Summary
A model alleged that a businessman who had promised her assignments raped her in her Mumbai hotel room in August 2022; Section 376 IPC was added to the FIR on her supplementary statement, after which the Magistrate cancelled his bail and the Sessions Judge refused anticipatory bail. The Bombay High Court nevertheless granted pre-arrest bail in a brief order citing variations in her statements, and confirmed it without hearing her. The Supreme Court set both orders aside: the FIR itself prima facie disclosed rape, the High Court ignored the gravity of the offence, the earlier reasoned rejection and the accused's standing, and the prosecutrix was denied the hearing to which a victim is entitled under Jagjeet Singh v. Ashish Mishra.
Issues
- Whether the High Court was justified in granting anticipatory bail to an accused of rape merely on the ground of variations between the first information report and the prosecutrix's supplementary statements, without considering the gravity of the offence, the earlier reasoned rejection of bail and the standing of the accused.
- Whether a prosecutrix who has applied to intervene is entitled to be heard before anticipatory bail is granted to the accused.
Provisions considered
- Section 438, Code of Criminal Procedure, 1973Following Prasanta Kumar Sarkar, Masroor, Kalyan Chandra Sarkar and Sushila Aggarwal, the court must consider the prima facie case, nature and gravity of the accusation, the accused's position and standing and the risk of influencing witnesses, give reasons, and note why earlier rejections should not weigh; the High Court's three-paragraph order did none of this. (¶¶ 11.1, 12, 13, 14, 16, 22)
- Sections 437(5) and 439(2), Code of Criminal Procedure, 1973Following Pradeep Ram, where graver non-bailable offences are added after bail, the accused must surrender and seek fresh bail or the investigating agency may seek his custody; the Magistrate rightly cancelled the earlier bail when Section 376 was added. (¶¶ 19, 20, 21)
- Sections 375 and 376, Indian Penal Code, 1860The allegations recorded in the FIR itself, even leaving aside the supplementary statements and the medico-legal report, were sufficient prima facie to attract Section 376; the High Court's assumption that the FIR disclosed no rape was erroneous. (¶¶ 21, 22)
- Section 2(wa), Code of Criminal Procedure, 1973Following Jagjeet Singh v. Ashish Mishra, a victim has a right to participate in criminal proceedings including at the grant or cancellation of bail; denying the prosecutrix a meaningful hearing on her intervention application was an additional ground for interference. (¶¶ 23, 24, 25)
Held
- An appellate court may set aside an order granting bail that ignores relevant material indicating prima facie involvement or relies on irrelevant considerations, as held in Myakala Dharmarajam; the High Court disregarded the gravity of the offence, the financial stature and standing of the accused, and the Sessions Judge's finding that the honey-trap plea was unbelievable and that the FIR alone made out rape, and was swayed by supposed variations in the prosecutrix's narration. (¶¶ 17, 21, 22)
- In a crime of this nature, where ordinarily there is no witness except the prosecutrix, the High Court was all the more bound to hear her; she had herself dialled the police, pursued senior officers against investigative apathy and intervened before the Sessions Judge, and the failure to heed her pleas before confirming anticipatory bail amounts to a failure to recognise the victim's right to participate. (¶¶ 23, 25)
- No opinion is expressed on the merits; any application by the accused for regular bail under Section 439 after the chargesheet is to be decided on its own merits. Given the sensitivity of such matters, the Registry must redact the prosecutrix's name and return petitions revealing a prosecutrix's name for redaction before listing. (¶¶ 27, 29)
Result
Appeals disposed of; Bombay High Court orders dated 21.09.2022 and 07.10.2022 granting anticipatory bail quashed and the accused's bail bonds cancelled; any application under Section 439 CrPC to be decided on its own merits; Registry directed to redact the prosecutrix's name from the record and to ensure redaction in such matters before listing.