2024 INSC 909 REPORTABLE IN THE SUPREME COURT OF INDIA EXTRAORDINARY APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CRIMINAL) NO. 13378 OF 2024 X Petitioner(s)

VERSUS STATE OF RAJASTHAN & ANR. Respondent(s)

O R D E R

1. This petition arises from the impugned order passed by the High Court of Judicature for Rajasthan at Jodhpur dated 12-02-2024 in SB Criminal Miscellaneous Bail Application No.1351/2024 by which the bail application filed by the Respondent No.2 – herein (original accused) came to be allowed and the Respondent No.2 was ordered to be released Signature Not Verified on bail pending trial.

Digitally signed by VISHAL ANAND Date: 2024.11.30 Reason:

2. It appears from the materials on record that a First Information Report came to be lodged by the petitioner – herein dated 18-09-2023 against the Respondent No.2 – herein and a co-accused for the offence punishable under Section 376D and Section 342 of the Indian Penal Code. The FIR bearing No.83/2023 was registered with Police Station Nachna, District Jaisalmer, Rajasthan.

3. The Respondent No.2 – herein and the co-accused were arrested in connection with the alleged offence. The co-accused was ordered to be enlarged on bail long time back. 4. It appears that after the FIR was registered, the statement of the victim, i.e., the petitioner – herein was recorded by the Magistrate under Section 164 of the Code of Criminal Procedure, 1973.

5. Upon conclusion of the investigation, charge-sheet was filed.

6. The criminal case being committed to the Court of Sessions came to be registered as the Sessions Case No.53/2023 pending as on date in the Court of Additional District and Sessions Judge, Pokaran (Jaisalmer).

7. The prosecution has examined one witness so far.

8. In the midst of the trial, the Respondent No.2 – herein preferred a bail application before the Trial Court. The Trial Court declined to release the accused on bail.

9. The accused went before the High Court and prayed for bail.

10.The High Court took into consideration some discrepancies emanating between the FIR and the statement of the victim recorded under Section 164 of the Code. The High Court was persuaded to release the Respondent No.2 –

herein on bail.

11.Having regard to such discrepancies in the FIR and the statement recorded under Section 164 of the Code, the operative part of the impugned order passed by the High Court reads thus:-

“Para 9. Accordingly, the instant bail application under Section 439 Cr. P.C is allowed and it is ordered that the accused-petitioner as amed in the cause title shall be enlarged on bail provided he furnishes a personal bond in the sum of Rs.50,000/- with two sureties of Rs.25,000/- each to the satisfaction of the learned trial Judge for his appearance before the court concerned on all the dates of hearing as and when called upon to do so.”

12.In such circumstances, referred to above, the petitioner, i.e., the victim is here before us with the present petition.

13.We have heard the learned counsel appearing for the petitioner and the learned counsel appearing for the State. The Respondent No.2 – accused although served with the notice issued by this Court, yet has chosen not to remain present before this Court either in-person or through an Advocate and oppose this petition.

14.Ordinarily in serious offences like rape, murder, dacoity, etc., once the trial commences and the prosecution starts examining its witnesses, the Court be it the Trial Court or the High Court should be loath in entertaining the bail application of the accused.

15.Over a period of time, we have noticed two things, i.e., (i)

either bail is granted after the charge is framed and just before the victim is to be examined by the prosecution before the trial court, or (ii) bail is granted once the recording of the oral evidence of the victim is complete by looking into some discrepancies here or there in the deposition and thereby testing the credibility of the victim.

16.We are of the view that the aforesaid is not a correct