station, Raini. It was alleged that during the course of investigation the accused Vivek was interrogated and he confessed to have taken away the jewellery and thereafter they had continued to threaten the minor girl not to disclose about the rape as otherwise they would destroy her entire family. It is stated that on 24th March, 2023, the minor girl had disclosed about the incident of 24.02.2021 after much persuation and as such complainant sought for strict action being taken against the accused persons.

5. After investigation the charge-sheet came to be filed against Netram and Vivek only. However, the jurisdictional court took cognizance against Deepak @ Dileep Kumar @ Dipu by order dated 09.06.2022 for the offence punishable under Section 376(2)(n), 376DA of the IPC and Section 516 of POCSO Act and thereafter the case has been registered and accused h