2023 (8) TMI 1662 - SC - Indian Laws

Bail revoked for accused in gang-rape, extortion case due to heinous offence, witness threats and risk of interference

Bhagwan Singh Versus DILIP KUMAR @ DEEPU @ DEPAK AND ANOTHER, Netram And Another

SC allowed the appeal, set aside the HC order granting bail to the accused in a gang-rape, extortion and related offences. The Court found the offence ... Grant of bail - Gang rape, threat of making video of rape recorded viral and extortion which came to be registered for the offences punishable u/s 376D, 384 and 506 of the IPC read with Section 326 of POCSO Act and Section 66D of IT Act - complaint having been lodged after a lapse of one year after the date of alleged incident - HELD THAT:- This Court in Vipin Kumar Dhir v. State of Punjab [2021 (10) TMI 1479 - SUPREME COURT] has added caveat to the above principles and has further held that bail can also be revoked where the Court has considered irrelevant factors or has ignored relevant material available on record which renders the order granting bail legally untenable. The gravity of the offence, conduct of the accused and societal impact of an undue indulgence by Court when the investigation is at the threshold, are also amongst a few situations, where a Superior Court can interfere in an order of bail to prevent the miscarriage of justice and to bolster the administration of criminal justice system. No doubt each case would have unique facts peculiar to its own and the same would hold key for adjudication of bail matters including cancellation thereof. There may be circumstances where interference to or attempt to interfere with the course of administration of justice or evasion or attempt to evade to due course of justice are abuse of concession granted to the accused in any manner The offence alleged in the instant case is heinous and would be a onslaught on the dignity of the womanhood and the age old principle of यत्र नार्यस्तु पूज्यन्ते रमन्ते तत्र देवता: (where women are respected Gods live there) would recede to the background and the guilty not being punished by process of law or accused persons are allowed to move around freely in the society or in spite of there being prima facie material being present they are allowed to move around freely in the society before guilt is proved and are likely to indulge in either threatening the prosecution witnesses or inducing them in any manner to jettison the criminal justice system, then the superior court will have to necessarily step in to undo the damage occasioned due to erroneous orders being passed by courts below. The complainant’s grievance, through-out has been that Deepak had been threatening the prosecutrix and other witnesses and that there is every possibility of threat to their life in the event they depose to the truth, and such apprehension is justifiable, especially because accused is in a domineering position. The complainant underlines the influence and possibility of the clout being wielded on the witnesses which cannot be discounted. The fact that even after recording of the deposition of the prosecutrix other prosecution witnesses have not come forward to tender evidence though more than nine dates of hearing has passed, would lend credence to the apprehension of the complainant. The High Court seems to have erred in not considering these basic facts while considering the prayer for grant of bail by taking into consideration the well32 established judicial pronouncements already noticed hereinabove. That the court framed charges, prima facie discloses the possibility and reasonable suspicion of the accused prima facie culpability. The impugned order granting bail is not only bereft of material particulars which would justify grant of bail, but it seems that the High Court has got swayed on the ground of delay and the video having not been recovered during the course of investigation and has given a complete go by to the allegation made in the FIR and statement recorded under Section 161 and 164 of the Cr.P.C. as also the testimony of the prosecutrix before the jurisdictional court. The order of the High Court requires to be set aside and accordingly it is set aside - appeal allowed. ISSUES PRESENTED AND CONSIDERED 1. Whether the High Court erred in granting bail to accused charged with gang rape of a minor where prosecution relied on statement(s) under Section 161 and 164 Cr.P.C., and the FIR was lodged after a delay of 13 months. 2. Whether delay in lodging the FIR, standing alone, is fatal to prosecution and justifies bail where prosecution alleges threats, video evidence and intimidation. 3. The weight to be accorded to investigative omissions/ lacunae (missing hotel register entry, non-availability of CCTV footage, recovery of jewellery, absence of call-records for one accused and call-contact evidence for others) in the exercise of bail jurisdiction. 4. Whether the dominant position/influence of an accused (son of a sitting legislator) and allegations of threat or tampering to witnesses justify denial or cancellation of bail. 5. The standard and approach for interference by a superior court in an order of bail granted by a High Court, including circumstances warranting cancellation or setting aside of bail. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Validity of High Court's grant of bail in serious sexual offences against a minor where prosecutrix' statements under Section 161/164 Cr.P.C. support allegations Legal framework: Bail is a discretionary remedy; considerations include nature of accusation, severity of punishment, nature of supporting evidence, reasonable apprehension of witness tampering, and prima facie satisfaction of the court regarding the charge. For heinous offences-particularly sexual offences against minors-courts must exercise caution and give reasons when departing from an earlier rejection of bail. Precedent treatment: Previous appellate jurisprudence requires the granting court to indicate reasons for bail and to consider factors listed above; interference by a superior court is permissible where relevant material has been ignored or irrelevant material relied upon, or where the order is legally untenable. Interpretation and reasoning: The Court found that the High Court's order was essentially premised on delay and absence of recovered video, and did not adequately consider the prosecutrix' consistent statements under Sections 161 and 164 Cr.P.C., the FIR allegations, or the trial court's taking of cognizance against the accused. Given prima facie allegations of gang rape of a 15½-year-old and corroborative indicia (phone-call records linking some accused; recovery of jewellery; missing hotel entries/CCTV), the High Court's brief reliance on delay and missing video was insufficient. Ratio vs. Obiter: Ratio - A High Court must record cogent reasons for granting bail in serious offences, and cannot ignore consistent 161/164 statements and cogent prima facie materials when doing so. Obiter - Observations on societal values and sanctity of womanhood contextualize but do not alter legal tests. Conclusions: The grant of bail was set aside because the High Court failed to apply the established parameters in a reasoned manner vis-à-vis serious offences supported by prosecutrix' statements and other prima facie materials. Issue 2 - Effect of delay in lodging FIR on bail and on genuineness of prosecution Legal framework: Delay in lodging FIR is a relevant factor but not ipso facto fatal. Courts must examine reasons given for delay, surrounding circumstances (age of victim, threats, social pressures), and whether prosecution has improvised its case during the interregnum. Precedent treatment: Jurisprudence recognizes that delay may be excused where legitimate fear, threats, or social circumstances prevent prompt complaint; conversely, unjustifiable delay combined with step-by-step improvement of prosecution case can be fatal. Interpretation and reasoning: The prosecutrix was a minor and alleged continuous threats, including threat of making a video viral; these factors were pleaded as the reason for delay. The Court held that such contextual considerations could justify the delay and that the High Court erred in treating delay as determinative without assessing these factors and other prima facie materials. Ratio vs. Obiter: Ratio - Delay alone cannot justify bail where credible reasons for delay and substantive prima facie material exist. Obiter - Procedural leniency may be appropriate in cases involving vulnerable victims. Conclusions: Delay did not, by itself, render the prosecution frivolous and could not justify grant of bail in the circumstances; the High Court's reliance on delay as the principal ground was erroneous. Issue 3 - Relevance of investigative lacunae (missing hotel register, absent CCTV, selective charge-sheeting, call records) in bail determination Legal framework: The strength or weakness of investigative material is a relevant consideration at bail stage; however, bail courts need not undertake a full-fledged trial. Material omissions can be examined for prima facie inferences, but absence of certain material does not automatically negate prima facie case if other corroborative evidence exists. Precedent treatment: Courts have held that gaps in investigation may support bail where prosecution is manifestly frivolous, but where other prima facie indicators persist, such lacunae do not necessarily mandate bail. Interpretation and reasoning: The Court noted missing hotel entries and unavailable CCTV footage but observed concurrent evidence: statements by prosecutrix naming accused, call-data linking two accused to the victim, recovery of jewellery from one accused, and the magistrate having taken cognizance against the accused on complaint application. These facts, taken together, established sufficient prima facie satisfaction to refuse bail despite certain investigative gaps. The High Court's focus on missing video and investigative lacunae without balancing these against other material was flawed. Ratio vs. Obiter: Ratio - Investigative lacunae must be weighed against other prima facie material; absence of particular pieces of evidence is not decisive if other credible evidence sustains a prima facie case. Obiter - Critique of policing omissions is permissible but does not displace judicial assessment of prima facie culpability. Conclusions: Investigative deficiencies did not justify bail when balanced with consistent prosecutrix statements and other corroborative indicia; the High Court's selective evaluation of such lacunae was unsustainable. Issue 4 - Impact of accused's dominant position/influence and allegations of threats/tampering on bail and on cancellation of bail Legal framework: Reasonable apprehension of witness tampering or threat to complainant is a significant factor against bail. The potential for misuse of liberty by influential accused to interfere with trial can justify denial or cancellation of bail. Cancellation of bail requires cogent supervening circumstances or that the grant was legally untenable. Precedent treatment: Higher courts may revoke or set aside bail where the accused's liberty is likely to obstruct fair trial, or where the bail order ignored relevant material indicating such risk. Interpretation and reasoning: The Court emphasized the accused's familial/political influence and the prosecutrix' allegations of threats; noted that few prosecution witnesses had testified after many hearings, lending credibility to the fear of intimidation. The High Court failed to address these aspects and the trial court's exercise of cognizance; consequently, the bail order disregarded material considerations about fair trial security and risk of tampering. Ratio vs. Obiter: Ratio - Allegations of influence and credible threats to witnesses weigh strongly against bail; failure to consider such risk can render a bail order invalid. Obiter - Observations on social consequences of undue indulgence are contextual guidance. Conclusions: The accused's potential to influence witnesses and alleged threats justified setting aside the bail grant; courts must explicitly consider such risks when exercising bail discretion. Issue 5 - Standard for interference by superior court in High Court bail orders and directions on surrender and future bail applications Legal framework: Interference by a superior court in a bail order is justified where the High Court ignored relevant material, relied on irrelevant considerations, or where granting bail would likely cause miscarriage of justice. Cancellation requires cogent reasons; bail once granted cannot be vacated mechanically. Precedent treatment: Superior courts have set aside bail orders where the grant was without adequate reasons or contravened established principles; but have cautioned against whimsical cancellation absent supervening facts. Interpretation and reasoning: Applying these principles, the Court found the High Court's order legally untenable for failing to consider key factors and for being primarily driven by delay. Accordingly, the superior court set aside the bail, directed surrender within two weeks, and permitted future bail applications to be considered afresh by courts without being influenced by observations in the present judgment. Ratio vs. Obiter: Ratio - A superior court may set aside a High Court bail order when it is unsupported by reasoned application of bail principles or ignores material considerations; such setting aside should be accompanied by directions safeguarding the accused's right to apply for bail afresh. Obiter - Procedural exhortations to trial and appellate courts to avoid influence by appellate observations. Conclusions: Interference was warranted; bail was set aside and accused directed to surrender, with liberty to seek bail subsequently and with orders that trial and appellate courts consider such applications on merits, uninfluenced by the present observations.