MS. X versus THE STATE OF MAHARASHTRA AND ANOTHER on 17 March 2023

SUPREME COURT REPORTS

[2023] 2 S.C.R.

MS. X

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v.

THE STATE OF MAHARASHTRA AND ANOTHER

(Criminal Appeals Nos. 822-823 of 2023)

BMARCH 17, 2023

[A. S. BOPANNA AND HIMA KOHLI, JJ.]

Code of Criminal Procedure, 1973 – ss. 437,438 and 439 –Penal Code, 1860 – ss. 354,354-B, 376 and 506 – Anticipatorybail – Cancellation of – A complaint filed by the appellant-Cprosecutrix, against the respondent No.2-accused, who lured herunder the garb of offering some modelling assignments, raped herin a hotel room where she was staying – Initially, the FIR wasregistered u/ss. 354, 354-B and 506 of the IPC, and later, on thesupplementary statement of the appellant being recorded, the offenceDu/s.376 was added to the FIR – The High Court granted anticipatorybail to the respondent No. 2 on the grounds that the appellant hadimproved her statement – On appeal, held: The nature and gravityof the alleged offence and the financial stature, position andstanding of the accused vis-à-vis the appellant was disregardedand ignored by the High Court – There was sufficient material inEthe FIR that would prima facie attract the provision of s. 376, IPC –Despite the appellant having filed an application for interventionin the petition for anticipatory bail moved by the Respondent No.2before the High Court, she was not afforded a hearing – There isno other witness except for the appellant herself, High Court shouldFhave granted opportunity of hearing – Grant of anticipatory bailcannot be sustained – Order of the High Court quashed and setaside.

Disposing of the appeals, the Court

Held: 1. The nature and gravity of the alleged offence hasGbeen disregarded. So has the financial stature, position andstanding of the accused vis-à-vis the appellant/prosecutrix beenignored. The High Court has granted anticipatory bail in favourof the respondent No. 2/accused in a brief order of threeparagraphs, having been swayed by the “star variations in theHnarration of the prosecutrix” implying thereby that what was originally recorded in the FIR, did not make out an offence ofrape, as defined in Section 375 IPC, which is an erroneousassumption. Even if the first Supplementary statement of theappellant/prosecutrix recorded in the evening hours of 6[th] August,2022, the date on which the FIR had been registered against therespondent No.2/accused in the first half of the same day, hersecond Supplementary statement recorded on 6[th] September,2022 and the Medico-Legal Report of the doctor who hadexamined the appellant/prosecutrix on 8[th] August, 2022, are keptaside for a moment, this Court finds that there was still sufficientmaterial in the FIR that would prima facie attract the provision ofSection 376, IPC. In this Court’s opinion, these factors ought tohave dissuaded the High Court from exercising its discretion infavour of the respondent No.2/accused for granting himanticipatory bail. [Para 22][1131-E-G; 1132-A-B]

2. Another reason that has weighed with this Court forinterfering in the impugned orders is that despite the appellant/prosecutrix having filed an application for intervention in thepetition 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 reflectthe said position. No doubt, the State was present and wasrepresented in the said proceedings, but the right of theprosecutrix could not have been whittled down for this reasonalone. In a crime of this nature where ordinarily, there is no otherwitness except for the prosecutrix herself, it was all the moreincumbent for the High Court to have lent its ear to the appellant.Such an approach tantamounts to failure to recognize the right ofthe prosecutrix to participate in the criminal proceedings thatwould include a right to oppose the application for anticipatorybail moved by the accused. The appellant/prosecutrix having beendenied a meaningful hearing when the first impugned order ofanticipatory bail granted in favour of the respondent No. 2/accusedwas confirmed by the second impugned order, is an additionalfactor that has prevailed with this Court to interfere in theimpugned orders. [Paras 23, 25][1132-B-D; 1133-F-G]

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SUPREME COURT REPORTS

[2023] 2 S.C.R.

ASushila 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.BState of Uttar Pradesh and Another (2009) 14 SCC286 : [2009] 6 SCR 1030; Kalyan Chandra Sarkar v.Rajesh Ranjan Alias Pappu Yadav and Another (2004)7 SCC 528; Myakala Dharmarajam and Others v. Stateof Telangana and Another (2020) 2 SCC 743; PradeepRam v. State of Jharkhand and Another (2019) 17 SCCC326 : [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 SinghBhat v. NCT, Delhi and Another (2001) 4 SCC 280 :[2001] 2 SCR 684; Ram Govind Upadhyay v.DSudarshan Singh and Others (2009) 14 SCC 286 :[2009] 6 SCR 1030; State of Maharashtra v. Ritesh(2001) 4 SCC 224 : [2001] 2 SCR 438; PanchananMishra v. Digambar Mishra and Others (2005) 3 SCC143 : [2005] 1 SCR 484; Vijay Kumar v. Narendra andEOthers (2002) 9 SCC 364; Anwari Begum v. SherMohammad and Another (2005) 7 SCC 326 : [2005] 3Suppl. SCR 287; Neeru Yadav v. State of Uttar PradeshAnd 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 vFRajesh Kumar Alias Polia and Another (2020) 2 SCC118 : [2019] 14 SCR 529; Supreme Bhiwandi WadaManor Infrastructure Private Limited v. State ofMaharashtra And Another (2021) 8 SCC 753; JagjeetSingh And Others v. Ashish Mishra Alias Monu AndGAnother (2022) 9 SCC 321 – referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNos. 822-823 of 2023.

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From the Judgment and Order dated 21.09.2022 and 07.10.2022of the High Court of Judicature at Bombay in ABA No. 2594 of 2022.

R. Basant, Sr. Adv., Subodh Kr. Pathak, Abhijeet Chatterjee,Shahsi Ranjan, Pawan Kumar Sharma, Gautam Barua, Akash Swami,Ravi P. Wadhwani, Advs. for the Appellant.

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Sanjay K Hedge, Sr. Adv., Dharmendra Kumar Sinha, AkhileshSingh, Ms. Neetu Singh, Arun Adhlakha, Nitin Lonkar, SiddharthDharmadhikari, Aaditya Aniruddha Pande, Bharat Bagla, Amit Singh,Lokesh Dutt Sharma, Advs. for the Respondents.

The Judgment of the Court was delivered by F

HIMA KOHLI, J.

1. Leave granted.

2. The appellant/prosecutrix, who claims to have been exposed tothe horrors of the notorious casting couch syndrome, at the hands of therespondent No.2/accused herein, is aggrieved by the orders dated21[st] September, 2022[1] and 07[th] October, 2022[2], passed by the High Courtof Judicature at Bombay in exercise of its Criminal Appellate jurisdiction G

1 First Impugned Order:

2 Second Impugned Order

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Aallowing the anticipatory bail application[3] filed by the respondent No.2/accused in connection with FIR[4] filed by her with the MIDC PoliceStation, Mumbai. Initially, the FIR was registered under Sections 354,354-B and 506 of the Indian Penal Code[5]. Subsequently, on thesupplementary statement of the appellant/prosecutrix being recorded,offence under Section 376 was added to the subject FIR. By the firstBimpugned order, the High Court granted pre-arrest bail to the respondentNo. 2/accused as an interim measure subject to certain conditions andon 7[th] October 2022, confirmed the said order.

FACTS OF THE CASE

C3. The facts of the case as are relevant for deciding the presentappeals are briefly stated:- 3.1 The appellant/prosecutrix is a Model by profession. She fileda complaint with P.S. MIDC, Mumbai against the respondent No.2/accused in the late hours of 5[th] August, 2022, when she dialled ‘100’ toDcall the police alleging that the respondent No.2/accused, a businessman,who lured her under the garb of offering her some modelling assignmentsand then forced himself upon her and raped her in a hotel room whereshe was staying.

3.2 The relevant portion of the appellant’s statement recorded inEthe early hours of 06[th] August, 2022 at the MIDC Police Station, Mumbaiis extracted hereinbelow :- “……Thereafter we discussed about our work, thereafter Jigneshtold me that he wants to talk with me some personal therefore hetold me to go in room. Then as Jignesh is going to give me jobFtherefore at about 11.15 pm in the night I took him in the hotelroom. Then I asked him water but he refused. Then he told methat, “xxx tu jo field me kaam kart i hai, wo field me to tumhepata hai kya kya karna padta hai” (xxx you know that, whatthings needs to do in the field you are working), at that time I toldhim to speak clearly. Then he told me that, “xxx kuchh pane keGliye kuchh khona padata hai” (xxx one has to sacrificesomething to get something). At that time I told him, that I havecleared you about the same on very first day. At that time he told 3 Anticipatory Bail Application No. 2594 of 2022

4 CR FIR No. 915 of 2022 registered on 06th August, 2022

5 For short ‘the IPC’

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MS. X v. THE STATE OF MAHARASHTRA AND ANOTHER

me that, you have to compromise with me, I have good contacts.At that time I clearly refused him. Thereafter he got up frombed and pushed me on bedand he touched my breast andbackside. Then I started shouting and then he held my neck andthreatened to kill me and then he opened his shirt buttons and hetried to open my clothes. In between my maxi was torn near theneck and breast and then he took out his private part with hishand and he starteddoing intimacy with me and then I pushedhim forcibly and went out from the room and then I got down tothe reception from staircase and called the police on 100 number’’

3.3 Thereafter, in the evening of 06[th] August, 2022 itself, asupplementary statement of the appellant/prosecutrix was recorded,relevant portion whereof is as under :-

“……Then he got up from the bed and pushed me on the bed bypushing me hard. This time he touched my chest and my rear andlifted my dress which I was wearing. As I screamed and beggedhim not to do this to me, he grabbed me by the throat and threatenedto kill me. At that time my whole body was shivering, I wascompletely scared, I had no idea. He then unbuttoned his shirt,removed his pants and tried to remove my clothes. There was atussle between us and my maxi was torn near my neck and nearmy chest. During the tussle, he pulled my knicker down and pulledout his private part with his hand and tried to insert in my privatepart. Then I pushed him hard and I opened the door and ran outside,then he told, “if you say something about this by going outsidethen I will kill you and your family.” He was giving such threatthen also I came out from the room……”

3.4 It is the case of the appellant/prosecutrix that to favour therespondent No. 2/accused, the police had intentionally removed a vitalportion of her statement while recording the FIR and had only mentionedthe offences under Sections 354, 354-B and 506 IPC; that the policedeliberately did not take the appellant/prosecutrix for a medicalexamination even on her alleging commission of rape by the respondentNo.2/accused; that though the police came to the Hotel on a call beingmade by the appellant/prosecutrix at around 11:00 p.m. on 5[th] August,2022 and had taken her and the respondent No. 2/accused to the PoliceStation, she was made to wait from 11:30 p.m. till 05:00 a.m. on 6[th]August, 2022 and during that period, she was being constantly pressurized A

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Ato settle the matter with the respondent No. 2/accused; that when theappellant/prosecutrix did not agree for any settlement, the police wascompelled to register the FIR but even then, they had watered down theoffences to favour the respondent No. 2/accused.

SEQUENCE OF EVENTS :B[[th]]

4. On 6[[th]] August, 2022 itself, at noon time, the police produced therespondent No. 2/accused before the Court of the Additional ChiefMetropolitan Magistrate[6], XXII Court, Andheri, Mumbai and sought hisjudicial custody which was allowed by the learned ACMM upto20[th] August, 2022. Contemporaneously, the respondent No.2/accusedCfiled an application for bail[7] in the Court of the learned ACMM whichwas opposed by the Additional Public Prosecutor appearing for the Stateon the ground that the offence is non- bailable; the statement of theprosecutrix was yet to be recorded under S. 164 of the Code of CriminalProcedure[8], the investigation was still in progress; and if released, therespondent No.2/accused may tamper with the evidence. However, theDsaid application was allowed by the learned ACMM vide order dated06[th] August, 2022.

5. Aggrieved by the casual approach allegedly adopted by theinvestigating team, the appellant/prosecutrix approached the DeputyCommissioner of Police of the area, which as per her, activated theEpolice and on 7[th] August, 2022, they called her for recording her furtherstatement. Based on the said statement, the offence under Section 376IPC was added in the FIR . Thus, the FIR was registered under Sections376, 354, 354-B, 506 and 506(2), IPC. On the same day, the investigatingofficer addressed a letter to the appellant/prosecutrix requesting her toFpresent herself for her medical examination on 8[th] August, 2022.Accompanied by a lady Police Officer the appellant/prosecutrix wastaken to the Municipal Corporation of Greater Mumbai Hospital on08[th] August, 2022 where the doctor conducted her medical examinationand recorded the following :- G“As per history given by the survivor 25 yrs. Female were athotel Silver INN at Marol Andheri West. Survivor met JigneshMehta 48 yrs. Male around time 11.15 pm. 5.8.2022.

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6 For short ‘ACMM’

7 Bail Application No.2279/BA/2022

8 For short ‘CrPC’.

Jignesh touched survivor on her private parts, breast,abdomen he held survivor’s neck and threatened that hewill kill her removed own clothes and survivor’s clothesforcefully and inserted his genitalia penis in the vulvo once.After that survivor pushed Jignesh and ran away from room.

There was history of sexual assault physical assault verbalassault….”

5.1. Dissatisfied with the manner in which the Investigating Officerwas conducting the investigation, the appellant/prosecutrix states thatshe submitted an application dated 10.08.2022 to the AdditionalCommissioner of Police, West Region imploring him to ensure that theinvestigation is carried out properly and the respondent No. 2/accused isarrested.

5.2. On 10[th] August, 2022, the police moved an application beforethe learned ACMM for cancellation of the bail granted to the respondentNo. 2/accused having regard to the fact that the provision of Section376 IPC has been added to the subject FIR vide application dated 8[th]August, 2022. The said application was allowed and vide order dated23[rd] August, 2022, the learned ACMM cancelled the bail granted to therespondent/accused on 6[th] April, 2022.

5.3. On 06[th] September, 2022, the Supplementary Statement ofthe appellant/prosecutrix was recorded by the police wherein she statedas follows :- “…..I straightaway refused to oblige him but he got up from thebed and forcefully pushed me onto the bed. He touched my chestand posterior inappropriately and pulled up posterior the gownworn by me. I screamed and requested him to not to do suchthings with me but he held me by my neck and threatened to killme. At that time out of grave fear I was completely petrified andwas unable to think anything. Thereafter he removed his shirtbuttons, removed his pants and tried to disrobe me. In theensuing scuffle my gown tore near my neck and breasts.During thestruggle he pulled down my nickers, pulled outhis member and penetrated it inside my private part…….”

5.4. On 17[th] September, 2022, the respondent No.2/accused filedan application[9] under Section 438 Cr.P.C. seeking anticipatory bail in9 Anticipatory Bail Application No. 1367 of 2022

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Arespect of the subject FIR before the court of the Learned AdditionalSessions Judge, Borivali Division, Dindoshi (Borivali Division), Goregoan,Mumbai. After noting the submissions made by the respondent No.2/accused, counsel for the State and counsel for the appellant/prosecutrixwho had moved an intervention application in the matter, the learnedAdditional Sessions Judge rejected the anticipatory bail application ofBthe respondent No. 2/accused with the following observations :- “12 It is pertinent to note that in the application filed under section438 of Cr.P.C. the applicant has averred several facts which appearto be aptly unusual and strange. Though the applicant hascontended that he is the victim of honey-trap which was arrangedCby the victim with her friends, in Para. No. 8 of the application theapplicant has contended that he is lifetime member of the ClubEmerald, where he used to go for recreation and fitness. In Para.No. 14 of the application whatever is stated prima-facie does notappear to be acceptable in ordinary human behavioral pattern.DDespite the applicant is claiming himself to be reputed businessmanwho used to visit the Club as lifetime member, he has stated inPara. No. 14 that in the said room of the hotel he was invited bythe prosecutrix and she started kissing him on his neck and cheekand even rubbing her hand on the body of the applicant and whenthe applicant stopped her, prosecutrix became more aggressiveEand suddenly demanded Rs. 15,00,000/- from the applicant.

13. Considering the grounds set up in the application, it is apparentthat the applicant has not disputed that at the time of the incident,he was with the victim in the room of the said hotel. Even if thecontents in the supplementary statement are overlooked, avermentsFin the FIR prima-facie made out the case under section 376 ofIPC. I am, therefore of the view that, in view of the gravity of theoffence and nature of punishment in the light of aforesaidallegations, no prima-facie case is made out by the applicant forgranting bail under section 438 of Cr.P.C…..”

GIMPUGNED ORDERS:

6. The respondent No. 2/accused then approached the High Courtseeking anticipatory bail[10]. By the first impugned order dated 21[st] September, 2022, interim protection was granted to the respondentNo. 2/accused with the following order :- “1. Heard Iearned counsel for the applicant and learned A.P.P.for the State.

2. On 06/08/2022, C.R.No.915 of 2022 came to be registeredwith MIDC Police Station, on the complaint filed by the prosecutrix,who is a model by profession and she reported to the police stationthat her modesty was outraged by the applicant. This resulted ininvocation of Sections 354, 354-B, 506 IPC.

On the very same day, i.e. on 06/10/2022, the prosecutrixgot her supplementary statement recorded and this time, sheelaborated the incident by taking it further and stated that afterinappropriately touching her, she was pushed on the bed and anattempt was made to commit forcible sexual intercourse. In thescuffle that took place, she alleged that her apparel, which shewas wearing was torn and she pushed him out of the door, butwhile leaving the room, he threatened her that she should notdisclose the incident to any one. She came to reception and madea phone call.

After one month i.e. on 06/09/2022, there is furtherimprovement in the version of the prosecutrix, where she statesthat there was penetrative sexual assault and the other narrationthat she pushed him and rang the reception remain same.

3. The applicant was released on bail on an earlier occasion, whenthe subject C.R. invoked Sections 354, 354-B and 506 of I.P.C.,but on the supplementary statement being recorded, Section 376has been added to the subject C.R. and the applicant isapprehending his arrest, since the earlier order operating in hisfavour, has been cancelled. Looking to the star variations inthe narration of the prosecutrix, without judging it’struthfulness, at this stage, these variations itself persuademe to protect the applicant by way of an interim order.Subject to his co- operation in the investigation and the materialthat would come up before the Investigating Officer, further courseof action as to whether his custodial interrogation is necessary,would be ascertained. Hence, the following order:

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:ORDER:

(a) In the event of arrest in connection with C.R.No.915 of 2022registered with MIDC Police Station, applicant-JigneshJashwantrai Mehta shall be released on bail on furnishing P.R.Bond to the extent of Rs.25,000/- with one or two sureties in theBlike amount.

(b) The applicant shall report to the concerned police station from27[th] to 30[th] September, 2022 between 2.00 p.m. to, 5.00 p.m.

(c) The applicant shall not directly or indirectly make anyinducement, threat or promise to any person acquainted with theCfacts of the case so as to dissuade him from disclosing the factsto Court or any Police Officer and shall not tamper with evidence.

List the application on 07/10/2022.”

6.1. On coming to know of the passing of the aforesaid order, theDappellant/prosecutrix filed an application for intervention[11] before theHigh Court. By the second impugned order dated 7[th] October 2022, theBail application moved by the respondent No.2/accused was allowedwith the following order :-

“2. Considering the improvement in the version of the prosecutrixand that too coming after a period of more than one month, theEapplicant was protected by interim order he was directed to reportto the Investigating Officer. Accordingly, he has reported to theInvestigating Officer, his medical is conducted and the mobilephone is seized.

3. In the wake of the above, since the applicant has rendered hisFco- operation in the investigation, order dated 21/09/2022 is madeabsolute.”

7. Aggrieved by the aforesaid two orders, the appellant/prosecutrixhas preferred the present appeals wherein notice was issued on 18[th]November, 2022. Appearance was entered on behalf of the respondentGNo. 1 – State and the respondent No. 2/accused before the next date ofhearing and time was granted to file counter affidavits. Counter affidavitshave been filed by the counsel for the respondent No. 1/State and therespondent No. 2/accused.

11 Intervention Application No.17150 of 2022 in Anticipatory Bail ApplicationHNo.2594 of 2022 dated 06.10.2022

ARGUMENTS ADVANCED BY THE LEARNEDCOUNSEL FOR THE PARTIES:

A. COUNSEL FOR THE APPELLANT/PROSECUTRIX

8. Mr. R. Basant, learned Senior Counsel appearing on behalf ofthe appellant/ prosecutrix has urged that while granting anticipatory bail,the High Court has failed to take notice of the nature and gravity of theallegations levelled against the respondent No.2/accused; that whilemaking the observation in the first impugned order that “star variationsin the narration of the prosecutrix, …….itself persuade me to protectthe applicant by way of an interim order”, the High Court failed toappreciate that the allegations recorded in the FIR itself were sufficientto demonstrate commission of offence under Section 376 IPC; that theHigh Court ignored the observations made by the learned AdditionalSessions Judge, Borivalli in the order dated 17[th] September, 2022, whilerejecting the anticipatory bail application of the respondent No.2/accusedto the effect that even if the contents in the supplementary statementsare overlooked, the averments made in the FIR prima facie make out acase under Section 376 IPC; that despite an intervention application[12]filed by the appellant/prosecutrix in the application for anticipatory bail[13]filed by the respondent No. 2/accused before the High Court, she wasnot granted a hearing; that the order granting anticipatory bail to therespondent no. 2/accused falls foul of the settled legal principles requiredto be followed by the Court while considering an application for bail, ashas been spelt out by this Court in several judicial verdicts includingPrasanta Kumar Sarkar v. Ashis Chatterjee And Another[14]; that theHigh Court ignored the fact that the respondent No. 2/accused is awealthy and influential businessman who used his influence to delayregistration of the FIR and having been granted anticipatory bail, is boundto influence the witnesses to the detriment of the appellant/prosecutrix.

B. COUNSEL FOR THE RESPONDENT NO. 2/ACCUSED

9. On the other hand, Mr. Sanjay R Hegde, learned Senior Counselappearing on behalf of the respondent no. 2/accused has defended theimpugned orders and submitted that after the first impugned order waspassed granting interim protection to the respondent No.2/accused, he 12 Intervention Application No. 17150 of 2022 in Anticipatory Bail ApplicationNo. 2594 of 2022

13 ABA NO. 2594 of 202214 (2010) 14 SCC 496

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Awas called for investigation on several dates and had duly cooperatedand reported to the Police Station, as and when called; that he had beenattending the hearings before the learned ACMM, Andheri and the learnedAdditional Sessions Judge, Borivalli on all occasions; that there is no eyewitness to the alleged incident; that the circumstantial evidence and themedical report does not support the allegations levelled by the appellant/Bprosecutrix against the respondent No.2/accused; that there is nojustification to interfere with the order granting anticipatory bail to theaccused, more so, when no supervening circumstances for cancellationof bail have been pointed out by the appellant/prosecutrix or the counselfor the State.CC. COUNSEL FOR THE STATE – RESPONDENT NO. 1

10. Mr. Nitin Lonkar, learned counsel for the State has informedthe Court that a charge-sheet[15] in the instant case was filed before theSessions Court on 21[st] October, 2022 and 25 witnesses have been citedby the prosecution out of which 12 are independent witnesses. The caseDis now listed for arguments on charge on 27[th] July, 2023.

ANALYSIS, INTERPRETATION AND CASE LAWS:

11. We have heard learned counsel for the parties and perusedthe records. As can be gathered from a perusal of the impugned order,Ethe primary ground that had persuaded the High Court to grant interimprotection to the respondent No. 2/accused is that the appellant/prosecutrix tried to improve her version of the incident from what wasfirst recorded in the FIR in the early hours of 06[th] August, 2022, bylevelling additional allegations in her first Supplementary Statementrecorded in the evening on the very same date and in the secondFSupplementary Statement recorded after one month, on 06[th] September,2022. In the words of the High Court, there were “star variations inthe narration of the prosecutrix….”. The aforesaid observation hasbeen reiterated in the second impugned order and noting the fact thatthe respondent No.2/accused had reported to the investigating officer,Ghis medical examination had been conducted and the mobile phone hadbeen seized, the interim order passed earlier, was made absolute[16].

11.1. We propose to take a quick look at the considerations thatought to govern grant of anticipatory bail. There are a line of decisions 15 As sworn in Para 8 of counter affidavit filed by the Investigating Officer H16 Vide second impugned order dated 21st September, 2022

of this court that have underscored the fact that while deciding anapplication for bail, the court ought to refrain from undertaking a detailedanalysis of the evidence, the focus being on the prima facie issuesincluding consideration of some reasonable grounds that would go toshow if the accused has committed the offence or those facts that wouldreflect on the seriousness of the offence. The self- imposed restraint ondelving deep into the analysis of the evidence at that stage is for validreasons, namely, to prevent any prejudice to the case set up by theprosecution or the defence likely to be taken by the accused and to keepall aspects of the matter open till the trial is concluded.

12. In Prasanta Kumar Sarkar’s case (supra), a Division Benchof this Court had highlighted the factors that ought to be borne in mindwhile considering the anticipatory bail application and had stated that :-

“9. We are of the opinion that the impugned order is clearlyunsustainable. It is trite that this Court does not, normally, interferewith an order passed by the High Court granting or rejecting bailto the accused. However, it is equally incumbent upon the HighCourt to exercise its discretion judiciously, cautiously and strictlyin compliance with the basic principles laid down in a plethora ofdecisions of this Court on the point. It is well settled that, amongother circumstances, the factors to be borne in mind whileconsidering an application for bail are:

(i) whether there is any prima facie or reasonable ground to believethat the accused had committed the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released onbail;

(v) character, behaviour, means, position and standing of theaccused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being influenced;and

(viii) danger, of course, of justice being thwarted by grant of bail.

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A[See State of U.P. through CBI v. Amarmani Tripathi[17],Prahlad Singh Bhati v. NCT, Delhi and Another[18]and RamGovind Upadhyay v. Sudarshan Singh and Others[19]] “

13. In Masroor v. State of Uttar Pradesh And Another[20],speaking for the Division Bench, Justice D.K. Jain observed that courtsBought to refrain from mechanically granting bail and absence of relevantconsiderations will make such an order susceptible to interference. Para13 of the said order is relevant and is reproduced herein below :- “13. ……Though at the stage of granting bail an elaborateexamination of evidence and detailed reasons touching the meritCof the case, which may prejudice the accused, should be avoided,but there is a need to indicate in such order reasons for primafacie concluding why bail was being granted particularly wherethe accused is charged of having committed a serious offence.

(See also State of Maharashtra v. Ritesh[21], Panchanan MishraDv. Digambar Mishra And Others[22], Vijay Kumar v. Narendraand Others[23]and Anwari Begum v. Sher Mohammad AndAnother[24])”

[Also refer : Neeru Yadav v. State of Uttar Pradesh AndAnother[25]; Anil Kumar Yadav v. State (NCT Of Delhi) AndEAnother[26]and Mahipal v Rajesh Kumar Alias Polia AndAnother[27]]

14. Stressing on the necessity to look into the earlier orders wherethe bail applications of the accused have been rejected, this Court inKalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav AndAnother[28]held thus :-F

17 (2005) 8 SCC 2118 (2001) 4 SCC 28019 (2002) 3 SCC 59820 (2009) 14 SCC 28621 (2001) 4 SCC 224G22 (2005) 3 SCC 14323 (2002) 9 SCC 36424 (2005) 7 SCC 32625 (2014) 16 SCC 50826 (2018) 12 SCC 12927 (2020) 2 SCC 118H28 (2004) 7 SCC 528

“12. In regard to cases where earlier bail applications have beenrejected there is a further onus on the court to consider thesubsequent application for grant of bail by noticing the grounds onwhich earlier bail applications have been rejected and after suchconsideration if the court is of the opinion that bail has to be grantedthen the said court will have to give specific reasons why in spiteof such earlier rejection the subsequent application for bail shouldbe granted.”

15. In Sushila Aggarwal and Others v. State (NCT of Delhi)And Another[29], a Constitution Bench comprising of five Judges wasconfronted with conflicting views of different Benches of varying strengthon the following two questions framed for consideration :- “(i) Whether the protection granted to a person under Section 438CrPC should be limited to a fixed period so as to enable the personto surrender before the trial court and seek regular bail.

(ii) Whether the life of an anticipatory bail should end at the timeand stage when the accused is summoned by the court.”

After an extensive discussion, the Constitution Bench distilled theLaw and answered the above reference in para 91 in the followingwords:- “91.1. Regarding Question 1, this Court holds that the protectiongranted to a person under Section 438 CrPC should not invariablybe limited to a fixed period; it should enure in favour of the accusedwithout any restriction on time. Normal conditions under Section437(3) read with Section 438(2) should be imposed; if there arespecific facts or features in regard to any offence, it is open forthe court to impose any appropriate condition (including fixed natureof relief, or its being tied to an event), etc.

91.2. As regards the second question referred to this Court, it isheld that the life or duration of an anticipatory bail order does notend normally at the time and stage when the accused is summonedby the court, or when charges are framed, but can continue till theend of the trial. Again, if there are any special or peculiar featuresnecessitating the court to limit the tenure of anticipatory bail, it isopen for it to do so.”

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1128SUPREME COURT REPORTS

A16. In the light of the answers given to the Reference, theConstitution Bench went on to clarify the factors that would be requiredto be kept in mind while dealing with applications moved under Section438 CrPC and observed that :- “92.3. Nothing in Section 438 CrPC, compels or obliges courts toBimpose conditions limiting relief in terms of time, or upon filing ofFIR, or recording of statement of any witness, by the police, duringinvestigation or inquiry, etc. While considering an application(for grant of anticipatory bail) the court has to consider thenature of the offence, the role of the person, the likelihoodof his influencing the course of investigation, or tamperingCwith evidence (including intimidating witnesses), likelihoodof fleeing justice (such as leaving the country), etc……

92.4. Courts ought to be generally guided by considerations suchas the nature and gravity of the offences, the role attributed to theapplicant, and the facts of the case, while considering whether togrant anticipatory bail, or refuse it. Whether to grant or not is amatter of discretion; equally whether and if so, what kind of specialconditions are to be imposed (or not imposed) are dependent onfacts of the case, and subject to the discretion of the court.

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92.6. An order of anticipatory bail should not be “blanket” in thesense that it should not enable the accused to commit furtheroffences and claim relief of indefinite protection from arrest. Itshould be confined to the offence or incident, for whichapprehension of arrest is sought, in relation to a specific incident.FIt cannot operate in respect of a future incident that involvescommission of an offence.”

[emphasis added]

17. In Myakala Dharmarajam and Others v. State ofTelangana and Another[30], holding that the Appellate Court or a superiorGCourt can set aside an order granting bail if the concerned Court thatgranted bail, failed to consider the relevant factors, this Court observedthat:- H30 (2020) 2 SCC 743

“9. It is trite law that cancellation of bail can be done in caseswhere the order granting bail suffers from serious infirmitiesresulting in miscarriage of justice. If the court granting bail ignoresrelevant material indicating prima facie involvement of the accusedor takes into account irrelevant material, which has no relevanceto the question of grant of bail to the accused, the High Court orthe Sessions Court would be justified in cancelling the bail.”

18. The aforesaid view has been reiterated in Supreme BhiwandiWada Manor Infrastructure Private Limited v. State of MaharashtraAnd Another[31]

19. In Pradeep Ram v. State of Jharkhand And Another[32]calledupon to deal with a situation where an accused had been bailed out in acriminal case in which new offences were added subsequently and aquestion arose as to whether it would be necessary to cancel the bailgranted earlier for taking the accused in custody, a Division Bench ofthis Court took pains to examine the view taken by several High Courtsincluding the High Courts of Rajasthan, Madras, Allahabad and Jammuand Kashmir as also the observations made by this Court in previousdecisions on this aspect and held thus :- “31. In view of the foregoing discussions, we arrive at the followingconclusions in respect of a circumstance where after grant of bailto an accused, further cognizable and non-bailable offences areadded:

31.1. The accused can surrender and apply for bail for newlyadded cognizable and non-bailable offences. In event of refusalof bail, the accused can certainly be arrested.

31.2. The investigating agency can seek order from the courtunder Section 437(5) or 439(2) CrPC for arrest of the accusedand his custody.

31.3 [Ed. : Para 31.3 corrected vide Official Letter dated 31-7-2020.] . The court, in exercise of power under Section 437(5) or439(2) CrPC, can direct for taking into custody the accused whohas already been granted bail after cancellation of his bail. Thecourt in exercise of power under Section 437(5) as well as Section 31 (2021) 8 SCC 753

32 (2019) 17 SCC 326

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A439(2) can direct the person who has already been granted bail tobe arrested and commit him to custody on addition of graver andnon-bailable offences which may not be necessary always withorder of cancelling of earlier bail.

31.4. In a case where an accused has already been granted bail,Bthe investigating authority on addition of an offence or offencesmay not proceed to arrest the ac- cused, but for arresting theaccused on such addition of offence or offences it needs to obtainan order to arrest the accused from the court which had grantedthe bail.”

C20. As can be discerned from the observations made in PradeepRam (supra), addition of a serious offence can be a circumstance wherea Court can direct that the accused be arrested and committed to custodyeven though an order of bail was earlier granted in his favour in respectof the offences with which he was charged when his application for bailwas considered and a favourable order was passed. The recourseDavailable to an accused in a situation where after grant of bail, furthercognizable and non-bailable offences are added to the FIR, is for him tosurrender and apply afresh for bail in respect of the newly added offences.The investigating agency is also entitled to move the Court for seekingthe custody of the accused by invoking the provisions of 437(5)[33] andE439(2)[34] Cr.P.C., falling under Chapter XXXIIII of the Statute that dealswith provisions relating to bails and bonds. On such an application beingmoved, the Court that may have released the accused on bail or theAppellate Court/superior Court in exercise of special powers conferredon it, can direct a person who has been released on bail earlier, to bearrested and taken into custody.F

21. Coming back to the facts of the instant case, it is not in disputethat when the respondent No. 2/accused moved an application for bail[35]before the learned ACMM on 6[th] August, 2022, the offences mentionedin the FIR were under Sections 354, 354-B and 506 IPC. Bail was grantedto him on the same day primarily on the ground of non-compliance ofG33 Section 437(5) - Any Court which has released a person on bail under sub-section (1) or sub- section (2), may, if it considers it necessary so to do, direct thatsuch person be arrested and commit him to custody.34 Section 439(2) - A High Court or Court of Session may direct that any personwho has been released on bail under this Chapter be arrested and commit him tocustody.H35 Bail Application No. 2279/BA/2022 36 Dated 10th August, 2022

Section 41-A CrPC. Subsequently, the offence under Section 376 IPCwas added to the same FIR and the crime was escalated to offencesunder Sections 376, 354, 354-B and 506(2) of IPC. On this turn of events,the State moved an application seeking cancellation of bail[36] granted tothe respondent No. 2/accused stating inter alia that initially, he wascharged under Sections 354, 354-B and 506 IPC, but, during the courseof recording the statement of the appellant/prosecutrix, the allegationslevelled made out an offence under Section 376 which had to be addedto the subject FIR and therefore, the bail granted in his favour needed tobe cancelled and he was required to be taken into custody. The saidapplication was allowed by the learned ACMM vide order dated23[rd] August, 2022. This made the respondent No.2/accused approachthe Court of the learned Additional Sessions Judge, Borivalli seekinganticipatory bail. By a well-reasoned order, the said application wasrejected and the plea taken by him that he was a victim of honeytrap,was disbelieved. The contention of the respondent No. 2/accused thatthe appellant/prosecutrix had been improving her version in thesupplementary statements[37] was also considered and rejected and it wasobserved that even if the said statements were to be overlooked, therewas sufficient prima facie material in the FIR to have made out anoffence under Section 376, IPC.

22. Surprisingly, none of the aforesaid aspects have been touchedupon in both the impugned orders. The nature and gravity of the allegedoffence has been disregarded. So has the financial stature, position andstanding of the accused vis-à-vis the appellant/prosecutrix been ignored.The High Court has granted anticipatory bail in favour of the respondentNo. 2/accused in a brief order of three paragraphs, having been swayedby the “star variations in the narration of the prosecutrix” implyingthereby that what was originally recorded in the FIR, did not make outan offence of rape, as defined in Section 375 IPC, which is an erroneousassumption. Even if the first Supplementary statement of the appellant/prosecutrix recorded in the evening hours of 6[th] August, 2022, the dateon which the FIR had been registered against the respondent No.2/accused in the first half of the same day, her second Supplementarystatement recorded on 6[th] September, 2022 and the Medico-Legal Reportof the doctor who had examined the appellant/prosecutrix on 8[th] August, 36 Dated 10th August, 2022

37 Dated 06th August, 2022 and 06th September, 2022

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A2022, are kept aside for a moment, we find that there was still sufficientmaterial in the FIR that would prima facie attract the provision of Section376, IPC. In our opinion, these factors ought to have dissuaded the HighCourt from exercising its discretion in favour of the respondent No.2/accused for granting him anticipatory bail.

B23. Another reason that has weighed with this Court for interferingin the impugned orders is that despite the appellant/prosecutrix havingfiled an application for intervention[38] in the petition for anticipatory bailmoved by the respondent No.2/accused before the High Court, she wasnot afforded a hearing. At least a perusal of the second impugned orderdoes not reflect the said position. No doubt, the State was present andCwas represented in the said proceedings, but the right of the prosecutrixcould not have been whittled down for this reason alone. In a crime ofthis nature where ordinarily, there is no other witness except for theprosecutrix herself, it was all the more incumbent for the High Court tohave lent its ear to the appellant.D

24. Our view is in line with the observations made by a three-Judges Bench of this Court in Jagjeet Singh And Others v. AshishMishra Alias Monu And Another[39]wherein speaking for the Bench,Justice Suryakant made the following pertinent observations relating tothe victim’s right to be heard and alluding to the recommendations madeEby the Law Commission of India in its 154[th] Report that highlighted “theright of the victim or his/her legal representative to be impleadedas a party in every criminal proceedings where the charges arepunishable with 7 years’ imprisonment or more”, observed thus :- “19. It was further recommended that the victim be armed with aFright to be represented by an advocate of his/her choice, and ifhe/she is not in a position to afford the same, to provide an advocateat the State’s expense. The victim’s right to participate in criminaltrial and his/her right to know the status of investigation, and takenecessary steps, or to be heard at every crucial stage of thecriminal proceedings, including at the time of grant or cancellationGof bail, were also duly recognised by the Committee. Repeatedjudicial intervention, coupled with the recommendations made fromtime to time as briefly noticed above, prompted Parliament to bringinto force the Code of Criminal Procedure (Amendment) Act, 38 IA No. 17150 of 2002H39 (2022) 9 SCC 321

2008, which not only inserted the definition of a “victim” underSection 2(wa) but also statutorily recognised various rights of suchvictims at different stages of trial.

20. It is pertinent to mention that the legislature has thoughtfullygiven a wide and expansive meaning to the expression “victim”which “means a person who has suffered any loss or injurycaused by reason of the act or omission for which the accusedperson has been charged and the expression “victim” includeshis or her guardian or legal heir”.

25. It must be remembered that in the present case, the machineryof criminal justice has been set into motion by none other than theappellant/prosecutrix herself. She was the one who had dialled ‘100’number from the reception area of the Hotel where the crime had allegedlytaken place. She was the one who had approached senior officers in thepolice hierarchy complaining of the apathy and inertia adopted by theinvestigating officers in her case. Notably, she had moved an interventionapplication in the anticipatory bail application moved by the respondentNo.2/accused before the learned Additional Sessions Judge and as isreflected from the order passed, her counsel was granted a hearingwhereafter the said application was rejected. However, when a similarapplication for intervention[40] was moved by the appellant/prosecutrixbefore the High Court in the anticipatory bail application moved by therespondent No.2/accused, it appears that heed was not paid to the pleastaken by her though her counsel’s presence does find mention in theorder sheet. We are constrained to note that such an approachtantamounts to failure to recognize the right of the prosecutrix toparticipate in the criminal proceedings that would include a right to opposethe application for anticipatory bail moved by the accused. The appellant/prosecutrix having been denied a meaningful hearing when the firstimpugned order of anticipatory bail granted in favour of the respondentNo. 2/accused was confirmed by the second impugned order, is anadditional factor that has prevailed with this Court to interfere in theimpugned orders.

CONCLUSION:

26. For the aforesaid reasons, the two impugned orders dated21[st] September, 2022 and 07[th] October, 2022, granting anticipatory bail A

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Ato the respondent No. 2/accused, cannot be sustained and are quashedand set aside. The bail bonds of the respondent No.2/accused arecancelled.

27. We, however, hasten to add that this Court has not expressedany opinion on the merits of the case. The chargesheet has already beenBfiled in the case. If the respondent No.2/accused moves an applicationunder Section 439 Cr.P.C. before the appropriate Court, the same shallbe considered on its own merits and in accordance with law, uninfluencedby the observations made hereinabove.

28. The appeals are disposed of on the above terms.CDIRECTIONS TO THE REGISTRY

29. Having regard to the sensitivity of the allegations levelled inthe matter and the nature of the offence complained of, it is imperativeto protect the identity of the appellant/prosecutrix. She has been identifiedas “Ms. X” in these proceedings. In the instant case, the Registry isDdirected to take immediate steps to redact the name of the appellant/prosecutrix from the records. Henceforth, the Registry shall ensure thatin sensitive matters like the present one, if the name of the prosecutrix isrevealed in the petition, the same is returned to the learned counsel forredacting the name before the matter is cleared for being placed beforeEthe Court for appropriate orders.

Ankit Gyan

(Assisted by : Aarsh Choudhary, LCRA)

Appeals disposed of.

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