Bhagwan Singh vs Dilip Kumar @ Deepu @ Depak and Another

Court

Supreme Court of India

Date

23 August 2023

Case No.

Criminal Appeal No. 2560 of 2023

Result

Allowed

Bench

S. Ravindra Bhat, Aravind Kumar

Citation

[2023] 11 S.C.R. 469 : 2023 INSC 761

Issue for consideration

Whether the Single Judge of the High Court was justified in granting bail to the respondent-accused in connection with the FIR registered against them by the appellant-uncle of the minor girl alleging gang rape, threat of making video of rape recorded viral and extortion for the offences punishable u/ss. 376D, 384, 506 IPC, s. 3 to 6 of POCSO Act, s. 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and s. 66 of the Information Technology Act, 2000. Code of Criminal Procedure, 1973 – s. 439 – Special powers of High Court or Court of Session regarding bail – Grant of bail – Allegation of gang rape of minor girl aged 15 years, threat of making video of rape recorded viral and extortion – Registration of FIR by the complainantuncle for the minor girl for offences punishable u/ss. 376D, 384, 506 IPC, s. 3 to 6 of POCSO Act, s. 3(2)(v) of the 1989 Act and s. 66 of the 2000 Act against three accused, one son of the sitting MLA, other an acquaintance and the third one the manager of the hotel where the alleged incident occurred – Grant of bail by the High Court – Justification: Held: Instant case is a heinous one and would be a onslaught on the dignity of the womanhood – Father of the victim was a police constable, far below in the hierarchy of service – One of the accused was the son of a sitting MLA and another accused seems to have criminal antecedents and the third accused was the manager of the Hotel where the alleged incident of gang rape occurred – Reason assigned for 13 month delay in filing the complaint was constant threat posed by the accused persons of making the video of rape to go viral, especially being in a domineering position – Fact of delay prima facie cannot be held against the prosecution – Genuineness of the complaint cannot be viewed with doubt nor it can be held that by itself would be sufficient ground to enlarge the accused on bail – Prosecutrix made allegations against the concerned accused and it becomes amply clear from the plain reading of the complaint as well as the testimony of the prosecutrix that accused persons had indeed participated in the gang rape – High Court erred in not considering the basic facts while considering the prayer for bail – Court framed charges, prima facie discloses the possibility and reasonable suspicion of the accused prima facie culpability – Impugned order granting bail not only bereft of material particulars which would justify grant of bail, but seems that the High Court got swayed on the ground of delay and the video having not been recovered during the course of investigation and gave a complete go by to the allegation made in the FIR and statement recorded as also the testimony of the prosecutrix before the court – Thus, the order of the High Court set aside – Penal Code, 1860 – ss. 376D, 384, 506 – Protection of Children from Sexual Offences Act, 2012 – s. 3 to 6 – Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 – s. 3(2)(v) – Information Technology Act, 2000 – s. 66. [Paras 17, 20-21, 23-28] Bail – Grant of – Parameters to be considered:

Headnote

Held: Grant of bail is a discretionary relief – Such discretion is to be exercised in a judicious manner and not as a matter of course – Grant of bail is dependant upon contextual facts of the matter and may vary from case to case – There cannot be any exhaustive parameters for considering the application for grant of bail – However, while granting bail the court has to keep in mind the nature of accusations, severity of the punishment, if the accusations entails a conviction and the nature of evidence in support of the accusations – Reasonable apprehensions of the witnesses being tempered with or the apprehension of there being a threat for the complainant – Prima facie satisfaction of the Court in support of the charge – Frivility of prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail. [Para 12]

Bail – Cancellation of grant of bail – Factors to be considered: Held: There should be presence of cogent and overwhelming circumstances – 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 – Each case would have unique facts peculiar to its own and the same would hold key for adjudication of bail matters including cancellation thereof – There may be circumstances where interference to or attempt to interfere with the course of administration of justice or evasion or attempt to evade to due course of justice are abuse of concession granted to the accused in any manner. [Paras 13, 16] Delay/laches – Delay of more than one year in lodging an FIR – Effect of, on the prosecution case:

Held: Delay by itself would not be fatal to the prosecution case and the criminality attached to the incident would not disappear or get extinguished by virtue of such delay – It all depends upon facts that may unfold in given circumstances and same would vary from case to case – If the prosecution attempts to improvise its case stage by stage and step by step during the interregnum period, in such circumstances accused would be justified in contending that delay was fatal.

LIST OF CITATIONS AND OTHER REFERENCES

JUDGMENT / ORDER OF THE SUPREME COURT JUDGMENT ARAVIND KUMAR, J. 1. 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/-

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