MS. X versus THE STATE OF TELANGANA AND ANR. on 17 May 2018

466

[2018] 4 S.C.R. 466

SUPREME COURT REPORTS

[2018] 4 S.C.R.

A

MS. X

v.

THE STATE OF TELANGANA AND ANR.

(Criminal Appeal No. 000716 of 2018)

B

MAY 17, 2018

[DIPAK MISRA, CJI, A. M. KHANWILKAR ANDDR. D.Y. CHANDRACHUD, JJ.]

Bail:

C

Regular bail – u/s. 439 CrPC.- Granted in a case involvingoffences u/ss. 376, 342, 493, 506 and 354(C) of IPC – Cancellationof – Held: There is no cogent material to indicate that the accusedhad been guilty of conduct which would warrant his being deprivedof his liberty – No supervening circumstance made out to warrantcancellation of bail – Code of Criminal Procedure, 1973 – s. 439.

D

On the complaint of the appellant against respondent-accused, charge-sheet was filed for offences punishable u/ss. 376,343, 493, 506 and 354(C) of IPC. Accused was grantedanticipatory bail, which was later cancelled on the ground thataccused had not disclosed that he was an accused in 2G SpectrumEcase. Thereafter, application for regular bail u/s. 439 CrPC wasallowed directing to release the accused on bail on executing apersonal bond of Rs.50,000/-. Hence the present appeal.

Disposing of the appeal, the Court

FHELD: 1. Even going by the case of the complainant, therewas intimate contact between the complainant and the accusedover a period of nearly six months between July 2015 and January2016. Even according to the complainant, she visited the accusedon two occasions in Hyderabad and stayed with him. The ticketsfor her travel from Mumbai were borne by the accused. TheGcomplaint was filed nearly a year thereafter in January 2017. Thesecircumstances do bear upon the defence that there was aconsensual relationship between the complainant and the accused.[Para 13] [475-E-F]

2. The accused had the benefit of an order granting himHanticipatory bail. The grant of anticipatory bail was cancelled466

principally on the ground that he had not disclosed the pendencyof a prosecution against him in the 2G Spectrum case. The Courthas been informed during the course of the hearing that the saidprosecution has ended in an acquittal. Regular bail was grantedby the High Court on 17 November 2017 in the present case.The second FIR which was lodged on 22 November 2017 is not asupervening circumstance of such a nature as would warrant thecancellation of the bail which was granted by the High Court. It isa settled principle of law that bail once granted should not becancelled unless a cogent case, based on a supervening eventhas been made out. [Para 14][476-B-C, D]

3. No supervening circumstance has been made out towarrant the cancellation of the bail. There is no cogent materialto indicate that the accused has been guilty of conduct whichwould warrant his being deprived of his liberty. [Para 15][476-E]

4. However, the quantum of the personal bond fixed by theHigh Court should be enhanced in the facts and circumstances ofthe case. Accordingly, the quantum of the personal bond shallstand enhanced to Rs 10 lakhs. [Para 16][476-F]

Kanwar Singh v. State of Rajasthan (2012) 12 SCC180 : [2012] 10 SCR 847; Neeru Yadav v. State of UP(2016) 15 SCC 422 : [2015] 10 SCR 802 ; State ofBihar v. Rajballav Prasad (2017) 2 SCC 178 :[2016] 9 SCR 652 ; Dolatram v. Stateof Haryana(1995) 1 SCC 349 : [1994] 6 Suppl. SCR 69 ; CentralBureau of Investigation, Hyderabad v. SubramaniGopalakrishnan (2011) 5 SCC 296 : [2011] 5 SCR824 ; Dataram Singh v. State of Uttar Pradesh2018 (2) SCALE 285 – referred to.

A

B

C

D

E

F

G

H

ACRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 716 of 2018.

From the Judgment and Order dated 17.11.2017 of the High Courtof Judicature at Hyderabad in CRL P No. 10602 of 2017.

Karuna Nundy, Raunak Nayak, Avinesh Bhardwaj, Ms. AparnaBBhat, Mayank Sapra, Advs for the Appellant.

Mukul Rohatgi, Sidharth Luthra, Sr. Advs, R. N. Karanjawala,Sandeep Kapur, Mahesh Aggarwal, Deb Malya Banerjee, Shivek Trehan,Vir Inderpal Singh Sandhu, A. S. Aman, Ms. Niharika Karanjawala,Ms. Apoorva Pandey, Abhimanshu Dhyani, Mayank Aggarwal, AnkurCSehgal, Kartik Bhatnagar, Aviral Kapoor, Ms. Iara Khalid, M/s.Karanjawala & Co., S. Udaya Kumar Sagar, Mrityunjai Singh, Advsfor the Respondents.

The Judgment of the Court was delivered by DDR. D. Y. CHANDRACHUD, J. 1. Leave granted.

2. Bail was granted to the second respondent on 17 November2017 by a learned single Judge of the High Court of Judicature atHyderabad for the States of Telangana and Andhra Pradesh. The orderforms the subject matter of the present appeal.

E

E3. The second respondent (“the accused”) is a film producer, basedin Mumbai. The complainant alleged, in a complaint which she filed on10 January 2017, that in June 2014 she had enrolled in an institute whichimparts training in film acting. She resided in a rented apartment inMumbai. The complainant states that she became acquainted with theniece of the accused, who was to be married in December 2014. In theFcourse of her visits to the home of her friend, the complainant becameacquainted with the accused, who was producing a Hindi film. In July2015 the accused is alleged to have invited himself to the home of thecomplainant. The accused and the complainant had wine. Thecomplainant alleges that she felt dizzy after a few sips, and the accusedGforced himself upon her. It was after she regained senses that she realisedthat the accused had raped her. The accused left her apartment andwhen she called him, it is alleged that he threatened her of being inpossession of her nude photographs and of his connections with theunderworld. The complainant alleged that the accused continue to have H

a relationship with her; that he would come to her home in the hours ofnight and compel her to have sex with him, against her wishes. On 12September 2015 it is alleged that he invited her to join him in Hyderabadwhere he was shooting a film. The complainant stayed with the accusedin a hotel, when he is alleged to have raped her. She alleges that shevisited Hyderabad again on October 12, 2015 and stayed with him, whenhe raped her. The complainant claims that she suffers from depressionand had attempted suicide. The complainant alleged that the accusedhad been making false promises of marriage to her and was exploitingher continuously. A complaint was lodged before the Station Officer atPolice Station, Hayathnagar in Hyderabad on 10 January 2017.

4. After investigation, a charge-sheet has been submitted on 6March 2018, for offences punishable under Sections 376, 342, 493, 506and 354 (C) of the Penal Code.

5. The accused was granted anticipatory bail by the FourthAdditional Metropolitan Sessions Judge, Hyderabad by an order dated30 January 2017. The accused had the benefit of that order for a periodof eight months. The order of anticipatory bail was cancelled by theSessions Judge, principally on the ground that the accused had notdisclosed the fact that he had been accused in the 2G Spectrum case(CC No.1 of 2011). The order of cancellation was affirmed by the HighCourt on 5 September 2017, and by this Court on 22 September 2017,though with the clarification that while dealing with the application underSection 439 of the Criminal Procedure Code 1973, the Court shall not beinfluenced by any of the observations made while cancelling anticipatorybail. The accused then moved an application under Section 439 for thegrant of bail in Case Crime 33/2017, registered by the HayathnagarPolice Station for offences punishable under Sections 376, 342, 493, 506and 354 (C) of the Penal Code.

6. The High Court has allowed the application for the grant of bailand has directed that the accused be released on executing a personalbond of Rs 50,000 with two sureties each in a like sum to the satisfactionof the Metropolitan Magistrate. The accused has been directed not toleave the country without the permission of the trial Court. In allowingthe application, the High Court has relied upon the followingcircumstances:

AB

C

DE

F

G

H

A(i) The accused was on anticipatory bail for a period of about eightmonths during the course of which there is no allegation of improperconduct;

(ii) The grant of anticipatory bail was cancelled only on the ground thatthe accused had not revealed his involvement in the 2G SpectrumBcase;(iii) All material witnesses have been examined during the course ofthe investigation and the cell phone recovered from his possessionwas sent to the forensic science laboratory, whose report is awaited;

(iv) The accused was granted regular bail during the pendency of theCtrial in the 2G Spectrum case and there was no allegation of aviolation of the terms on which bail was granted. In the meantime,the accused had travelled abroad with the permission of the Court;

(v) The accused is suffering from medial ailments; D(vi) Though the alleged offences took place between July 2015 andJanuary 2016, the complaint was lodged only on 10 January2017;

(vi) The complainant is an adult, who was cognisant of her actions; and

(vii) The allegation of the complainant that the accused had promised toEmarry her was a matter of trial and whether her consent wasobtained by fraud could only be established during the course ofthe trial.

7. Ms Karuna Nundy, learned counsel appearing on behalf of theappellant submits that:F(i) The allegations in the complaint are of a serious nature involvingrape committed by a person in a position of dominance;

(ii) The accused as a film producer wielded a position of power inrelation to the complainant who was an aspiring actress; G(iii) The lapse of the period between January 2016 (the allegation ofthe complainant being that she was raped between July 2015 andJanuary 2016) and the filing of the complaint in January 2017 mustbe construed in the context of her explanation that the conduct ofthe accused had caused her to attempt suicide on three occasions;

(iv) There is a supervening circumstance which is the filing of a firstinformation report by the complainant on 22 November 2017complaining that while driving her car in New Delhi, an auto hadintentionally obstructed her path and hit her car besides which, hercar has been followed by another vehicle. Besides, an attempt hasbeen made to pressurise the complainant to withdraw her complaintand to “settle” the dispute against the payment of a considerationof Rs 5 crores;

(v) Though a charge-sheet has been filed, the investigation is stillincomplete. The accused has attempted to mislead the investigationby producing a cell phone which belonged to his daughter and notto him.

8. Learned counsel appearing on behalf of the complainant statedthat this is not a case involving a breach of a promise to marry.

9. On the other hand Mr Mukul Rohtagi and Mr Sidharth Luthra,learned senior counsel appearing on behalf of the accused submittedthat:

(i) Bail was granted to the accused on 17 November 2017. TheSpecial Leave Petition was filed on 23 December 2017 and was inobjections of the Registry of this court until it was listed in March2018. The second FIR was lodged on 22 November 2017, fourdays after the grant of bail to somehow set up a case of superveningevent. There is nothing before or after the grant of bail whichreflects on the conduct of the accused;

(ii) Even before the grant of regular bail, the accused had the benefitof an order of anticipatory bail for nearly eight months and the soleground on which it was cancelled was a non-disclosure of theprosecution in the 2G Spectrum case (which has since ended inacquittal);

(iii) After the order of anticipatory bail was cancelled, the accusedspent 58 days in custody, including police and judicial custody andcooperated with the investigation in all respects;

(iv) The allegations of rape span over a period between July 2015 toJanuary 2017, both in Mumbai and Hyderabad. Going by the caseof the complainant, she voluntarily visited the accused in Hyderabad A

B

C

D

E

F

G

Aduring the course of a film shooting and stayed with him in a hotelon two occasions for which tickets were provided by the accused.The relationship between the complainant and the accused was ofa consensual nature and the filing of a complaint nearly one yearafter the last contact between them indicates that it is an after-thought;B(v) The explanation that the complaint was filed a year later becausethe complainant was undergoing treatment and had attempted tocommit suicide has no factual basis and no medical record hasbeen produced; C(vi) The case in the complaint that the accused had betrayed a promiseto marry the complainant is sought to be given up in the course ofthe submission before this Court as well as in the rejoinder whichhas been filed in these proceedings.

(vii) Supervening circumstances, for the cancellation of bail, must be ofsuch a nature as to lead to the conclusion that the accused doesDnot deserve to be at liberty either by reason of a violation of theconditions of bail or due to supervening conduct which bears uponthe misuse of liberty by the accused. No such case is made out.

10. During the course of the hearing, learned counsel appearingEon behalf of the complainant alleged before the Court that her submissionsin assailing the order of the High Court deal with two facets namely:

(i) Whether the High Court was justified in granting bail to the accusedunder Section 439;

(ii) Whether there are any supervening circumstances which wouldFwarrant the cancellation of the bail granted by the High Court.11. While the principles in regard to the grant of bail under Section439 are well settled, we may note for the completeness of the record,that reliance has been placed on behalf of the appellant on the decisionsof this Court in Kanwar Singh v State of Rajasthan[1], Neeru Yadav vGState of UP[2 ]and State of Bihar v Rajballav Prasad[3]. In KanwarSingh, a Bench of two learned Judges of this Court has held thus:

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1 2012 (12() SCC 180 2 2016(15) SCC 422 3 2017(2)SCC 178

“Section 439 of the Code confers very wide powers on the HighCourt and the Court of Sessions regarding bail. But, while grantingbail, the High Court and the Sessions Court are guided by thesame considerations as other courts. That is to say, the gravity ofthe crime, the character of the evidence, position and status ofthe accused with reference to the victim and witnesses, thelikelihood of the accused fleeing from justice and repeating theoffence, the possibility of his tampering with the witnesses andobstructing the course of justice and such other grounds arerequired to be taken into consideration. Each criminal case presentsits own peculiar factual scenario and, therefore, certain groundspeculiar to a particular case may have to be taken into account bythe court.”

In Neeru Yadav, applying the same principle, this Court held that:

“It is a well-settled principle of law that while dealing with anapplication for grant of bail, it is the duty of the Court to take intoconsideration certain factors and they basically are: (i) the natureof accusation and the severity of punishment in cases of convictionand the nature of supporting evidence, (ii) reasonable apprehensionof tampering with the witnesses for apprehension of threat to thecomplainant, and (iii) prima facie satisfaction of the Court in supportof the charge.”

The decision in Rajballav Prasad emphasises that while the libertyof the subject is an important consideration, the public interest in theproper administration of criminal justice is equally important:

“...undoubtedly the courts have to adopt a liberal approach whileconsidering bail applications of accused persons. However, in agiven case, if it is found that there is a possibility of interdictingfair trial by the accused if released on bail, this public interest offair trial would outweigh the personal interest of the accused whileundertaking the task of balancing the liberty of the accused on theone hand and interest of the society to have a fair trial on theother hand. When the witnesses are not able to depose correctlyin the court of law, it results in low rate of conviction and manytimes even hardened criminals escape the conviction. It shakespublic confidence in the criminal justice delivery system. It is thisneed for larger public interest to ensure that criminal justice deliverysystem works efficiently, smoothly and in a fair manner that hasto be given prime importance in such situations.”

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A

12. In a consistent line of precedent this Court has emphasisedthe distinction between the rejection of bail in a non-bailable case at theinitial stage and the cancellation of bail after it has been granted. Inadverting to the distinction, a Bench of two learned Judges of this Courtin Dolatram v State of Haryana[4 ]observed that:

B“Rejection of a bail in a non-bailable case at the initial stage andthe cancellation of bail so granted, have to be considered anddealt with on different basis. Very cogent and overwhelmingcircumstances are necessary for an order directing the cancellationof the bail, already granted. Generally speaking, the grounds forcancellation of the bail, already granted, broadly (illustrative andCnot exhaustive) are: interference or attempt to interfere with thedue course of administration of justice or evasion of attempt toevade the due course of justice or abuse of the concession grantedto the accused in any manner. The satisfaction of the court, onthe basis of material placed on the record of the possibility of theDaccused absconding is yet another reason justifying the cancellationof bail. However, bail once granted should not be cancelled in amechanical manner without considering whether any superveningcircumstances have rendered it no longer conducive to a fair trialto allow the accused to retain his freedom by enjoying theconcession of bail during the trial.”

EThese principles have been reiterated by another two Judge Benchdecision in Central Bureau of Investigation, Hyderabad vSubramani Gopalakrishnan[5] and more recently in Dataram Singh vState of Uttar Pradesh[6]:

“It is also relevant to note that there is difference betweenFyardsticks for cancellation of bail and appeal against the ordergranting bail. Very cogent and overwhelming circumstances arenecessary for an order directing the cancellation of bail alreadygranted. Generally speaking, the grounds for cancellation of bailare, interference or attempt to interfere with the due course ofGadministration of justice or evasion or attempt to evade the duecourse of justice or abuse of the concessions granted to the accusedin any manner. These are all only few illustrative materials. The 4 (1995) 1 SCC 349

5 (2011) 5 SCC 296

6 2018 (2) SCALE 285

H

4 (1995) 1 SCC 349

5 (2011) 5 SCC 296

6 2018 (2) SCALE 285

H

satisfaction of the Court on the basis of the materials placed onrecord of the possibility of the accused absconding is anotherreason justifying the cancellation of bail. In other words, bail oncegranted should not be cancelled in a mechanical manner withoutconsidering whether any supervening circumstances have renderedit no longer conducive to a fair trial to allow the accused to retainhis freedom by enjoying the concession of bail during the trial.”

13. Having considered the rival submissions, we are not at thisstage, inclined to delve into the merits of the allegations at any length inorder to preclude the possibility of our observations influencing the courseof the trial. Since the appeal has been argued at some length before theCourt, we are indicating our reasons, though with a clarification – byway of abundant caution – that our observations are confined to theissues which arise here in an appeal against the order of the High Courtgranting bail under Section 439. Having heard learned counsel, we havearrived at the conclusion that the exercise of discretion by the HighCourt in the present case cannot be faulted. We must, at the outset,note that the case of the complainant is that the accused had (as shedescribed in the complaint) “been making false promises for gettingmarried to her”. This has been reiterated in the charge-sheet which hasbeen submitted on 6 March 2018. At this stage, all that we need to noteis that even going by the case of the complainant, there was intimatecontact between the complainant and the accused over a period of nearlysix months between July 2015 and January 2016. Even according to thecomplainant, she visited the accused on two occasions in Hyderabadand stayed with him. The tickets for her travel from Mumbai were borneby the accused. The complaint was filed nearly a year thereafter inJanuary 2017. This is a relevant circumstance which has been takennote of by the High Court. These circumstances do bear upon thedefence that there was a consensual relationship between the complainantand the accused. Both in her complaint as well as in the charge-sheet,it has been alleged that the accused had falsely promised to marry thecomplainant. However, in the course of the rejoinder, the complainanthas substantially diluted this stand, alleging that:

“That the Petitioner has at every stage – including in argumentsbefore this Hon’ble Court – maintained that the promise to marrywas merely a complete elucidation of the facts and circumstancesof the case.”

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ADuring the course of the hearing, learned counsel appearing onbehalf of the complainant submitted that this is not a case involving abreach of a promise to marry.

14. The accused had the benefit of an order granting himanticipatory bail. The grant of anticipatory bail was cancelled principallyBon the ground that he had not disclosed the pendency of a prosecutionagainst him in the 2G Spectrum case. The Court has been informedduring the course of the hearing that the said prosecution has ended inan acquittal. Regular bail was granted by the High Court on 17 November2017 in the present case. The second FIR which was lodged on 22November 2017 is not, in our view, a supervening circumstance of suchCa nature as would warrant the cancellation of the bail which was grantedby the High Court. The learned counsel appearing on behalf of the accusedhas submitted that the lodging of the second FIR, four days after theorder of bail is merely an attempt to bolster a case based on a superveningevent and that it suffers from vagueness and a complete absence ofDdetails. We are not inclined to make any further observations and leave the matter there. Above all, the Court must bear in mind that it is asettled principle of law that bail once granted should not be cancelledunless a cogent case, based on a supervening event has been made out.We find that to be absent in the present case.

E15. For the above reasons, we hold that the order of the HighCourt allowing the application for bail cannot be faulted. Moreover, nosupervening circumstance has been made out to warrant the cancellationof the bail. There is no cogent material to indicate that the accused hasbeen guilty of conduct which would warrant his being deprived of hisliberty.F

E

16. However, we are of the view that the quantum of the personalbond fixed by the High Court should be enhanced in the facts andcircumstances of the case. We, accordingly direct that the quantum ofthe personal bond shall stand enhanced to Rs 10 lakhs. Complianceshall be effected within two weeks from today. Subject to the aboveGmodification, the appeal shall stand disposed of. Pending IAs, if any,shall also stand disposed of.

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Kalpana K. Tripathy

Appeal disposed of.