Delhi High Court
X vs State (Nct Of Delhi) & Anr. on 4 March, 2022
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 4th February, 2022
Decided on: 4th March, 2022
+ CRL.M.C. 2946/2021
X ..... Petitioner
Represented by: Mr. Shreeyash U.Lalit and Mr.Tarun
Narang, Advocates.
Versus
STATE (NCT OF DELHI) & ANR. ..... Respondents
Represented by: Ravi Nayak, APP for State with SI
Manju Yadav, PS Vikaspuri.
Mr. Abhay Kumar, Advocate for R-2.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
1. By this petition, the petitioner seeks setting aside of the order dated 7th
September, 2021 and the consequential cancellation of regular bail granted
to the respondent No.2 by the learned ASJ, Fast Track Court, POCSO-1,
Dwarka Court in FIR No. 457/2021.
2. The petition has been filed through the father/ legal guardian of the
victim who is a female aged 37 years, suffering from bipolar mental disorder
episodic mania and psychotic features since the year 2002 and was
diagnosed to be suffering from the mental disorder in 2015 with mania
shortly after her marriage. The same has also resulted in initiation of
divorce proceedings between the victim and her husband.
3. Learned counsel for the petitioner assailing the impugned order states
that despite the fact that the learned Additional Sessions Judge called for the
Signature Not Verified
By:JUSTICE
MUKTA GUPTA
report of IHBAS on 18th August, 2021; 21st August, 2021; 1st September,
2021; and 6th September, 2021, however without waiting for the final report
which was received on 15th September, 2021 passed the impugned order on
7th September, 2021 granting regular bail to the respondent No.2 who was
arrested on 30th July, 2021. It is further stated that while granting bail,
though the learned Trial Court took notice of the initial statement of the
victim recorded before the Police, however failed to notice her detailed
statement recorded under Section 164 Cr.P.C. before the learned
Metropolitan Magistrate. The mobile phone of the accused showed the
mobile number saved with the title '376' and the accused transferred photos
of the victim to the said number for which the mobile phone has already
been sent to FSL and the report of FSL is still awaited. Statement of the
prosecutrix recorded under Section 164 Cr.P.C. and the call detail record
show that the prosecutrix came in touch with the respondent No.2 three days
prior to 21st July, 2021, and on 21st July, 2021 he lured the prosecutrix on the
pretext that there was an evil spirit of a dog in her body which needs to be
removed. After taking the prosecutrix to Nainital instead of Vaishno Devi
by putting vermilion in her head, the prosecutrix was made to believe that
they were married and committed sexual intercourse with her. Statement of
the prosecutrix recorded by the learned Metropolitan Magistrate clearly
shows that she was threatened. The respondent No.2 is living in the
neighbourhood of the prosecutrix and thus as a neighbourer he knew the
medical condition of the prosecutrix. Taking undue advantage of her
medical condition, he lured her and took her away to Nainital, where he
committed the offence of rape on her punishable under Section 376(2)(l)
wherein the sentence awarded is not less than 10 years imprisonment which
Signature Not Verified
By:JUSTICE
MUKTA GUPTA
may extend to life imprisonment and fine. Thus, while granting bail to the
respondent No.2 the learned Trial Court failed to consider the legal
principles applicable for grant of bail i.e. seriousness of offence, likelihood
of the witness being intimidated, tampering with the evidence and the
conduct of the accused. It is further stated that the respondent No.2 does not
have clean antecedents and that prior to the registration of above-noted FIR,
two kalandras were registered against him and after registration of the
above-noted FIR, the respondent No.2 is involved in FIR No. 734/2021
under Sections 323/341/354/506 IPC registered at PS Vikas Puri on 24th
November, 2021.
4. Learned APP for the State contends that the statement of the
prosecutrix recorded under Section 164 Cr.P.C. gives in detail, the manner
in which the respondent No.2 manipulated the prosecutrix and taking
advantage of her mental condition lured her to Nainital where he committed
the serious offence of rape on her, which statement has not been considered
by the learned Trial Court. Further, as per the final report from the IHBAS,
Medical Board the prosecutrix was diagnosed with bipolar affective disorder
and the diagnosis comes under the definition of "mental illness" under
Section 2 of the Mental Health Care Act, 2017. The Board also opined that
based on the serial assessment, ward behaviour observation as well as cross-
sectional examination, the Board was of the opinion that there is no reason
to believe that the prosecutrix may not be able to depose in the Court of law.
5. Learned counsel for the respondent No.2 contends that the prosecutrix
is a major and had been married. She entered into a settlement with her
husband for seeking divorce by mutual consent which shows her cognitive
faculties. After being brought to Delhi, the prosecutrix gave her first
Signature Not Verified
By:JUSTICE
MUKTA GUPTA
statement on 23rd July, 2021 wherein she stated that she went voluntarily
with respondent No.2 and that she established physical relationship of her
own volition. It is further stated that not only in the statement before the
Police but also recorded at the time of counselling by the NGO, the
prosecutrix reiterated that she went of her accord and established
relationship as per her wish. It is further contended that in case the version
of the prosecution is to be accepted that the prosecutrix suffers from a
mental illness, then her first marriage is invalid and therefore the respondent
No.2 committed no offence by marrying her by putting vermillion on her
head. The respondent No.2 also challenges the grant of permission to the
father of the prosecutrix to act as a legal guardian, as the prosecutrix is a
major and is competent to perform her legal duties. The respondent No.2
states that there is no illegality in the impugned order as the learned Trial
Court noted that no further investigation or recovery was required to be
made from the respondent No.2. In view of the prosecutrix being a major
and having consented to establishing relationship, the respondent No.2 has
been rightly released on regular bail by the learned Trial Court.
6. A written complaint of the deponent and his wife i.e. the parents of
the prosecutrix was received on 21st July, 2021 wherein they stated that the
prosecutrix aged 37 years was suffering from mental disorders and
depression since 2002 and was taking medicines. When she has attacks of
depression, she looses her mental balance and becomes violent, breaking
household articles, abusing and acts like a child and speaks irrationally. The
divorce proceedings of their daughter was pending before the Tis Hazari
Court, however no divorce has been granted. At 6.15 PM on that day their
younger daughter who stays in Kashmir received a video call from the
Signature Not Verified
By:JUSTICE
MUKTA GUPTA
prosecutrix from which it was revealed that the prosecutrix was with one
Shiva, R/o Site No.2, House No.3, Vikas Puri and they were in train. She
told that she was going to Jammu. Their younger daughter got perturbed as
Shiva @ Prabhakar Sharma was a person of criminal bent, who fights with
people in the locality, takes drugs and has gone to jail number of times.
Shiva has taken their daughter away by enticing her and they suspected that
taking advantage of the mental condition of their daughter, Shiva may not
sell their daughter or do any wrong act with her. They also stated that their
daughter had take ₹50,000/- and gold jewellery at the instance of Shiva.
7. Though the Police registered no FIR on this complaint, however
mobile phone record of the prosecutrix was collected from which it was
revealed that the prosecutrix was not in Jammu but in Nainital. Hence a
raiding team was sent to Nainital on 22nd July, 2021 and on 23rd July, 2021
the prosecutrix and Shiva were brought to Delhi. It was found out that Shiva
had lured the prosecutrix stating that he was a Astrologer and a Palmist and
on seeing her hand he stated that a soul of a black dog vested in her and she
was required to be taken to a Tantric to remove the same and that he will
take her to Vaishno Devi and remove the soul of black dog from her body.
8. In her statement to the Police, the victim on 23rd July, 2021 stated
that she was 37 years old, married and her divorce case was going on. She
was residing with her parents and suffering from depression since 2001.
Shiva used to reside in a temple in her neighbourhood. He started speaking
to her 2-3 days ago. Shiva told her that they would go to Nainital and on
21st July, 2021 she went with Shiva without telling her family members.
She went with Shiva to Hotel Corbett, Nainital and where they established
physical relationship with her consent. There Police reached and brought
Signature Not Verified
By:JUSTICE
MUKTA GUPTA
them to the Police Station. She wanted no action against Shiva and herself.
9. On the same day, MLC of the prosecutrix was prepared wherein as
per the history given it was stated that Shiva had forcible intercourse with
her two times on 21st July, 2021. No FIR on the statement of the parents of
the victim were recorded and subsequently when the parents of the victim
gave complaints to higher authorities followed by a further complaint dated
27th July, 2021 along with the medical document via tele-consultation dated
25th July, 2021, the above-noted FIR was registered and statement of the
prosecutrix was recorded under Section 164 Cr.P.C.
10. In her statement recorded under Section 164 Cr.P.C. before the
learned Metropolitan Magistrate on 4th August, 2021 the victim stated that
around 15 - 20 days ago she went outside her house, when she met Shiva
Bhaiya who told her that he will get her married, as she had told Shiva
Bhaiya that he should get her married. Shiva had told her that the soul of a
black dog vests in her and he will got her relieved from the same.
Thereafter, Shiva Bhaiya started sending her messages that he will get her
married and would tell her about the details of the boy. The prosecutrix
asked Shiva to take her to Vaishno Devi and there he should get her married
through a priest. Shiva asked her to meet him on 21st July, 2021. Both of
them went to some places and thereafter boarded a train for Vaishno Devi.
She stated that Shiva Bhaiya takes charas/ ganja and was hurling filthy
abuses. In the train Shiva Bhaiya asked her to go to the bathroom with him
so that he could have sex her. He asked for sindoor from her. She had
mata-ka-tika with her which she gave to him and he put the same on her
head. She did not go to the bathroom with him. Instead of taking her to
Vaishno Devi, Shiva Bhaiya took her to Kathgodam, Nainital. In the train
Signature Not Verified
By:JUSTICE
MUKTA GUPTA
Shiva Bhaiya made her video and told her that she has got married to him.
In Nainital he took her to Aiysha Hotel where they stayed in room No. 201.
There he again put vermillion on her head. The prosecutrix stated that she
wanted to marry and bear a child, on which Shiva told her that for a child
she will have to sleep. The prosecutrix told him that she did not want a child
from him, as he took charas and ganja, on which Shiva stated that he will get
her married to some good boy. Thereafter, he gave her fanta to drink and
established physical relation. When he was performing sex with her she felt
pain, on which Shiva stated that the child is born like this. On this the
prosecutrix stated that she did not want the child nor the marriage. She
asked for return of her money and that he should let her go, but he did not let
her go. On the next day, he took her to Corbett Hotel by bus at Ram Nagar.
At the hotel when she was taking bath in the bathroom he was trying to enter
the bathroom by opening door, however she did not let him enter. After she
came out, he gave her a frooti to drink after which she felt dizzy and does
not remember what happened thereafter. Thereafter, she saw a video in the
mobile on seeing which she vomited out. Shiva drank liquor and slept. She
called the Police, however the Police disconnected the phone. Then She
called Vikas Puri Police Station and thereafter she called her sister but got
no help. Thereafter, she called her brother and the next day Police came and
brought her to Delhi. The Police gave a bill of ₹25,000/- spent, to her
brother and now her parents keep the house locked. She further stated that
Shiva Bhaiya had threatened her that if she complains in the Police then he
would kill her and her family members by pistol. She did not lodge the FIR
due to the threat given and that Shiva had made her dirty videos while he
was performing sex with her.
Signature Not Verified
By:JUSTICE
MUKTA GUPTA
11. Vide the impugned order, the learned Additional Sessions Judge after
noting the contentions of the parties, held that the video of the accused and
the prosecutrix played in the Court prima facie shows that the prosecutrix
was conscious, oriented and aware about the nature of the act. The
prosecutrix is seen voluntarily accompanying the accused and her consent
does not appear to be vitiated by any kind of mental disorder. The learned
Additional Sessions Judge further held that admittedly the bipoloar mental
disorder does not permanently affect the mental status of the person
concerned. It involves the episodic attack on the mental psychic of the
person concerned that leads to extreme variations/ fluctuations in his or her
mood. The learned ASJ noted the definition of bipolar disorder as „Manic,
Depressive Psychosis‟ as given in Modi‟s Textbook of Medical
Jurisprudence and Toxicology and held that a person suffering from bipolar
disorder returns to normalcy after attack without impairment of mental
integrity. Hence it is not a permanent mental disorder and temporarily
impacts the medical condition only if there is an episodic attack and the time
period for which it lasts is variable. Further, it only involves mood
fluctuations that may or may not lead to legal insanity. It was also held that
in the instant case there is no evidence on record to suggest that during the
said three days i.e. 21st July, 2021 till 23rd July, 2021 the prosecutrix
suffered any such attack. On the contrary, the videos manifest that the
prosecutrix appears to be in control of her senses, conscious and oriented
and her consent is thus not vitiated by the history of her medical condition.
The learned ASJ further held that there is unexplained and unjustified delay
of nearly 7 days in reporting the matter and in these circumstances, the
possibility of false implication of the accused by the prosecutrix under the
Signature Not Verified
By:JUSTICE
MUKTA GUPTA
influence or pressure of her family members cannot be ruled out. It was
held that the accused is no more required for the purpose of investigation.
Admittedly, he does not have any other previous criminal involvement and
being guided by the sacrosanct principles that „Bail is rule and jail is an
exception‟, bail was granted to the respondent No.2.
12. It is trite law that cancellation of bail granted can be directed either
because the the order granting bail is perverse, illegal, contrary to law or
unjustified or if the accused violates the conditions of grant of bail such as
tempering with the evidence, interfering with the investigation, influencing
the witnesses or fleeing away from justice. In the present case, the petitioner
seeks cancellation of bail on the first ground that the order granting bail is
perverse, illegal and contrary to the settled principles of law of grant of bail.
13. In the decision reported as (2001) 6 SCC 338 Puran and Ors. Vs.
Rambilas and Ors. Hon'ble Supreme Court following the decision in 1978
Crl. LJ 129 Gurcharan Singh vs. State ( Delhi Admn.) held that the concept
of setting aside the unjustified, illegal and perverse order is totally different
from the concept of cancelling the bail on the ground that accused has
misconducted himself or because of some new facts requiring such
cancellation. It was held :
"10. Mr Lalit next submitted that once bail has been granted it
should not be cancelled unless there is evidence that the
conditions of bail are being infringed. In support of this
submission he relies upon the authority in the case of Dolat
Ram v. State of Haryana [(1995) 1 SCC 349 : 1995 SCC (Cri)
237] . In this case it has been held that rejection of bail in a
non-bailable case at the initial stage and the cancellation of
bail already granted have to be considered and dealt with on
different basis. It has been held that very cogent and
overwhelming circumstances are necessary for an order
Signature Not Verified
By:JUSTICE
MUKTA GUPTA
directing the cancellation of the bail already granted. It has
been held that generally speaking the grounds for cancellation
of bail broadly are interference or attempt to interfere with the
due course of administration of justice or evasion or attempt to
evade the due course of justice or abuse of the concession
granted to the accused in any manner. It is, however, to be
noted that this Court has clarified that these instances are
merely illustrative and not exhaustive. One such ground for
cancellation of bail would be where ignoring material and
evidence on record a perverse order granting bail is passed in a
heinous crime of this nature and that too without giving any
reasons. Such an order would be against principles of law.
Interest of justice would also require that such a perverse order
be set aside and bail be cancelled. It must be remembered that
such offences are on the rise and have a very serious impact on
the society. Therefore, an arbitrary and wrong exercise of
discretion by the trial court has to be corrected.
11. Further, it is to be kept in mind that the concept of setting
aside the unjustified illegal or perverse order is totally different
from the concept of cancelling the bail on the ground that the
accused has misconducted himself or because of some new facts
requiring such cancellation. This position is made clear by this
Court in Gurcharan Singh v. State (Delhi Admn.) [(1978) 1
SCC 118 : 1978 SCC (Cri) 41 : AIR 1978 SC 179] . In that case
the Court observed as under: (SCC p. 124, para 16)
"If, however, a Court of Session had admitted an
accused person to bail, the State has two options. It
may move the Sessions Judge if certain new
circumstances have arisen which were not earlier
known to the State and necessarily, therefore, to that
court. The State may as well approach the High Court
being the superior court under Section 439(2) to
commit the accused to custody. When, however, the
State is aggrieved by the order of the Sessions Judge
granting bail and there are no new circumstances that
have cropped up except those already existing, it is
futile for the State to move the Sessions Judge again
and it is competent in law to move the High Court for
Signature Not Verified
By:JUSTICE
MUKTA GUPTA
cancellation of the bail. This position follows from the
subordinate position of the Court of Session vis-à-vis
the High Court."
14. As noted above, contention of learned counsel for the respondent
No.2 is also that the father of the prosecutrix cannot be permitted to act as
legal guardian. In other words, learned counsel for the respondent No.2
contends that the present petition seeking cancellation of bail supported by
the affidavit of the father of the prosecutrix is not maintainable. It may be
noted that the parents of the prosecutrix are the complainants who lodged
the complaint immediately on 21st July, 2021 and certainly fall within the
category of „aggrieved persons‟. Dealing with the locus standi of a person
to challenge the order granting bail, Hon‟ble Supreme Court in Puran &
Ors. (supra) held that since the High Court can suo moto exercise the power
to cancel the bail granted to an accused, any person can file a petition
requesting the High Court to exercise its jurisdiction. Further the present
petition has been filed by the father of the prosecutrix on her behalf. The
Hon‟ble Supreme Court in Puran and Ors. (supra) held :-
"14. Mr Lalit next submitted that a third party cannot move
a petition for cancellation of the bail. He submitted that in
this case the prosecution has not moved for cancellation of
the bail. He pointed out that the father of the deceased had
moved for cancellation of the bail. He relied upon the cases
of Simranjit Singh Mann v. Union of India [(1992) 4 SCC
653 : 1993 SCC (Cri) 22 : AIR 1993 SC 280] and Janata
Dal v. H.S. Chowdhary [(1991) 3 SCC 756 : 1991 SCC (Cri)
933] . Both these cases dealt with petitions under Article 32
of the Constitution of India whereunder a total stranger
challenged the conviction and sentence of the accused. This
Court held that neither under the provisions of the Criminal
Procedure Code nor under any other statute is a third-party
Signature Not Verified
By:JUSTICE
MUKTA GUPTA
stranger permitted to question the correctness of the
conviction and sentence imposed by the court after a regular
trial. It was held that the petitioner, who was a total
stranger, had no locus standi to challenge the conviction
and the sentence awarded to the convicts in a petition under
Article 32. The principle laid down in these cases has no
application to the facts of the present case. In this case the
application for cancellation of bail is not by a total stranger
but it is by the father of the deceased. In this behalf the ratio
laid down in the case of R. Rathinam v. State by
DSP [(2000) 2 SCC 391 : 2000 SCC (Cri) 958] needs to be
seen. In this case bail had been granted to certain persons. A
group of practising advocates presented petitions before the
Chief Justice of the High Court seeking initiation of suo
motu proceedings for cancellation of bail. The Chief Justice
placed the petitions before a Division Bench. The Division
Bench refused to exercise the suo motu powers on the
ground that the petition submitted by the advocates was not
maintainable. This Court held that the frame of sub-section
(2) of Section 439 indicates that it is a power conferred on
the courts mentioned therein. It was held that there was
nothing to indicate that the said power can be exercised only
if the State or investigating agency or a Public Prosecutor
moves a petition. It was held that the power so vested in the
High Court can be invoked either by the State or by any
aggrieved party. It was held that the said power could also
be exercised suo motu by the High Court. It was held that,
therefore, any member of the public, whether he belongs to
any particular profession or otherwise could move the High
Court to remind it of the need to exercise its power suo
motu. It was held that there was no barrier either in Section
439 of the Criminal Procedure Code or in any other law
which inhibits a person from moving the High Court to have
such powers exercised suo motu. It was held that if the High
Court considered that there was no need to cancel the bail
then it could dismiss the petition. It was held that it was
always open to the High Court to cancel the bail if it felt that
there were sufficient reasons for doing so."
Signature Not Verified
By:JUSTICE
MUKTA GUPTA
15. One of the grounds on which the learned Additional Sessions Judge
granted bail to the respondent No.2 is the unexplained and unjustified delay
of nearly 7 days in reporting the matter, thus there being possibility of false
implication of the accused by the prosecutrix under the influence or pressure
of her family members. The learned Additional Sessions Judge failed to
note that a complaint recorded vide DD No. 109-A as noted above was
lodged by the parents of the prosecutrix on 21st July, 2021itself i.e. the day
when the prosecutrix went. Thus on 21st July, 2021 itself it was stated that
their daughter has made a video call to their younger daughter from which it
was revealed that she was with Shiva and he was taking her to Vaishno
Devi. The complaint further stated that the prosecutrix was suffering from
mental illness and that the respondent No.2 had earlier gone to jail, was a
drug addict, that their daughter had been lured and they suspected that he
may not sell her or do any illegal act with her. It is on this complaint when
the location of the mobile phone of the prosecutrix was traced, it was found
that Shiva had actually taken her to Nainital and not Vaishno Devi. The
police then traced them at Nainital and brought them to Delhi on 23rd July,
2021. Thus, there was no delay in reporting the matter to the police and the
action thereon even if the FIR was registered lateron.
16. Further, the learned ASJ though noted that in the statement recorded
on 23rd July, 2021, the prosecutrix stated that she went of her own free
volition but failed to notice that the prosecutrix also stated that the
respondent No.2 was in touch with her or speaking to her for the last 2-3
days only and he was taking her to Vaishno Devi to take out the evil spirit
from her and thus on 21st July, 2021 she left without telling her parents.
Though the statement of the prosecutrix made to the Counsellor is not
Signature Not Verified
By:JUSTICE
MUKTA GUPTA
admissible in evidence, however the same also reveals that she told Shiva
that she wanted a child and that he put vermillion on her head and stated that
now she will have a baby. In the MLC recorded on 23rd July, 2021 it was
stated that forcible sexual intercourse was committed with her two times on
21st July, 2021. In view of the statement of the prosecutrix, since no FIR
was recorded on 23rd July, 2021 itself, repeated complaints were made by
the parents of the prosecutrix to various authorities when finally on 30th July,
2021 the FIR was registered and an application filed before the learned
Metropolitan Magistrate for recording of the statement of the prosecutrix
under Section 164 Cr.P.C. on 31st July, 2021 pursuant whereto her statement
was recorded on 4th August, 2021. In her statement recorded under Section
164 Cr.P.C. she has clearly stated the manner in which the respondent No.2
lured her, that he will get her married to a good boy and then performed
sexual relationship after intoxicating her by giving fanta and frooti. While
granting bail to the respondent No.2, the learned Additional Sessions Judge
totally ignored the statement of the prosecutrix recorded under Section 164
Cr.P.C. and also history noted in the MLC on 23rd July, 2021 itself.
17. As noted above, the respondent No.2 prepared two videos relied by
the learned Additional Sessions Judge to infer the mental state of the
prosecutrix. In the one of the two videos found in the mobile phone of the
prosecutrix, the respondent No.2 is stating that they have got married and he
was taking the prosecutrix to Ram Nagar to perform the marriage again as
they were Ram and Sita and though he was not Ram but his wife was
certainly Sita. Admittedly, no marriage was performed and merely by
putting vermillion on the head of the prosecutrix, she was made to believe
that she had got married to the respondent No.2. The second video of the
Signature Not Verified
By:JUSTICE
MUKTA GUPTA
respondent No.2 clearly shows the mala fide intent of the respondent No.2
wherein he is threatening the brother of the prosecutrix that now he will stay
as a Ghar-Jamayee and the family members will be out of the house.
18. The learned Additional Sessions Judge failed to notice that the
respondent No.2 was living in the neighbourhood of the prosecutrix, thus
was aware of the mental faculties of the victim and taking advantage thereof,
as her marriage was broken and she was eager to get married, he lured her
stating that he would get the evil spirit out of her soul, get her married to a
boy and called her on 21st July, 2021. On the pretext of taking her to
Vaishno Devi, the respondent No.2 took her to Nainital where he performed
sexual relationship by giving intoxicants in the cold drinks. The learned
Trial Court failed to notice that consciousness and orientation are different
from being able to exercise sound mental judgment and to realise that the
victim is being enticed to fall prey to the accused.
19. The Division Bench of this Court in the decision reported as 246
(2018) DLT 204 X vs. State of NCT of Delhi accepting the plea of
„unsoundness of mind‟ under Section 84 IPC taken for an accused who was
suffering from bipolar disorder „Manic Depressive Psychosis‟ noted the
medical literature as under:-
"45. Turning to the medical literature specific to bipolar
disorder, Modi's Textbook of Medical Jurisprudence and
Toxicology (24th Edition), at page 753 defines "Bipolar
Disorder" as "Manic Depressive Psychosis". It describes the
affliction thus: "Bipolar disorder is used for a group of mental
illnesses with primary disturbances of affect, from which all
other symptoms arise. The affect i.e., the mood varies between
extreme poles of cheerfulness and sadness. The illness has a
second characteristic of periodicity. The third characteristic is
returning to normalcy from attack, without impairment of
Signature Not Verified
By:JUSTICE
MUKTA GUPTA
mental integrity. In practice, one finds that a single attack of a
mania or a single attack of depression can occur. It occurs in
persons predisposed to mood disturbances." xxx "The
depressives rarely indulge in petty crimes. A minority may
commit altruistic type of homicide. Aggressive impulses are
normally inhibited by the psychotic condition. Hypochondrial
delusions are often associated with homicidal impulses. Hence,
near relatives may be killed in order to prevent them from
inheriting or developing some serious disease. The psychotic
depressive kills from motive, to his way of thinking, and is
inherently good as opposed to the person with paranoid illness,
who is motivated by spite and a desire to avenge the imaginary
wrong. Homicidal and suicidal tendencies frequently co-exist in
depressives, which stems from hopelessness, futility and
despair. They believe that the killing of loved ones followed by
self destruction is the only practical solution."
46. In the Cambridge Handbook of Forensic Psychology
edited by Jennifer M. Brown and Elizabeth A. Campbell, (4th
Printing 2013), it is inter alia observed that bipolar disorder,
previously known as manic depression, has a mean onset age of
about 30 and is characterized by mood swings that can range
from extreme happiness (mania) to extreme sadness
(depression) over a period of days or months. It is further noted
that:
"In the depressive phase, symptoms include feeling sad
and hopeless, lack of energy, difficulty concentrating, loss
of interest in everyday activities, difficulty sleeping,
feelings of worthlessness and despair, and suicidal
thoughts. In the manic phase, which usually comes after
several periods of depression, symptoms may include
feeling elated and full of energy, talking very quickly, and
feeling self-important with great ideas not known to
others, but also being easily distracted, irritated or
agitated, not sleeping or eating, and doing things that
bring negative consequences, such as over spending and
dominating others. Delusions stemming from these
disorders can lead the individuals concerned to become
violent, for example if they believe that the lives of their
Signature Not Verified
By:JUSTICE
MUKTA GUPTA
families have become intolerable (depressive phase), or
where they believe that no one must stand in the way of
their important plans (manic phase). The mental disorder
can contribute directly to serious violence, e.g. multiple
homicide of loved family members. As with schizophrenia,
the precise cause of bipolar disorder is unknown, although
it is thought to involve physical, environmental and social
factors, with about 10-15% of sufferers nearest relatives
also being affected."
47. In an article titled Patients with Affective Disorders
admitted to Maximum Secure Care (1999-2003) authored by T.
White, a Consultant Forensic Psychiatrist based in Perth,
Australia (printed in Med.Sci.Law CRL A 1308/2015 Page 20
of 24 (2005) Vol. 45 No.2 p.142), it is noted that: "The
McArthur Violence Risk Assessment Study (Steadman et al.,
1998) recently reported that patients with bipolar disorder or
major depression were more likely than those with
schizophrenia to be violent over the course of a year. Similarly,
Swanson et al. (1990) in an early analysis of the National
Institute for Mental Health Catchment Area Study, reported an
equally strong association for depression, bipolar disorder and
schizophrenia with reported violence. In addition, the National
Confidential Inquiry into Suicides and Homicides (Appleby,
1999) appeared to demonstrate a stronger relationship between
depressive symptoms than positive psychotic symptoms in
mentally disordered homicide offenders."
20. Some of the main factors to be borne in mind while considering an
application for grant of bail are:
(i) whether there is any prima facie or reasonable ground to believe that `
the accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on bail;
Signature Not Verified
By:JUSTICE
MUKTA GUPTA
(v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail.
21. As noted above, an order granting granting bail or rejecting bail is not
to be interfered normally and it is incumbent upon the High Court to
exercise its discretion judiciously, cautiously and strictly in compliance with
the principles laid down in a plethora of decisions of the Hon‟ble Supreme
Court in regard to the cancellation of bail. (See AIR 2011 SC 274 Prasanta
Kumar Sarkar vs. Ashis Chatterjee and Ors.)
22. Considering the fact that the impugned order granting bail to the
respondent No.2 suffers from gross-illegality as the learned ASJ totally
ignored the statement of the prosecutrix recorded under Section 164 Cr.P.C.,
the seriousness of the offence, that the statement of the prosecutrix is still to
be recorded before the learned Trial Court, and that the respondent No.2 is
living in the vicinity of the prosecutrix and is thus likely to influence the
prosecutrix by luring her again and/or intimidating her, the impugned order
dated 7th September, 2021 is set aside. The bail granted to the respondent
No.2 is cancelled. Respondent No.2 will surrender to custody within one
week.
23. Petition is disposed of.
24. Order be uploaded on the website of the Court.
(MUKTA GUPTA)
JUDGE
MARCH 04, 2022
'ga'
Signature Not Verified
By:JUSTICE
MUKTA GUPTA
