Wednesday, 16 December 2015

Accused can produce taped phone conversation as defence

The bench of Justices Dipak Misra and P C Pant said the CD qualified to be treated as a document under the Evidence Act. "On a document filed by the defence, endorsement of admission or denial by the public prosecutor is sufficient and defence will have to prove the document if not admitted by the prosecution," .

The SC held that the accused, Shamsher Singh Verma, had claimed during his examination that he had been implicated in the case due to a property dispute.


Though the SC refused to delve into the authenticity of the conversations, 
 "We are of the view that the courts below have erred in law in not allowing the application of the defence to play the compact disc relating to conversation between father of the victim and son and wife of the appellant (accused) regarding alleged property dispute.

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                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 1525 OF 2015
               (Arising out of S.L.P. (Crl.) No. 9151 of 2015)


Shamsher Singh Verma                         … Appellant

                                   Versus

State of Haryana                             …Respondent








                               J U D G M E N T


Prafulla C. Pant, J.


      This appeal is directed against order dated 25.8.2015, passed  by  the
High Court of Punjab and Haryana  at  Chandigarh,  whereby  said  Court  has
affirmed the order dated 21.2.2015, passed by the  Special  Judge,  Kaithal,
in Sessions Case No. 33  of  2014,  and  rejected  the  application  of  the
accused for getting exhibited the compact disc, filed in defence and to  get
the same proved from Forensic Science Laboratory.

We have heard learned counsel for the parties  and  perused  the  papers  on
record.

Briefly stated, a report was  lodged  against  the  appellant  (accused)  on
25.10.2013 at Police Station, Civil Lines, Kaithal, registered  as  FIR  No.
232 in respect of offence punishable under Section 354 of the  Indian  Penal
Code (IPC) and one relating to Protection of Children from  Sexual  Offences
Act, 2015 (POCSO) in which complainant Munish Verma alleged that  his  minor
niece was molested by the appellant.  It appears that  after  investigation,
a charge sheet is filed  against  the  appellant,  on  the  basis  of  which
Sessions Case No. 33 of 2014 was registered.  Special Judge, Kaithal,  after
hearing the parties, on 28.3.2014  framed  charge  in  respect  of  offences
punishable under Sections 354A and 376 IPC and also in  respect  of  offence
punishable under Sections 4/12 of POCSO.  Admittedly  prosecution  witnesses
have been examined in said case, whereafter statement  of  the  accused  was
recorded under Section 313 of the Code  of  Criminal  Procedure,  1973  (for
short “CrPC”).  In defence the accused has examined four witnesses,  and  an
application purported to have  been  moved  under  Section  294  CrPC  filed
before the trial court with following prayer: -

“In view of the submissions made above it is therefore prayed that the  said
gadgets may be got operated initially in the court for preserving a copy  of
the  text  contained  therein  for  further  communication  to  F.S.L.   for
establishing their authenticity.  It is further prayed  that  the  voice  of
Sandeep Verma may kindly be ordered to be taken by the experts at FSL to  be
further got matched with the recorded voice above mentioned.”


In said application dated 19.2.2015, it is alleged that there  is  recording
of conversation between Sandeep Verma (father of  the  victim)  and  Saurabh
(son  of  the  accused)  and  Meena  Kumari  (wife  of  the  accused).   The
application appears to have been opposed by the prosecution.   Consequently,
the trial court rejected the same vide order dated 21.2.2015  and  the  same
was affirmed, vide impugned order passed by the High Court.
Learned counsel for the appellant argued before us that the  accused  has  a
right to adduce the evidence in defence and the courts below have  erred  in
law in denying the right of defence.

On the other hand, learned counsel for the complainant and  learned  counsel
for the State contended that it is a case of sexual abuse of a female  child
aged nine years by his uncle, and the accused/appellant is trying to  linger
the trial.


In reply to this, learned counsel for the appellant pointed out  that  since
the accused/appellant is in jail, as such, there is no question on his  part
to protract the trial.  It is further submitted on behalf of  the  appellant
that the appellant was initially detained on  24.10.2013  illegally  by  the
police at the instance of the complainant, to settle  the  property  dispute
with the complainant and his brother.  On this Writ Petition (Criminal)  No.
1888 of 2013 was filed before the High Court for issuance of writ of  habeas
corpus.  It is further pointed out that  the  High  Court,  vide  its  order
dated 25.10.2013, appointed Warrant Officer, and the appellant was  released
on 25.10.2013 at  10.25  p.m.  Immediately  thereafter  FIR  No.  232  dated
25.10.2013 was registered at 10.35 p.m.  regarding  alleged  molestation  on
the basis of which Sessions Case is proceeding.  On behalf of the  appellant
it is also submitted that appellant’s wife Meena is sister of  Munish  Verma
(complainant) and Sandeep  Verma  (father  of  the  victim),  and  there  is
property dispute between the parties due to which  the  appellant  has  been
falsely implicated.

Mrs.  Mahalakshmi  Pawani,  learned  senior  counsel  for  the   complainant
vehemently argued that the alleged conversation  among  the  father  of  the
victim and son and wife of the appellant is subsequent to  the  incident  of
molestation and rape with a nine year old child, as  such  the  trial  court
has rightly rejected the application dated 19.2.2015.


However, at this stage we are not inclined to express any opinion as to  the
merits of the prosecution case  or  defence  version.   The  only  point  of
relevance at present is  whether  the  accused  has  been  denied  right  of
defence or not.


Section 294 CrPC reads as under: -

“294. No formal proof of certain documents. –  (1)  Where  any  document  is
filed before any Court by the prosecution or the  accused,  the  particulars
of every such document shall be included in a list and  the  prosecution  or
the accused, as the case may be, or the pleader for the prosecution  or  the
accused, if any, shall be called upon to admit or deny  the  genuineness  of
each such document.

      (2) The list of documents shall be in such form as may  be  prescribed
by the State Government.

      (3) Where the genuineness  of  any  document  is  not  disputed,  such
document may be read in evidence in any inquiry, trial or  other  proceeding
under this Code without proof of the signature of  the  person  to  whom  it
purports to be signed:

       Provided  that  the  Court  may,  in  its  discretion,  require  such
signature to be proved.”


The object of Section 294 CrPC is to accelerate pace of  trial  by  avoiding
the time being wasted by the parties in recording the unnecessary  evidence.
 Where genuineness of any document is  admitted,  or  its  formal  proof  is
dispensed with, the same may  be  read  in  evidence.   Word  “document”  is
defined in Section 3 of the Indian Evidence Act, 1872, as under: -
“ ‘Document’ means any matter expressed or described upon any  substance  by
means of letters, figures or marks, or by more  than  one  of  those  means,
intended to be used, or which may be used,  for  the  purpose  of  recording
that matter.

                                Illustration

A writing is a document;
Words printed, lithographed or photographed are documents;
A map or plan is a document;
An inscription on a metal plate or stone is a document;
A caricature is a document.”


In R.M. Malkani vs. State of Maharashtra[1], this Court  has  observed  that
tape recorded conversation is admissible provided first the conversation  is
relevant to the matters in issue; secondly, there is identification  of  the
voice; and, thirdly, the accuracy  of  the  tape  recorded  conversation  is
proved by eliminating the possibility of erasing the tape record.

In Ziyauddin Barhanuddin Bukhari vs. Brijmohan Ramdass Mehra and  others[2],
it was held by this Court that tape-records of  speeches  were  “documents”,
as defined by Section 3 of the Evidence Act, which  stood  on  no  different
footing than photographs, and that  they  were  admissible  in  evidence  on
satisfying the following conditions:
“(a)  The  voice  of  the  person  alleged  to  be  speaking  must  be  duly
identified by the maker of the record or by others who know it.

(b)   Accuracy of what was actually recorded had to be proved by  the  maker
of the record and satisfactory evidence, direct or  circumstantial,  had  to
be there so as to rule out possibilities of tampering with the record.

(c)   The subject-matter recorded had to be shown to be  relevant  according
to rules of relevancy found in the Evidence Act.”

In view of the definition of ‘document’ in Evidence Act, and  the  law  laid
down by this Court, as discussed above, we hold that  the  compact  disc  is
also a document.  It is not necessary for the court to obtain  admission  or
denial on a document under sub-section (1) to Section  294  CrPC  personally
from the  accused  or  complainant  or  the  witness.   The  endorsement  of
admission or denial made by the counsel for defence, on the  document  filed
by the prosecution or on the application/report with which  same  is  filed,
is sufficient compliance of Section  294  CrPC.   Similarly  on  a  document
filed by the defence, endorsement of  admission  or  denial  by  the  public
prosecutor is sufficient and defence will have to prove the document if  not
admitted by the prosecution.  In  case  it  is  admitted,  it  need  not  be
formally proved, and can be read in evidence. In a complaint  case  such  an
endorsement can be made by the counsel for the  complainant  in  respect  of
document filed by the defence.

On going through the order dated 21.2.2015, passed by the  trial  court,  we
find that all the prosecution witnesses, including  the  child  victim,  her
mother Harjinder Kaur, maternal grandmother Parajit Kaur  and  Munish  Verma
have been examined.  Sandeep Verma (father of the victim)  appears  to  have
been discharged by the prosecution, and the evidence was closed.   From  the
copy of the  statement  of  accused  Shamsher  Singh  Verma  recorded  under
Section 313 CrPC (annexed as Annexure P-11 to the petition), it  is  evident
that in reply to second last question, the accused has alleged that  he  has
been implicated due to property  dispute.   It  is  also  stated  that  some
conversation is in possession of his son.  From the record it also  reflects
that Dhir Singh, Registration Clerk, Vipin Taneja, Document Writer,  Praveen
Kumar, Clerk-cum-Cashier, State Bank of Patiala, and Saurabh Verma,  son  of
the appellant have been  examined  as  defence  witnesses  and  evidence  in
defence is in progress.

We are not inclined to go into the truthfulness of the  conversation  sought
to be proved by the defence but, in  the  facts  and  circumstances  of  the
case, as discussed above, we are of the view  that  the  courts  below  have
erred in law in not allowing the application of the defence  to  get  played
the compact disc relating to conversation between father of the  victim  and
son and wife of the appellant regarding alleged property  dispute.   In  our
opinion, the courts below have erred in law in rejecting the application  to
play the compact disc in question to enable the public prosecutor  to  admit
or deny, and to get it sent to  the  Forensic  Science  Laboratory,  by  the
defence.  The appellant is in jail and there appears to be no  intention  on
his  part  to  unnecessarily  linger  the  trial,  particularly   when   the
prosecution witnesses have been examined.

Therefore, without expressing any opinion as to  the  final  merits  of  the
case, this appeal is allowed, and the orders passed by the courts below  are
set aside.  The application dated 19.2.2015 shall stand  allowed.   However,
in the facts and  circumstances  of  the  case,  it  is  observed  that  the
accused/appellant shall not be entitled to seek bail on the ground of  delay
of trial.


                                                          ………………….....…………J.
                                                  [Dipak Misra]




                                                            .………………….……………J.
                                                          [Prafulla C. Pant]
New Delhi;
November 24, 2015.

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[1]    (1973) 1 SCC 471 : 1973 (2) SCR 417
[2]    (1976) 2 SCC 17 : 1975 (Supp) SCR 281



Thursday, 15 October 2015

Permission to go abroad by Court after releasing on bail.

IN THE HIGH COURT OF DELHI AT NEW DELHI

SUBJECT : INDIAN PENAL CODE

 CRL.M.C. 83/2012

 Date of Decision:20.03.2012

 G.Vetrivel Sami @ Swami ...… Petitioner Through: Mr.Aman Mehta, Advocate.

 Versus

 CBI .....Respondent Through: Ms.Sonia Mathur & Mr.Sushil Dubey, Advocates.

CORAM: HON’BLE MR. JUSTICE M.L. MEHTA M.L. MEHTA, J.

 1. Vide this petition under Section 482 CrPC, the petitioner seeks to modify the bail order dated 03rd June, 2006 of Special Judge, CBI and the order dated 08.12.2011 of ASJ dismissing his application seeking modification of the said bail order dated 03rd June, 2006.

 2. The petitioner is facing prosecution in CBI case under Sections 255/258/259/260/420/471/120B IPC. He was granted bail by the then Special Judge on 03rd June, 2006 subject to the following conditions: “(i) That accused shall not leave India without permission of the Court. (ii) That he shall surrender his passport, if any to the CBI. (iii) That he shall not tamper with the evidence. (iv) That he shall not have contact with any of the prosecution witnesses. (v) Further, if the trial is delayed on the account of dilatory tactics adopted by the accused, that itself can be treated as a ground for cancellation of bail”.

3. The petitioner was granted permission to go abroad by the Trial Court for specific periods as many as four times. Every time, the permission was granted by the Court for specific period subject to the petitioner furnishing FDR of Rs. 1 lakh and NOC from both the sureties as also the itinerary and contact numbers of his travel period. On two occasions i.e. 25th February, 2009 and 04th March, 2009, his permission to travel abroad was declined by the Trial Court.

4. The petitioner filed an application for modification of the bail order dated 03rd June, 2006, which came to be dismissed by the ASJ vide the impugned order dated 08th December, 2011. While dismissing the application, the learned ASJ reasoned as under: “I have considered the rival submissions. The allegations against the applicant are serious in nature. There are allegations that he was involved in fake stamp network of accused Abdul Karim Telgi. There are allegations that he was actively involved in the sale of counterfeit stamps. The applicant was granted bail in the year 2006. Since 2006, the applicant has travelled only thrice to CIS countries on 16.10.2010, 14.02.2011 and 08.07.2011. He is not a frequent visitor. The Spl. PP for CBI has submitted that whenever permission is applied by applicant to go abroad, the CBI verifies the fact whether petitioner is actually required to go abroad or not? If the conditions are modified, there will be no check on the petitioner and he can misuse the liberty. In my opinion, the conditions imposed upon the applicant are not unjustified. Ld. ASJ Sh. V.B.Gupta (as his Lordship then was) while granting bail had imposed the conditions keeping in mind the serious nature of offence and role of the accused. In my opinion there are no grounds to modify the same”.

5. The petitioner has assailed the said order dated 08th December, 2011 of ASJ and sought modification of the aforesaid conditions of the bail order dated 03rd June, 2006. It is submitted that the petitioner was earlier engaged in travel agency business and was required to travel abroad and since the permission was declined by the Trial Court on two occasions and he could not travel, he had to ultimately close his said travel and tour business. It is further submitted that the petitioner is now engaged in consultancy of drugs and medicines for CIS countries and his business requires travelling to these countries. It is submitted that the procedure for seeking permission from the Trial Court for going abroad was cumbersome inasmuch as every time, he was to furnish FDR and also obtain NOCs from two sureties which takes considerable time. It is submitted that the petitioner has his permanent residence and business at Delhi and his wife, who is one of his sureties is also employed in a permanent Government service in Delhi for the past 19 years. It is next submitted that the petitioner has already gone abroad four times with the permission of the Trial Court and has never violated or misused the liberty granted to him.

 6. Per contra, it was submitted by the learned Standing Counsel for CBI that the petitioner is involved in the offence of counterfeiting the stamps to different countries, which was an offence against the society at large and that, the case being at the trial stage for recording of the prosecution evidence, the blanket permission would impact and delay the trial of the case. It is submitted that the petitioner has only travelled thrice in the last five years and there does not appear to be any need for blanket permission. It was next submitted that seeking of the permission from the Trial Court for the purpose of going abroad, in any way, cannot be said to cause any inconvenience to the petitioner.


 7. There is no dispute that the petitioner is facing trial in a serious nonbailable offence and that, the Court while exercising discretion to enlarge the accused on bail could impose such conditions as may be deemed fit and appropriate in the given facts and circumstances. The petitioner at the time of his release on bail on 3rd June, 2006 was engaged in travel and tour business in different countries. The court while exercising its discretion in granting bail imposed the aforesaid conditions. Invariably, the courts do impose some conditions with the objective to ensure not only the fair investigation and trial, but that the accused does not flee from the process of law or tamper with the evidence. It is towards this that in appropriate cases, the accused is also directed to surrender his passport or not to undertake travel abroad without the permission of the court. While imposing any condition at the time of grant of bail, the courts are guided by various factors such as the nature of offence, the status of the accused, his financial condition, his roots in society, his frequency of travelling, his proximity with the witnesses, his contacts here and abroad and propensity to commit offences etc. These are only illustrative and list of such guiding factors cannot be exhaustive. At the same time, the court has to be mindful of the fact that any such condition has to be imposed keeping in view the fundamental right of personal liberty of a person. The conditions which should be imposed must be workable, practical and reasonable and should not be harsh, vindictive and undue infringing personal liberty of a person. The overall object of the imposing such condition has to be kept in mind that is to ensure the submission of the accused to the process of law and not to try to cause any hindrance in the fair trial. It is reiterated that this will all depend upon the wisdom of the judge and the facts and circumstances of each case. There cannot be any straight jacket guideline in this regard.

 8. In the given facts and circumstances, when the petitioner has already travelled abroad several times, now the mere fact of the seriousness or the gravity of the offence alone may not be enough to decline permission to travel abroad. In the present case, the accused was permitted to travel abroad four times and every time, he complied with the conditions imposed by the Trial Court. Of course, he was also denied to travel abroad on two occasions as the Trial Judge did not think it appropriate to exercise discretion at that point of time. It is not that the discretion exercised at that time was arbitrary or non-judicious. The time at which such a discretion is sought to be exercised is also an important factor of relevance. It is noticed that every time, when permission was granted to the petitioner to travel abroad, he submitted FDR of Rs. 1 lakh to be kept alive during the travel period and also NOCs from the sureties. One of his surety is none else but his wife, who is a permanent employee of Delhi Government for the last 19 years. Furnishing FDR and obtaining NOCs at every time on the occasion of visit abroad may be reasonable at one point of time, but then, the same can become onerous and harsh at another point of time. In the given set of system, it may also involve mental torture and running around.

 9. The petitioner stated having started his consultancy business with CIS countries and so, he would be required to travel abroad frequently. Though, he has travelled abroad only about four times in five years, but, that was presumably because of onerous conditions and the reason of petitioner having stopped his business of travel and tours. In the given facts and circumstances, I am of the view that the petitioner is now entitled to enjoy personal liberty without seeking permission from the court every time under onerous and harsh conditions. In the entire factual matrix, I am inclined to modify the conditions of bail so as to ensure the fair trial and also submission of the petitioner to the process of law. Accordingly, the first and second conditions imposed vide order dated 03rd June, 2006 are modified and substituted as under: (1) The petitioner shall not leave the country without informing the Trial Court a week in advance of his visiting abroad and shall furnish the complete itinerary stating the country/countries, which he intends to visit and the period of his stay as also the addresses where he would be staying and his contact numbers. He shall also inform the Trial Court in writing about his return to India within a week thereof. Further, he shall not travel abroad during the period when the case is listed for evidence and his presence is required, unless already dispensed. (2) While intending to go abroad, he shall furnish a bank guarantee or FDR of Rs. 5 lakhs in the Trial Court, which shall be kept alive till the period he returns and informs the court.

 10. Rest of the conditions of the order dated 03rd June, 2006 shall remain unaltered. The liberty is also granted to the respondent/CBI to get this order revoked in the event of the petitioner failing to comply with these modified conditions at any point of time during the trial. Copy of this order be circulated amongst judicial officers of District Judiciary.

11. The petition stands disposed of with the above directions and observations.


 Sd/- M.L. MEHTA, J. MARCH 20, 2012 

Saturday, 5 September 2015

Anticipatory Bail u/s 438 of Cr.P.C.

Anticipatory Bail u/s 438 of Cr.P.C. Judgment of Supreme Court of India.

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The appellant herein, in these appeals, challenges the validity of the judgment dated 18.07.2014 passed by High Court of Judicature at Gujarat cancelling the anticipatory bail which was granted to the appellant by the Additional Sessions Judge, Court No.16 of Ahmedabad City Sessions Court.
Before coming to the factual narrative of a long drawn event that has taken place in respect of criminal trial pending against the appellant, we would like to state, in capsiculated manner, the circumstances under which the matter has landed up in this Court.

The appellant and respondent No.2 (hereinafter 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 Police officer of the concerned Police Station wherein she again levelled the allegations of maltreatment, blackmail etc. However, in this statement of hers, which was recorded by the Investigating Officer (I.O.), allegations of rape were conspiciously missing. On the basis of statement made on 31.05.2001, F.I.R. was registered and charge under Section 506(2) of Indian Penal Code (IPC) was framed in the year 2001. The appellant was admitted to bail in the said case. Trial has proceeded which has 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 heard afresh in its entirety after giving opportunity to both parties. On 31.03.2012, the Metropolitan Magistrate directed the Police to carry out special investigation under Section 173(8) of the Code of Criminal Procedure (hereinafter referred to as the ‘Code’). Being not satisfied, the parties challenged the above order. The matter travelled up to this Court wherein certain directions were issued. Ultimately, the Police filed a revised chargesheet stating that a prima facie case under Section 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 grant of anticipatory bail, the prosecutrix filed criminal revision petition which has been allowed by the High Court vide impugned order dated 18.07.2014 cancelling the anticipatory bail granted to the appellant. As pointed out above, it is the justification and legality of this order which is in question before us in the instant appeals.

The following factors and parameters that need to be taken into consideration while dealing with anticipatory bail:
(a) The nature and gravity of the accusation and the exact role of the 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 arresting him or her;
(f) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;
(g) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution, because overimplication 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) Frivolity in 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 and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused in entitled to an order of bail.
Having regard to the facts of this case which have already been highlighted above, we feel that 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.
———————————————————————————————————————————————————————
                     IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                   CRIMINAL APPEAL NOS. 1134-1135 OF 2015
    [arising out of Special Leave Petition (Crl.) Nos. 6028-6029 of 2014]


|BHADRESH BIPINBHAI SHETH                   |.....APPELLANT(S)           |
|VERSUS                                     |                            |
|STATE OF GUJARAT & ANOTHER                 |.....RESPONDENT(S)          |


                               J U D G M E N T
A.K. SIKRI, J.
Leave granted.
The appellant herein, in these appeals, challenges the validity of the judgment dated 18.07.2014 passed by High Court of Judicature at Gujarat cancelling the anticipatory bail which was granted to the appellant by the Additional Sessions Judge, Court No.16 of Ahmedabad City Sessions Court.
Before coming to the factual narrative of a long drawn event that has taken place in respect of criminal trial pending against the appellant, we would like to state, in capsiculated manner, the circumstances under which the matter has landed up in this Court.
The appellant and respondent No.2 (hereinafter 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 Police officer of the concerned Police Station wherein she again levelled the allegations of maltreatment, blackmail etc. However, in this statement of hers, which was recorded by the Investigating Officer (I.O.), allegations of rape were conspiciously missing. On the basis of statement made on 31.05.2001, F.I.R. was registered and charge under Section 506(2) of Indian Penal Code (IPC) was framed in the year 2001. The appellant was admitted to bail in the said case. Trial has proceeded which has 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 heard afresh in its entirety after giving opportunity to both parties. On 31.03.2012, the Metropolitan Magistrate directed the Police to carry out special investigation under Section 173(8) of the Code of Criminal Procedure (hereinafter referred to as the ‘Code’). Being not satisfied, the parties challenged the above order. The matter travelled up to this Court wherein certain directions were issued. Ultimately, the Police filed a revised chargesheet stating that a prima facie case under Section 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 grant of anticipatory bail, the prosecutrix filed criminal revision petition which has been allowed by the High Court vide impugned order dated 18.07.2014 cancelling the anticipatory bail granted to the appellant. As pointed out above, it is the justification and legality of this order which is in question before us in the instant appeals.
The aforesaid brief resume depicts that the charge was framed against the appellant initially in the year 2001 only under Section 506(2) of IPC. Insofar as charge under Section 376 of IPC is concerned, it is added only in the year 2014. Further, the original charge was framed underSection 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 order passed by the High Court whereby the anticipatory bail order of the Additional Session Judge is cancelled, does not take the matter in such a simplistic manner and, therefore, a detailed discussion on the issue has become imperative.
The High Court took note of the circumstances which led to the addition of charge under Section 376 IPC at a belated stage. Thus, it would be necessary to take stock of those detailed events and thereafter decide as to whether the order of the High Court is sustainable or not. These facts are recapitulated with elaboration which is absolutely necessary for our purposes, as under:
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 further mentioned that prior to shifting to this place, she was residing with her in-laws at Sanand for 10 years. She was married, with three children, and her husband was a Jeweller. She alleged in the complaint that about 2½-3 years prior thereto, she had gone to C.N. Vidhyalaya where her daugher Devel was studying. To return home, she was to catch a Bus. When she was standing at the Bus Stand, the appellant, who was her neighbour, passed through that place in his car and on seeing the prosecutrix, 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 rape by giving the threat that if the prosecutrix did not agree, he would tell her husband and others. He took her to Hotel Ellis Town and raped her against her wishes. After that, he threatened her of dire consequences saying that he had taken her photographs. This way he continued to keep relations with the prosecutrix. This complaint further states that she shifted to Ahmedabad but even after coming to Ahmedabad, he started sending letters with the threat to defame her. At that stage, she told 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.
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 condition is becoming worst day by day. In these two days, Bhadresh is making horrible face reading while our access and is doing abusive and filthy behaviour. Yesterday, during the night hours at about 8.15 hours, mother of Bhadresh was speaking in a very loud tone in a way that I can hear the same as they are residing in front of us that we will pay maintenance and Bhadresh himself was speaking like this and telling me to live as his KEPT is also speaking like this. He is laughing in a satire manner 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 anything. Now, I am worried about my daughter who is growing and becoming young because Bhadresh is also looking to her with bad intention. His intention appears to be mal.
I have dictated the above statement in full sound state of mind and without any undue pressure.
Before me                   Sd/- Manish K Mehta
Vandana Patva               Date: 31.05.2001
31.05.2001”


During preliminary inquiries, the Police recorded the statements of counsellors of Jyoti Sangh who confirmed that the prosecutrix had made the statement to them 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.
On 07.12.2010, an application was moved by the prosecutrix for amending the charge by including the offence under Section 376 IPC as well on the basis of complaint dated 29.05.2001 and treating the same as FIR. Initially, the Metropolitan Magistrate did not agree with this request and passed an order to the effect that till the examination-in-chief of the prosecutrix was recorded, it was not justifiable to amend/alter the charge. However, in the revision petition filed against that order, the Sessions Court remanded the case for fresh consideration. After remand, the order dated 31.03.2012 was passed by the Metropolitan Magistrate directing further investigation underSection 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 which had upheld the order of the Magistrate who had already ordered further investigation. Said SLP (Crl.) No.636/2013 was disposed of on 04.02.2013 taking note of the fact that though the Metropolitan Magistrate had ordered further inquiry by the Police on 31.03.2012 with direction to submit the report within four weeks, no such report had been submitted till that date. On that basis, following order was passed: “We are informed that till today the police has not submitted the final report pursuant 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 dismissed as not pressed.” Thereafter, the Police completed the investigation and submitted the report. The Police filed the chargesheet adding Section 376 of the IPC against the appellant and on that basis, an order was passed by the Additional Chief Metropolitan Magistrate on 25.04.2013 thereby committing the case to the Sessions Court and further directing that the appellant be taken into judicial custody, cancelling the bail bond. It is in these circumstances the appellant moved an application 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.
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 physical relationship, if any, was consensual. It was also submitted that in her statement recorded before the IO on 31.05.2001, there was no allegation of rape; even when the charge was framed under Section 506(2) IPC the prosecutrix did not object to the framing of the said charge simplicitor or insist upon addition of charge under Section 376 of IPC as well; after a gap of more than 9 years from the framing of charge, application was moved for this purpose; in the fresh chargesheet filed by the 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, only then, you do contest this case again and it is the wish of both of them, this case is kept pending.
Before me              Sd/- Manisha K. Mehta
Vandana Patva               29.03.2001
29.03.2001.”

It was also pointed out that between 2001 and 2010, the prosecutrix did not appear to give her statement. However, the statement of one Vandana Patva, counsel in the said NGO was recorded. Mr. Dave referred to the cross-examination of the said witness wherein this witness had admitted that in the statement dated 31.05.2001 recorded 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 to run a marathon for getting her complaint registered as a FIR and more particularly for addition of charge underSection 376 of IPC. They further submitted that the High Court wrongly recorded that the Sessions Court had failed to assign proper reasons for grant of anticipatory bail. It was pointed out that the move on the part of the appellant in filing criminal cases against the husband of the prosecutrix, in which the prosecutrix husband was acquitted, is treated by the High Court as tampering 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.
The prosecutrix appeared in person and argued her case. She extensively took us through the counter affidavit filed by her in opposition to the present proceedings on the basis of which she hammered the following aspects:
(a) The prosecutrix was harrased by the appellant. First act of sexual intercourse was against her wishes and was clearly a rape. After committing this rape, the appellant threatened her and started blackmailing her. On that basis, he took undue advantage of the hapless condition of the prosecutrix 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 the prosecutrix in this behalf as well.
(d) In order to harass the prosecutrix, the appellant even foisted false cases on the husband of the prosecutrix in order to pressurize the prosecutrix to withdraw the case in question.
(e) She also submitted that not only in the complaint made to Jyoti Sangh on 19.03.2001, she had levelled allegations of rape, but such allegations were also made in her complaint to the ACP on 29.05.2001. According to her, in fact, the statement which was recorded on 31.05.2001 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 376IPC 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 the charge for offence underSection 376 of IPC framed against the appellant.
Ms. Hemantika Wahi, learned counsel appearing for the State, supported the plea of the prosecutrix. Her submission was that once the charge under Section 376 IPC has been added which was a serious charge and the offence being non-bailable, the proper course of action was to direct the appellant to surrender before the trial court and apply for regular bail. Her submission was that having regard to the seriousness of this charge, it was not a case of anticipatory bail.
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.
In the first place, it is necessary to remind ourselves that in the present proceedings, this Court is concerned not about the feasibility of framing of the charge under Section 376 IPC or merit thereof but to the grant of anticipatory bail to the appellant. Therefore, the arguments of the prosecutrix that such a charge is rightly framed and the submissions on behalf of the appellant attempting to find the loopholes and the weakness in the prosecution case, would not be of much relevance to the issue involved. At this stage, it cannot be said as to whether there was any physical 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 circumstances of this case, appellant was entitled to anticipatory bail or not and whether the High Court was justified in cancelling the anticipatory bail.
For this purpose, we would first highlight the admitted position which runs as follows:
The allegations of rape go back to the years 1997-1998. No doubt, in the statement dated 19.03.2001 given to NGO Jyoti Sangh by the prosecutrix, she had levelled the allegations of rape. Equally, no doubt, she had repeated these allegations in her complaint 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 statement recorded on 31.05.2001 and the chargesheet was filed making out a prima facie case only under Section 506(2) of IPC, the prosecutrix did not say anything at that time. There was no protest even when charge was framed by the concerned Magistrate only under Section 506(2) IPC. The objection in this regard was raised for the first time in the year 2008 i.e. almost 7 years after the framing of the charge and application was filed in the year 2010 for including the charge underSection 376 IPC 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 feasibility of grant of anticipatory bail.
In a matter like this where allegations of rape pertain to the period which is almost 17 years ago and when no charge was framed underSection 376 IPC in the year 2001, and even the prosecutrix did not take any steps for almost 9 years and the charge under Section 376 IPC is added only in the year 2014, we see no reason why the appellant should not be given the benefit of anticipatory bail. Merely because the charge under Section 376 IPC, which is 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. 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 wrongly mentioned that the Sessions Court has not assigned proper reasons for grant of anticipatory bail. In fact, the reasons which have persuaded us and recorded above, are precisely the reasons given by the Sessions Court itself while granting anticipatory bail to the appellant. The High Court has also wrongly observed that it is the appellant who was able to drag the matter for a decade before the complaint was registered under proper Sections. The record of the case does not support this observation 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 the complainant or the prosecutrix cannot get the anticipatory bail cancelled on this basis and the ground of misusing the order of bail after its grant is not made out. As per the High Court, the order of grant of bail by the Session Court itself was improper and that is the basis for cancelling the order passed by the Session Court.
Before we proceed further, we would like to discuss the law relating to grant of anticipatory bail as has been developed through judicial interpretative process. 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[1]. The Constitution Bench in this case emphasized that provision of anticipatory bail enshrined inSection 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 of the Constitution. The Code explains that an anticipatory bail is a pre- arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail. The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation 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 bySection 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 unnecessary restrictions on the scope of Section 438, especially when no such restrictions have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An over-generous infusion of constraints and conditions 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 438must 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 of his liberty must be fair, just and reasonable. Section 438, in the form in which it is conceived by the legislature, is open to no exception on the ground that it prescribes a procedure which is unjust or unfair. We ought, at all costs, to avoid throwing it open to a Constitutional challenge by reading words in it which are not to be found therein.” Though the Court observed that the principles which govern the grant of ordinary bail may not furnish an exact parallel to the right to anticipatory 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 influencing witnesses etc. Once these tests are satisfied, bail should be granted to an undertrial which is also important as viewed from another angle, namely, an accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he were in custody. Thus, grant or non-grant of bail depends upon a variety of circumstances and the cumulative effect thereof enters into judicial verdict. The Court stresses that any single circumstance cannot be treated 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 event of his arrest would generally be made. On the other hand, if it appears likely, considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice, such an order would not be made. But the converse of these propositions is not necessarily true. That is to say, it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides; and, equally, that 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 witnesses will be tampered with and “the larger interests of the public or the State” are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail. The relevance of these considerations was pointed out in The State v. Captain Jagjit Singh, AIR 1962 SC 253 : (1962) 3 SCR 622 : (1962) 1 Cri LJ 216, which, though, was a case under the old Section 498 which corresponds to the presentSection 439 of the Code. It is of paramount consideration to remember 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.” It is pertinent to note that while interpreting the expression “may, if it thinks fit” occurring in Section 438(1) of the Code, the Court pointed out that it gives discretion to the Court to exercise the power in a particular case or not, and once such a discretion is there merely because the accused is charged with a serious offence may not by itself be the reason to refuse the grant of anticipatory bail if the circumstances are otherwise justified. At the same time, it is also the obligation of the applicant to make out a case for grant of 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.
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[2]. This case lays down an exhaustive commentary of Section 438 of the Code covering, in an erudite fashion, almost all the aspects and in the process relies upon the aforesaid Constitution Bench judgment in Gurbaksh Singh’s case. In the very first para, the Court highlighted the conflicting interests which are to be balanced while taking a decision as to whether bail is to be granted or not, as is clear from the following observations:
“1. Leave granted. This appeal involves issues of great public importance pertaining to the importance of individual’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 committing crimes and potentiality of repeating the same crime while on bail and on the other hand, absolute adherence to the fundamental principle of criminal jurisprudence regarding presumption of innocence of an accused until he is found guilty and the sanctity of individual liberty.” The principles which can be culled out, for the purposes of the instant case, can be stated as under:
(i) The complaint filed against the accused needs to be thoroughly examined, including the aspect whether the complainant 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 accordance with law.
(ii) The gravity of charge and the exact role of the accused must be properly comprehended. Before arrest, the arresting officer must record the valid reasons which have led to the arrest of the accused in the case diary. In exceptional cases, the reasons could be recorded immediately after the arrest, so that while dealing with the bail application, the remarks and observations of the arresting officer can also be properly evaluated by the court.
(iii) It is imperative for the 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 attached to arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre-conviction stage or post-conviction stage.
(iv) There is no justification for reading into Section 438 CrPC the limitations mentioned inSection 437 CrPC. The plentitude of Section 438must be given its full play. There is no requirement that the accused must make out a “special case” for 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 on an application for anticipatory bail ought to be that after evaluating the averments and accusations available on the record if the court is inclined to grant anticipatory bail then an interim bail be granted and notice be issued to the Public Prosecutor. After hearing the Public Prosecutor the court may either reject the anticipatory bail application or confirm the initial order of granting bail. The court would certainly be entitled to impose conditions for the grant of anticipatory bail. The 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 of the accused, the Public Prosecutor or the complainant, on finding new material or circumstances at any point of time.
(vii) In pursuance of the order of the Court of Session or the High Court, once the accused is released on anticipatory bail by the trial court, then it would be unreasonable to compel the accused to surrender before the trial court and again apply for regular bail.
(viii) Discretion vested in the court in all matters should be exercised with care and circumspection depending 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 cannot be clearly visualised for the grant or refusal of anticipatory bail. In consonance with legislative intention, the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case.
(x) We shall also reproduce para 112 of the judgment wherein the Court delineated the following factors and parameters that need to be taken into consideration while dealing with anticipatory bail:
(a) The nature and gravity of the accusation and the exact role of the 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 arresting him or her;
(f) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;
(g) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution, because overimplication 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) Frivolity in 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 and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused in entitled to an order of bail.
Having regard to the facts of this case which have already been highlighted above, we feel that 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 is no allegation that the appellant may flee the course of justice. The FIR was registered and the trial commenced in the year 2001; albeit with the charge framed under Section 506(2) IPC, and during all these periods, the appellant has participated in the proceedings. There is no allegation that during this period he had tried to influence the witnesses. In the aforesaid circumstances, even when there is a serious charge levelled against the appellant, that by itself should not be the reason to 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 bail. We may clarify that we have not gone through the merits of this application, and as and when such an application is made, the trial court would be free to examine the same and pass the order as the trial court deems fit in accordance with law.
Before we part, in order to balance the equities, we are of the view that the trial in this case may be expeditiously conducted and the trial court should endeavour to complete the same within one year.
As a result, we set aside the impugned judgment and restore the order dated 18.05.2013 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.
………………………………………J.
(A.K. SIKRI) ………………………………………J.
(ROHINTON FALI NARIMAN) NEW DELHI;
SEPTEMBER 01, 2015.