Code of Criminal Procedure, 1973 – ss. 437,438 and 439 – Penal Code, 1860 – ss. 354,354-B, 376 and 506 – Anticipatory bail – Cancellation of – A complaint filed by the appellantprosecutrix, against the respondent No.2-accused, who lured her under the garb of offering some modelling assignments, raped her in a hotel room where she was staying – Initially, the FIR was registered u/ss. 354, 354-B and 506 of the IPC, and later, on the supplementary statement of the appellant being recorded, the offence u/s.376 was added to the FIR – The High Court granted anticipatory bail to the respondent No. 2 on the grounds that the appellant had improved her statement – On appeal, held: The nature and gravity of the alleged offence and the financial stature, position and standing of the accused vis-à-vis the appellant was disregarded and ignored by the High Court – There was sufficient material in the FIR that would prima facie attract the provision of s. 376, IPC – Despite the appellant having filed an application for intervention in the petition for anticipatory bail moved by the Respondent No.2 before the High Court, she was not afforded a hearing – There is no other witness except for the appellant herself, High Court should have granted opportunity of hearing – Grant of anticipatory bail cannot be sustained – Order of the High Court quashed and set aside.
Disposing of the appeals, the Court
Held: 1. The nature and gravity of the alleged offence has been disregarded. So has the financial stature, position and standing of the accused vis-à-vis the appellant/prosecutrix been ignored. The High Court has granted anticipatory bail in favour of the respondent No. 2/accused in a brief order of three paragraphs, having been swayed by the “star variations in the narration of the prosecutrix” implying thereby that what was originally recorded in the FIR, did not make out an offence of rape, as defined in Section 375 IPC, which is an erroneous assumption. Even if the first Supplementary statement of the appellant/prosecutrix recorded in the evening hours of 6th August, 2022, the date on which the FIR had been registered against the respondent No.2/accused in the first half of the same day, her second Supplementary statement recorded on 6 th September, 2022 and the Medico-Legal Report of the doctor who had examined the appellant/prosecutrix on 8th August, 2022, are kept aside for a moment, this Court finds that there was still sufficient material in the FIR that would prima facie attract the provision of Section 376, IPC. In this Court’s opinion, these factors ought to have dissuaded the High Court from exercising its discretion in favour of the respondent No.2/accused for granting him anticipatory bail. [Para 22][1131-E-G; 1132-A-B]
2. Another reason that has weighed with this Court for interfering in the impugned orders is that despite the appellant/prosecutrix having filed an application for intervention in the petition for anticipatory bail moved by the respondent No.2/accused before the High Court, she was not afforded a hearing. At least a perusal of the second impugned order does not reflect the said position. No doubt, the State was present and was represented in the said proceedings, but the right of the prosecutrix could not have been whittled down for this reason alone. In a crime of this nature where ordinarily, there is no other witness except for the prosecutrix herself, it was all the more incumbent for the High Court to have lent its ear to the appellant. Such an approach tantamounts to failure to recognize the right of the prosecutrix to participate in the criminal proceedings that would include a right to oppose the application for anticipatory bail moved by the accused. The appellant/prosecutrix having been denied a meaningful hearing when the first impugned order of anticipatory bail granted in favour of the respondent No. 2/accused was confirmed by the second impugned order, is an additional factor that has prevailed with this Court to interfere in the impugned orders. [Paras 23, 25][1132-B-D; 1133-F-G] Sushila Aggarwal and Others v. State (NCT of Delhi) and Another (2020) 5 SCC 1 : [2020] 2 SCR 1 – followed.
Prasanta Kumar Sarkar v. Ashis Chatterjee And Another (2010) 14 SCC 496 : [2010] 12 SCR 1165; Masroor v. State of Uttar Pradesh and Another (2009) 14 SCC
286 : [2009] 6 SCR 1030; Kalyan Chandra Sarkar v. Rajesh Ranjan Alias Pappu Yadav and Another (2004)
7 SCC 528; Myakala Dharmarajam and Others v. State of Telangana and Another (2020) 2 SCC 743; Pradeep Ram v. State of Jharkhand and Another (2019) 17 SCC
326 : [2019] 8 SCR 824 – relied on.
State of U.P. through CBI v. Amarmani Tripathi (2005)
8 SCC 21 : [2005] 3 Suppl. SCR 454; Prahlad Singh Bhat v. NCT, Delhi and Another (2001) 4 SCC 280 : [2001] 2 SCR 684; Ram Govind Upadhyay v.
Sudarshan Singh and Others (2009) 14 SCC 286 : [2009] 6 SCR 1030; State of Maharashtra v. Ritesh (2001) 4 SCC 224 : [2001] 2 SCR 438; Panchanan Mishra v. Digambar Mishra and Others (2005) 3 SCC
143 : [2005] 1 SCR 484; Vijay Kumar v. Narendra and Others (2002) 9 SCC 364; Anwari Begum v. Sher Mohammad and Another (2005) 7 SCC 326 : [2005] 3 Suppl. SCR 287; Neeru Yadav v. State of Uttar Pradesh And Another (2014) 16 SCC 508 : [2014] 12 SCR 453; Anil Kumar Yadav v. State (NCT Of Delhi) And Another (2018) 12 SCC 129 : [2017] 11 SCR 195; Mahipal v Rajesh Kumar Alias Polia and Another (2020) 2 SCC
118 : [2019] 14 SCR 529; Supreme Bhiwandi Wada Manor Infrastructure Private Limited v. State of Maharashtra And Another (2021) 8 SCC 753; Jagjeet Singh And Others v. Ashish Mishra Alias Monu And Another (2022) 9 SCC 321 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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