1. Allegations of obscene photography, blackmail, and extortion under IPC and IT Act; appeal against cancellation of anticipatory bail granted on grounds of suppressing previous application dismissals. (Para 2 , 4 )
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2024 Supreme(SC) 273
SUPREME COURT OF INDIA
VIKRAM NATH, SANJAY KAROL, JJ.
Sabita Paul – Appellant
Versus
The State of West Bengal and Another – Respondents
Criminal Appeal No. 1772 of 2024, Special Leave Petition (Criminal) No. 14053 of 2023
Decided On : 22-03-2024
Important Points
IMPORTANT POINT
IMPORTANT POINT
Grant of bail based on parity is not a claim of right – Court is required to focus on role attached to accused whose application is under consideration.
IMPORTANT POINT
Grant of bail based on parity is not a claim of right – Court is required to focus on role attached to accused whose application is under consideration.
Subject
Criminal Law - Bail
Act Referred
CRIMINAL PROCEDURE CODE: S.439(2)
INDIAN PENAL CODE: S.120(b), S.149, S.34, S.354, S.376, S.389, S.506
INFORMATION AND TECHNOLOGY ACT: S.67(a)
INDIAN PENAL CODE: S.120(b), S.149, S.34, S.354, S.376, S.389, S.506
INFORMATION AND TECHNOLOGY ACT: S.67(a)
Headnote
Criminal Procedure Code, 1973 – Sections 437(5) and 439(2) – Anticipatory bail – Cancellation of – Prime accused has been charged under Sections 376, 354, 389, 506, and 120-B IPC and he has been granted anticipatory bail – Present appellant has been charged under Section 120-B IPC and Section 67A of Information and Technology Act, 2000 – Alleged act of instant appellant is inextricably bound to acts of prime accused – It is alleged that he had secured pictures of complainant, that were compromising in nature, which then instant appellant used to extort and to blackmail complainant – Grant of bail based on parity is not a claim of right – Court is required to focus on role attached to accused whose application is under consideration – In the facts, prime accused who is alleged to have initially conducted blackmail, whom complainant is said to have paid ‘hush-money’ has been granted bail and role played by instant appellant was only to further alleged acts of her son – She has not acted independently, to further aggravate situation – Order granting anticipatory bail to instant appellant confirmed, setting aside order of cancellation of bail passed by Division Bench in impugned judgment and order. (Paras 7, 9 and 10)
Facts of the case:
Present appeal arises out of such order of cancellation of granting anticipatory bail. This Court vide order dated 06.11.2023 had granted interim protection in favour of accused subject to all cooperating in investigation and trial. Instant appellant is in full compliance with such an order. It is not the case of respondents that post the grant of interim protection appellant, has, in any manner impeded the cause of justice.
Findings of Court:
Condition upon which this Court granted interim protection, which was that appellant would extend all cooperation in the investigation and trial still accompanies.
Result : Appeal allowed with observations.
Legal Category Hierarchy
Advocates appeared:
For the Petitioner(s): Mr. Bhaskar Dev Konwar, Sr. Adv. Mrs. Jyotimala Dev Konwar, Adv. Ms. Charu Ambwani, AOR
For the Respondent(s): Mr. S.Nagamuttu, Sr. Adv. Mr. Arnab Sengupta, Adv. Ms. Anwesha Saha, AOR Mr. Rajesh Kr.sharma, Adv. Mr. Deborshi Dhar, Adv. Mr. Janardan Periwal, Adv. Mr. Riju Dey, Adv. Mr. Salim Ansari, Adv. Mr. Srisatya Mohanty, Adv. Ms. Muskan Surana, Adv. Ms. Astha Sharma, AOR
For the Petitioner(s): Mr. Bhaskar Dev Konwar, Sr. Adv. Mrs. Jyotimala Dev Konwar, Adv. Ms. Charu Ambwani, AOR
For the Respondent(s): Mr. S.Nagamuttu, Sr. Adv. Mr. Arnab Sengupta, Adv. Ms. Anwesha Saha, AOR Mr. Rajesh Kr.sharma, Adv. Mr. Deborshi Dhar, Adv. Mr. Janardan Periwal, Adv. Mr. Riju Dey, Adv. Mr. Salim Ansari, Adv. Mr. Srisatya Mohanty, Adv. Ms. Muskan Surana, Adv. Ms. Astha Sharma, AOR
Table of Contents
2. The complainant contended that anticipatory bail should be cancelled because the appellant suppressed material facts regarding the dismissal of previous bail applications. (Para 4 )
3. The court observed that since the prime accused was granted bail and custodial interrogation was deemed unnecessary, the secondary accused similarly did not require custodial interrogation. (Para 8 , 9 )
4. Parity is not a right, but the role of the accused must be evaluated; secondary accused may be granted bail if the prime accused is enlarged. (Para 8 , 9 )
5. Appeal allowed; order cancelling anticipatory bail set aside and the original grant of anticipatory bail confirmed subject to cooperation in investigation. (Para 10 , 11 )
6. What factors must a court consider when deciding an application for anticipatory bail?
Factors include the nature and gravity of the accusation, the accused's antecedents, flight risk, likelihood of repeating offences, potential for harassment, the impact of the grant on the public, and the need to balance a fair investigation with the prevention of unjustified detention. (Para 6 )
7. How does the principle of parity operate in bail applications?
Grant of bail based on parity is not a claim of right. The court must focus on the specific role attributed to the accused under consideration to determine if the circumstances justify the grant of bail. (Para 9 )
8. Does the grant of bail to a prime accused influence the bail of a secondary accused?
Yes; if the court finds that the prime accused does not require custodial interrogation, it follows that a secondary accused whose role is inextricably bound to and less significant than the prime accused may also not require custodial interrogation. (Para 8 , 9 )
JUDGMENT :
SANJAY KAROL, J.
1. Leave granted.
2. On the basis of complaint filed by Smt. “X” (hereinafter referred to as the complainant), and pursuant to the order passed by the Judicial Magistrate, Siliguri, West Bengal, FIR No. 438 of 2022 dated 07.05.2022 was registered at Police Station, Siliguri, against two accused persons namely, Supratim Paul and his mother Sabita Paul. It is alleged that Supratim Paul, the neighbour of the complainant had discreetly taken photographs of the complainant without her knowledge or consent and that such photographs were obscene, indecent, salacious, and offensive and were threatened to be circulated on the social media platforms. Supratim Paul approached the complainant to extort money, but his demands were not met. Further, Supratim Paul shared the same on the phone of his mother (present appellant) who also in conspiracy with her son tried to blackmail the complainant to extort money. In a nutshell, this is the case set out by the complainant.
3. The record reveals that the prime accused Supratim aged 23 years stands enlarged on bail and no challenge has been laid to the said bail order.
4. It is also a matter of record that the instant appellant i.e. Sabita Paul, the mother of the prime accused moved an application seeking anticipatory bail, firstly before the Sessions Court and thereafter before the High Court which indisputably stood rejected. This was all before the filing of the charge sheet dated 07.05.2022. It is a matter of record that post dismissal of such applications, on 20.01.2023, the instant appellant again applied for anticipatory bail before the High Court which stood allowed vide order dated 12.06.2023 (Annexure P-9 page 83). The complainant by filing an application under Section 439(2) of the Code of Criminal Procedure, 1973 sought cancellation of such an order which stood allowed vide impugned order dated 20.09.2023 on the ground that the instant appellant had suppressed “material facts of” dismissal of her previous attempts to secure anticipatory bail.
5. The appeal thus arises out of such order of cancellation of granting anticipatory bail. At this juncture, we may also note that this Court vide order dated 06.11.2023 had granted interim protection in favour of the accused subject to all cooperating in the investigation and trial. Before us, it is not in dispute that the instant appellant is in full compliance with such an order. It is not the case of the respondents that post the grant of interim protection the appellant, has, in any manner impeded the cause of justice.
6. The concept of anticipatory bail came to be part of the criminal law landscape via the 41st Report of the Law Commission which recommended the inclusion of such a provision, which then stood incorporated in the Code of Criminal Procedure, 1973. Over the years, many judgments of this Court have considered that a Court must weigh while considering an application for anticipatory bail. In Dr. Naresh Kumar Mangla vs. Anita Agarwal and Others, (2021) 15 SCC 777, a three-Judge Bench laid down the following factors:
“17. The facts which must be borne in mind while considering an application for the grant of anticipatory bail have been elucidated in the decision of this Court in Siddharam Satlingappa Mhetre vs. State of Maharashtra, (2011) 1 SCC 694 : (2011) 1 SCC (Cri) 514 and several other decisions. The factors to be considered include: (SCC pp. 736-737, Paras 112-113)
“112.......(i) the nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made.
(ii) 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.
(iii) the possibility of the applicant fleeing from justice.
(iv) the likelihood of the accused repeating similar or other offences.
(v) whether the accusations have been made only with the object of injuring or humiliating the
