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2016 (2) TMI 416 - SUPREME COURT

2016 (2) TMI 416 - SUPREME COURT - 2015 (8) JT 125, 2015 (9) SCALE 403 - Anticipatory bail granted to the appellant by the Additional Sessions Judge, Court No.16 of Ahmedabad City Sessions Court challenged - Held that:- As no purpose would be served in compelling the appellant to go behind bars, as an undertrial, by refusing the anticipatory bail in respect of alleged incident which is 17 years old and for which the charge is framed only in the year 2014. The investigation is complete and there .....

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deny anticipatory bail when the matter is examined keeping in view other factors enumerated above.

The prosecutrix has moved an application in these proceedings for perusing new evidence on the basis of which she claims that the appellant has committed breach of conditions of anticipatory bail and regular bail. It is not necessary for us to go into the allegations made in this application. She would be at liberty to make such an application before the trial court for cancellation of .....

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ed judgment and restore the order of the learned Additional Sessions Judge granting anticipatory bail to the appellant on the conditions mentioned in the said order. Appeals are allowed in the aforesaid terms. - CRIMINAL APPEAL NOS. 1134-1135 OF 2015 [[arising out of Special Leave Petition (Crl.) Nos. 6028-6029 of 2014] - Dated:- 1-9-2015 - A.K. Sikri and Rohinton Fali Nariman JUDGMENT Leave granted. 2. The appellant herein, in these appeals, challenges the validity of the judgment dated 18.07.2 .....

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inafter 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 P .....

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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 hear .....

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tion 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 .....

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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, one may not find fault with the order of the Additional Session Judge granting anticipatory bail. However, the impugned or .....

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ustainable or not. These facts are recapitulated with elaboration which is absolutely necessary for our purposes, as under: 6. As mentioned above, before registration of the FIR on 31.05.2001 on the basis of the statement, the prosecutrix had filed a complaint on 29.05.2001 before the Assistant Commissioner of Police, Crime Branch. In this complaint, she stated that she is a housewife and had been residing at 1, Navpad Tenement, Opposite Nava Vikas Gruh, Behind Opera for 1½ years. She fur .....

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secutrix, he asked her to sit in the car as he was also going home. Though, she initially refused but thereafter she sat in the car being unaware of his malafide intentions. Thereafter, he took the car to some uninhabited place near Telav Village, beat her and forcefully raped her. He also threatened her not to narrate the above incident to anybody. Being scared of these threats, she did not tell the incident to anybody. Taking benefit of the circumstances, after one month he repeated the act of .....

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ld her husband and in-laws. She went to Jyoti Sangh, a NGO and encouraged by their support, she lodged the complaint of continuous harassment on the part of the appellant. 7. On 31.05.2001, her statement was recorded in the Police Station by the IO in which the allegations of misbehaviour by the appellant are contained and the entire statement reads as under: The plaintiff Manishaben dictates that though the complaint is lodged against the defendant Bhadresh, he is not impoved till today. Our co .....

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nner in front of my house and he is also behaving with my husband in a abusive manner which could not be borne or disclosed. At this time, when we left from Sanand to come to Ahmedabad, workman of Bhadresh was chasing us and was behind us for about 3 to 4 km and I do not know if any other associates were of him or not going ahead, but his associates are remaining present surrounding me in a manner that he was keeping our watch chasing us even though I myself or my husband were not speaking anyth .....

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regarding alleged rape by the appellant. Be that as it may, the FIR was registered only under Section 506(2) of IPC on 31.05.2001 bearing C.R. No.II. 3009/2001 and on that basis, charge was framed only under the aforesaid Section on 25.06.2001. Further for one reason or the other, the prosecution case even under the said charge did not make any substantial progress. 9. On 07.12.2010, an application was moved by the prosecutrix for amending the charge by including the offence under Section 376 IP .....

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Magistrate directing further investigation under Section 173(8) of the Code implying thereby that the necessity of framing of such charge would depend upon the investigation carried out by the Police. Without stating the details, it suffices to mention that the matter was taken by all the parties to the Sessions Court and then to the High Court. Thereafter, the prosecutrix even came up to this Court by way of SLP (Crl.) No.636/2013 against the order dated 23.10.2012 passed by the High Court whic .....

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to the order passed by the Magistrate. If that is so, we are both surprised and pain at the inaction of the police and we direct the Investigating Officer of Criminal Case No. 51 of 2011, pending before the Metropolitan Magistrate, as directed by the Magistrate, and submit the final report within four weeks from the date of receipt/production of a copy of this order before him. In view of the above direction, the petitioner does not wish to press this special leave petition any longer. It is di .....

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ion for grant of anticipatory bail to the said Sessions Court which was granted on 18.05.2013. As already noted above, the order granting bail to the appellant/accused has been cancelled by the High Court. 11. Mr. Dushyant Dave and Mr. Harin Raval, learned senior counsel appearing for the appellant took us through the material on record on the basis of which it was sought to be argued that there was acquaintance between the appellant and the prosecutrix and the circumstances indicate that the ph .....

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IO, the IO clearly observed that no other circumstantial evidence could be collected regarding the rape as alleged by the complainant except her statement. It was also submitted that in the complaint made to Jyoti Sangh, NGO, at the end of the complaint which was given by the prosecutrix, there was a noting that no action be taken on the said complaint as the parties were trying to arrive at amicable settlement. The noting reads as under: This case file be kept pending and whenever we want, onl .....

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rded by the Police, no fact regarding rape was stated. It was also not mentioned as to at which place and at what time, incident of rape had taken place. The learned senior counsel, thus, submitted that in these circumstances the learned Additional Session Judge rightly granted anticipatory bail. The reasons adopted by the High Court in cancelling the bail were commented upon by the learned counsel as not based on record, particularly, the observations of the High Court that the prosecutrix had .....

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ing with the evidence by disturbing the witnesses and on that basis, it is observed by the High Court that the appellant was not entitled to the benefit of anticipatory bail. Submission in this behalf was that even if the complaint or cases lodged by the appellant against the husband of the prosecutrix are presumed to be false, they had nothing to do with the instant case and, therefore, such acts on the part of the appellant could never be treated as tampering with the evidence. 12. The prosecu .....

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rosecutrix in which she was placed and committed subsequent acts of intercourse against her wishes which were nothing but commission of offences under Section 376 of IPC. (b) Various letters were written by the appellant not only to the prosecutrix but to her other family members as well, which showed his continued harassment to the prosecutrix and her family members. (c) The appellant was even having an evil eye on the prosecutrix's daughter who was of growing age and wanted to blackmail th .....

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001 by the IO was not correctly recorded who intentionally omitted her statement concerning her rape by the appellant, though specifically stated. It is because of this reason that she had to file the application in the trial court for inclusion of charge under Section 376 IPC with the prayer that complaint dated 29.05.2001 before the ACP should be treated as the FIR and not the statement dated 31.05.2001 recorded by the IO. (f) She also submitted that she had to come up to this Court to have th .....

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this charge, it was not a case of anticipatory bail. 14. We have given our thoughtful and serious consideration to the aforesaid submissions on the charges, particularly, keeping in mind that there is a charge of rape against the appellant and the case projected by the prosecutrix is that as a helpless and weak soul, she has been immensely harrassed, physically abused and mentally tortured by the appellant. 15. In the first place, it is necessary to remind ourselves that in the present proceedin .....

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relationship between the appellant and the prosecutrix and, if so, whether it was consensual and, therefore, no charge of rape was made out. The fact remains that a charge of rape has been framed. It would ultimately be for the trial court to arrive at the findings as to whether such a charge stands proved or not, on the basis of evidence that would be produced by the prosecution in support of this charge. With these preliminary remarks, we advert to the core issue, namely, whether in the circu .....

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t to ACP on 29.05.2001 as well. However, for some curious reasons, the allegations of rape did not find mention in her statement recorded by the IO on 31.05.2001 on the basis of which FIR was registered. This possibility cannot be ruled out that the IO did not record the statement correctly and intentionally omitted to mention about the allegations of rape. Whether this, in fact, happened would be tested during trial. However, the fact remains that when the FIR was registered on the basis of sta .....

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as well on the ground that her complaint to the ACP given on 29.05.2001 be treated as FIR. The prosecutrix may have valid reasons for this delay. However, it is not for us to go into the same at this stage inasmuch as that is again a matter of trial and it would be for the Sessions Court to ultimately adjudge as to whether such delay was suitably explained and/or has any bearing on the merits of the charge. It is reiterated at the cost of repetition that we have to simply decide the question of .....

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a serious charge, is now added, the benefit of anticipatory bail cannot be denied when such a charge is added after a long period of time and inaction of the prosecutrix is also a contributory factor. 18. The High Court has remarked that the complainant had to run a marathon for getting her complaint registered as an FIR and more particularly for addition of charge under Section 376 IPC. In view of what we have mentioned above, these observations are not correct. Further, the High Court has also .....

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bservation of the High Court. As far as the discussion in the impugned order commenting upon the conduct of the appellant in filing false complaints and cases against the husband of the prosecutrix is concerned, we find that the High Court has made contradictory remarks on this aspect. At one place, such a move on the part of the appellant is condemned as amounting to disturbing the witness and is treated as tampering with evidence. However, at another place, the High Court itself remarked that .....

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s. A judgment which needs to be pointed out is a Constitution Bench Judgment of this Court in the case of Gurbaksh Singh Sibbia and Others v. State of Punjab [(1980) 2 SCC 565]. The Constitution Bench in this case emphasized that provision of anticipatory bail enshrined in Section 438 of the Code is conceptualised under Article 21 of the Constitution which relates to personal liberty. Therefore, such a provision calls for liberal interpretation of Section 438 of the Code in light of Article 21 o .....

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tion of arrest and is therefore, effective at the very moment of arrest. A direction under Section 438 is therefore intended to confer conditional immunity from the 'touch' or confinement contemplated by Section 46 of the Code. The essence of this provision is brought out in the following manner: 26. We find a great deal of substance in Mr Tarkunde s submission that since denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of unnecessar .....

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which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficent provision contained in Section 438 must be saved, not jettisoned. No doubt can linger after the decision in Maneka Gandhi v. Union of India, (1978) 1 SCC 248, that in order to meet the challenge of Article 21 of the Constitution, the procedure established by law for depriving a person .....

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ipatory bail, still such principles have to be kept in mind, namely, the object of bail which is to secure the attendance of the accused at the trial, and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise, bail is not to be withheld as a punishment. The Court has also to consider whether there is any possibility of the accused tampering with evidence or influenc .....

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ted as of universal validity or as necessarily justifying the grant or refusal of bail. After clarifying this position, the Court discussed the inferences of anticipatory bail in the following manner: 31. In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the .....

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at anticipatory bail must be granted if there is no fear that the applicant will abscond. There are several other considerations, too numerous to enumerate, the combined effect of which must weigh with the court while granting or rejecting anticipatory bail. The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant s presence not being secured at the trial, a reasonable apprehension that wi .....

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member that the freedom of the individual is as necessary for the survival of the society as it is for the egoistic purposes of the individual. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints on his freedom, by the acceptance of conditions which the court may think fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail. 21. It is pertinent to note that while interpretin .....

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anticipatory bail. But that would not mean that he has to make out a special case . The Court also remarked that a wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. 22. Another case to which we would like to refer is the judgment of a Division Bench of this Court in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra and Others [(2011) 1 SCC 694]. This case lays down an exhaustive commentary of Section .....

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l's personal liberty and the society's interest. Society has a vital interest in grant or refusal of bail because every criminal offence is the offence against the State. The order granting or refusing bail must reflect perfect balance between the conflicting interests, namely, sanctity of individual liberty and the interest of the society. The law of bails dovetails two conflicting interests, namely, on the one hand, the requirements of shielding society from the hazards of those commit .....

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mplainant has filed a false or frivolous complaint on earlier occasion. The court should also examine the fact whether there is any family dispute between the accused and the complainant and the complainant must be clearly told that if the complaint is found to be false or frivolous, then strict action will be taken against him in accordance with law. If the connivance between the complainant and the investigating officer is established then action be taken against the investigating officer in a .....

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he courts to carefully and with meticulous precision evaluate the facts of the case. The discretion to grant bail must be exercised on the basis of the available material and the facts of the particular case. In cases where the court is of the considered view that the accused has joined the investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided. A great ignominy, humiliation and disgrace is at .....

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r the exercise of the power to grant anticipatory bail. This virtually, reduces the salutary power conferred by Section 438 CrPC to a dead letter. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints and conditions on his freedom, by the acceptance of conditions which the court may deem fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail. (v) The proper course of action o .....

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e Public Prosecutor or the complainant would be at liberty to move the same court for cancellation or modifying the conditions of anticipatory bail at any time if liberty granted by the court is misused. The anticipatory bail granted by the court should ordinarily be continued till the trial of the case. (vi) It is a settled legal position that the court which grants the bail also has the power to cancel it. The discretion of grant or cancellation of bail can be exercised either at the instance .....

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upon the facts and circumstances justifying its exercise. Similarly, the discretion vested with the court under Section 438 CrPC should also be exercised with caution and prudence. It is unnecessary to travel beyond it and subject the wide power and discretion conferred by the legislature to a rigorous code of self-imposed limitations. (ix) No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail because all circumstances and situations of future .....

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accused must be properly comprehended before arrest is made; (b) 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; (c) The possibility of the applicant to flee from justice; (d) The possibility of the accused's likelihood to repeat similar or other offences; (e) Where the accusations have been made only with the object of injuring or humiliating the applicant by a .....

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rimplication in the cases is a matter of common knowledge and concern; (h) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to free, fair and full investigation, and there should be prevention of harassment, humiliation and unjustified detention of the accused; (i) The Court should consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (j) Frivolit .....

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