Brief Facts
- The Appellant/prosecutrix filed a complaint alleging that the Respondent No.2/accused lured her under the garb of offering her some modelling assignments and then forced himself upon her and raped her in a hotel room where she was staying. The police had intentionally removed a vital portion of her statement while recording the FIR and had only mentioned the offences under Sections 354, 354 B and 506 I.P.C; The police deliberately did not take the Appellant for a medical examination even on her alleging commission of rape by the Respondent No.2, she was being constantly pressurized to settle the matter with the Respondent No. 2; when the Appellant did not agree for any settlement, the police was compelled to register the FIR but even then, they had watered down the offences to favour the Respondent No. 2.
- Dissatisfied with the manner in which the Investigating Officer was conducting the investigation, the Appellant submitted an application to the Additional Commissioner of Police imploring him to ensure that the investigation is carried out properly and the Respondent No. 2 is arrested.
- Subsequently, the police moved an application before the learned ACMM for cancellation of the bail granted to the Respondent No. 2 having regard to the fact that the provision of Section 376 I.P.C has been added to the subject FIR. The said application was allowed and the learned ACMM cancelled the bail granted to the Respondent.
- The Respondent No. 2 then approached the High Court seeking anticipatory bail and interim protection was granted to the Respondent No. 2
- On coming to know about the aforesaid order, the Appellant filed an application for intervention before the High Court. However, the Bail application moved by the Respondent No.2 was allowed without hearing the Appellant/victim.
- The Appellant/victim approached the Supreme Court against the orders of the High Court.
Issues
- Can the court cancel the bail granted by it if there is a subsequent addition of more serious offenses to the FIR?
- Whether the court is required to hear the victims/prosecutrix before granting Anticipatory bail or Regular Bail?
Held
- The Anticipatory Bail granted to the Respondent was set aside and the accused was directed to surrender. The Supreme Court concluded that the High Court discarded the nature and gravity of the alleged offence. The financial stature, position and standing of the accused vis-à-vis the appellant/prosecutrix was also ignored. Mere variation in narration of Prosecutrix cannot be a ground to enlarge the Respondent No. 2 on bail as there was still sufficient material in the FIR that would prima facie attract the provision of Section 376, IPC.
- As can be discerned from the observations made in Pradeep Ram vs. State of Jharkhand And Another ((2019) 17 SCC 326), addition of a serious offence can be a circumstance where a Court can direct that the accused be arrested and committed to custody even though an order of bail was earlier granted in his favour in respect of the offences with which he was charged when his application for bail was considered and a favourable order was passed. The recourse available to an accused in a situation where after grant of bail, further cognizable and non-bailable offences are added to the FIR, is for him to surrender and apply afresh for bail in respect of the newly added offences. The investigating agency is also entitled to move the Court for seeking the custody of the accused by invoking the provisions of 437(5) and 439(2) Cr.P.C., falling under Chapter XXXIIII of the Statute that deals with provisions relating to bails and bonds. On such an application being moved, the Court that may have released the accused on bail or the Appellate Court/superior Court in exercise of special powers conferred on it, can direct a person who has been released on bail earlier, to be arrested and taken into custody.
Prosecutrix’s right of being heard
- No doubt, the State was present and was represented in the said proceedings, but the right of the prosecutrix could not have been whittled down for this reason alone. In a crime of this nature where ordinarily, there is no other witness except for the prosecutrix herself, it was all the more incumbent for the High Court to have lent its ear to the appellant.
- The appellant/prosecutrix having been denied a meaningful hearing when the first impugned order of anticipatory bail granted in favour of the respondent No. 2/accused was confirmed by the second impugned order, is an additional factor that has prevailed with this Court to interfere in the impugned orders.
Relevant Para No.
- 20, 23, 25