Madhya Pradesh High Court

Prosecutrix vs The State Of Madhya Pradesh on 10 January, 2022

Author: Gurpal Singh Ahluwalia

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         THE HIGH COURT OF MADHYA PRADESH
                   M.Cr.C. No.58368/2021
           Prosecutrix Vs. State of M.P. and another

                 Through Video Conferencing
Gwalior, Dated:10-01-2022

      Shri Ankur Maheshwari, Advocate for applicant.

      Shri APS Tomar, Panel Lawyer for respondent no.1/State.

      Shri S.K. Tiwari, Advocate for respondent no.2.

      This application under Section 439 (2) of Cr.P.C. has been filed

for setting aside the order dated 28/8/2021 passed by Special Judge

(POCSO Act), Gwalior in Bail Application No.2352/2021, by which

the respondent no.2 has been granted bail.

2.    It is submitted by the counsel for the applicant that while

granting bail, the Court below must apply its mind to the facts of the

case. The gravity of the offence is also to be considered. However,

without applying any mind and without assigning any reason, the

Court below has granted bail to the respondent no.2. It is submitted

that according to the prosecution case, the prosecutrix is minor and is

a student of Class 10th and from the month of September, 2020 the

applicant was visiting her house for teaching her. For the first two

months the respondent no.2 taught the prosecutrix properly, but

thereafter, he started misbehaving with her. It is submitted that the

respondent no.2 used to touch the private parts of the prosecutrix and

in the absence of the mother of the prosecutrix, he used to commit

rape on her. On 29/3/2021 at about 1-3 PM when the mother of the
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          THE HIGH COURT OF MADHYA PRADESH
                    M.Cr.C. No.58368/2021
            Prosecutrix Vs. State of M.P. and another

prosecutrix was not in the house and by threatening the handicapped

brother of the prosecutrix, it was alleged that respondent no.2

committed rape on her. The respondent no.2 also compelled the

prosecutrix to consume multiple pills, as a result, the prosecutrix had

severe bleeding and acute pain in her stomach. Thereafter, the

respondent no.2 used to threaten the mother of the prosecutrix on

phone and when the mother of the prosecutrix enquired about the

situation, then the prosecutrix narrated the incident to her mother. It

is submitted that the respondent no.2 was arrested on 12/7/2021 and

he moved an application for grant of regular bail. The Court below by

order dated 28/8/2021 passed in BA No.2352/2021 allowed the said

application without assigning any reason. It is submitted that it is true

that the last incident of rape took place on 29/3/2021, but the FIR

was lodged on 9/7/2021, however, the prosecutrix was treated in Lok

Nayak Hospital, New Delhi. The applicant has also filed the copy of

the outpatient registration card issued by the Lok Nayak Hospital,

New Delhi. It is further submitted that the Supreme Court in the cases

of Mahipal Vs. Rajesh Kumar alias Polia and another reported in

(2020) 2 SCC 118 and Dr. Naresh Kumar Mangla Vs. Anita

Agarwal and others reported in 2021 (1) MPLJ (Cri.) (SC) 353 has

laid down relevant consideration which should be taken into
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                    M.Cr.C. No.58368/2021
            Prosecutrix Vs. State of M.P. and another

consideration for grant of bail.

3.    Per contra, it is submitted by the counsel for the respondent

no.2 that the relevant factors for consideration for cancellation of bail

are completely different. A bail order can be recalled only if the same

was misused by the accused, however, in the present case there is no

allegation that any threat was ever given by the respondent no.2 or he

has misused the liberty in any manner.

4.    Heard learned counsel for the parties.

5.    It is not the case of the applicant that the High Court has

granted bail to the respondent No.2.

6.    The Supreme Court in the case of Mahipal (supra) has held as

under:-

         16. The considerations that guide the power of an
      appellate court in assessing the correctness of an order
      granting bail stand on a different footing from an
      assessment of an application for the cancellation of bail.
      The correctness of an order granting bail is tested on
      the anvil of whether there was an improper or arbitrary
      exercise of the discretion in the grant of bail. The test is
      whether the order granting bail is perverse, illegal or
      unjustified. On the other hand, an application for
      cancellation of bail is generally examined on the anvil
      of the existence of supervening circumstances or
      violations of the conditions of bail by a person to whom
      bail has been granted. In Neeru Yadav v. State
      ofU.P. [Neeru Yadav v. State of U.P., (2014) 16 SCC
      508 : (2015) 3 SCC (Cri) 527] , the accused was
      granted bail by the High Court [Mitthan Yadav v. State
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                    M.Cr.C. No.58368/2021
            Prosecutrix Vs. State of M.P. and another

      of U.P., 2014 SCC OnLine All 16031] . In an appeal
      against the order [Mitthan Yadav v. State of U.P., 2014
      SCC OnLine All 16031] of the High Court, a two-Judge
      Bench of this Court surveyed the precedent on the
      principles that guide the grant of bail. Dipak Misra, J.

(as the learned Chief Justice then was) held : (Neeru Yadav case [Neeru Yadav v. State of U.P., (2014) 16 SCC 508 : (2015) 3 SCC (Cri) 527] , SCC p. 513, para

12) "12. ... It is well settled in law that cancellation of bail after it is granted because the accused has misconducted himself or of some supervening circumstances warranting such cancellation have occurred is in a different compartment altogether than an order granting bail which is unjustified, illegal and perverse. If in a case, the relevant factors which should have been taken into consideration while dealing with the application for bail have not been taken note of, or bail is founded on irrelevant considerations, indisputably the superior court can set aside the order of such a grant of bail. Such a case belongs to a different category and is in a separate realm. While dealing with a case of second nature, the Court does not dwell upon the violation of conditions by the accused or the supervening circumstances that have happened subsequently. It, on the contrary, delves into the justifiability and the soundness of the order passed by the Court."

The Supreme Court in the case of Vipan Kumar Dhir Vs.

State of Punjab reported in 2021 SCC OnLine SC 854 has held as

under:-

THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.58368/2021 Prosecutrix Vs. State of M.P. and another

"9. At the outset, it would be fruitful to recapitulate the well-settled legal principle that the cancellation of bail is to be dealt on a different footing in comparison to a proceeding for grant of bail. It is necessary that 'cogent and overwhelming reasons' are present for the cancellation of bail. Conventionally, there can be supervening circumstances which may develop post the grant of bail and are non-conducive to fair trial, making it necessary to cancel the bail. This Court in Daulat Ram v. State of Haryana observed that:

"Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) 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. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial."

10. These principles have been reiterated time and again, more recently by a 3-judge Bench of this Court in X v. State of Telegana.

11. In addition to the caveat illustrated in the cited decision(s), 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

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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. This Court has repeatedly viewed that while granting bail, especially anticipatory bail which is per se extraordinary in nature, the possibility of the accused to influence prosecution witnesses, threatening the family members of the deceased, fleeing from justice or creating other impediments in the fair investigation, ought not to be overlooked."

7. Thus, it is clear that the bail granted to an accused can be

cancelled on the following grounds:-

i- Misuse of the liberty by the accused.

ii- Grant of bail without due application of mind.

8. So far as cancellation of bail on the ground that the bail was

granted without due application of mind by ignoring material

evidence available on record is concerned, the same can be done by a

superior Court. The submission made by the counsel for respondent

no.2 that once the bail order has been passed then it cannot be

cancelled except when the liberty is misused by the accused, is

misconceived and is hereby rejected. The Supreme Court in the case

of Mahipal (supra) has held as under:-

25. Merely recording "having perused the record" and "on the facts and circumstances of the case" does

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not subserve the purpose of a reasoned judicial order. It is a fundamental premise of open justice, to which our judicial system is committed, that factors which have weighed in the mind of the Judge in the rejection or the grant of bail are recorded in the order passed. Open justice is premised on the notion that justice should not only be done, but should manifestly and undoubtedly be seen to be done. The duty of Judges to give reasoned decisions lies at the heart of this commitment. Questions of the grant of bail concern both liberty of individuals undergoing criminal prosecution as well as the interests of the criminal justice system in ensuring that those who commit crimes are not afforded the opportunity to obstruct justice. Judges are duty-bound to explain the basis on which they have arrived at a conclusion.

26. In Kalyan Chandra Sarkar v. Rajesh Ranjan [Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528 : 2004 SCC (Cri) 1977] , a two- Judge Bench of this Court was required to assess the correctness of a decision [Rajesh Ranjan v. State of Bihar, Criminal Misc. No. 28179 of 2002, order dated 23-5-2003 (Pat)] of a High Court enlarging the accused on bail. Santosh Hegde, J. speaking for the Court, discussed the law on the grant of bail in non-bailable offences and held : (SCC p. 535, para 11) "11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence.

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Any order devoid of such reasons would suffer from non-application of mind."

(emphasis supplied)

27. Where an order refusing or granting bail does not furnish the reasons that inform the decision, there is a presumption of the non-application of mind which may require the intervention of this Court. Where an earlier application for bail has been rejected, there is a higher burden on the appellate court to furnish specific reasons as to why bail should be granted.

28. The perfunctory analysis by the High Court in the present case cannot be sustained. For the reasons indicated above, the appeal is allowed and the order [Rajesh Kumar v. State of Rajasthan, 2019 SCC OnLine Raj 5197] of the High Court enlarging the first respondent on bail is set aside.

In the case of Dr. Naresh Kumar Mangla (supra) it has been

held by the Supreme Court as under:-

15. It is a well settled principle of law that the setting aside of an "unjustified, illegal or perverse order" granting bail is distinct from the cancellation of bail on the ground of the supervening misconduct of the accused or because some new facts have emerged, requiring cancellation. In Puran vs. Ramvilas, (2001) 6 SCC 338, this Court has held that where an order granting bail ignores material on record or if a perverse order granting bail is passed in a heinous crime without furnishing reasons, the interests of justice may require that the order be set aside and bail be cancelled. The recording of no reasons is one end of the spectrum. The other end of the domain for interference with an order granting anticipatory bail (into which the present case settles) is where the reasons are contrary to the material on record and hence found to suffer from perversity.

16. The facts which must be borne in mind while considering an application for the grant of anticipatory bail have been elucidated in the decision of this Court

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in Siddharam Satlingappa Mhetre vs. State of Maharashtra, 2011(2) M.P.L.J. (Cri.) (S.C.) 116 = (2011) 1 SCC 694 and several other decisions. The factors to be considered include:--

"112. ...

(i) the nature and gravity of the accusation and the exact role of the accused;

(ii) the antecedents of the applicant including whether the accused has previously undergone imprisonment on a conviction by a Court in respect of a cognizable offence;

(iii) the possibility of the applicant fleeing from justice;

(iv) the likelihood of the accused repeating similar or other offences;

(v) whether the accusations have been made only with the object of injuring or humiliating the applicant by arresting them;

(vi) the impact of the grant of anticipatory bail particularly in cases of magnitude affecting a large number of people;

(vii) The Court must carefully evaluate the entire material against the accused. The Court must also clearly comprehend the exact role of the accused in the case. Cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the Court should be considered with even greater care and caution because over implication in such cases is a matter of common knowledge and concern;

(viii) 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 the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;

(ix) the reasonable apprehension of tampering of the witnesses or apprehension of threat to the complainant;

(x) 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 is entitled to an order of bail.

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113. Arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case. The Court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record."

Adverting to the above observations, in Jai Prakash Singh vs. State of Bihar, 2012(2) M.P.L.J. (Cri.) (S.C.) 378 = (2012) 4 SCC 379, this Court held :- "19. Parameters for grant of anticipatory bail in a serious offence are required to be satisfied and further while granting such relief, the Court must record the reasons... Anticipatory bail can be granted only in exceptional circumstances where the Court is prima facie of the view that the applicant has falsely been roped in the crime and would not misuse his liberty. (See D.K. Ganesh Babu vs. P. T. Manokaran, (2007) 4 SCC 434 : (2007) 2 SCC (Cri) 345, State of Maharashtra vs. Mohd. Sajid Husain Mohd. S. Husain, (2008) 1 SCC 213 : (2008) 1 SCC (Cri) 176 and Union of India vs. Padam Narain Aggarwal, (2008) 13 SCC 305 : (2009) 1 SCC (Cri) 1.)"

17. In the recent decision of the Constitution Bench in Sushila Aggarwal vs. State (NCT of Delhi), 2020(2) M.P.L.J. (Cri.) (S.C.) 381 = (2020) 5 SCC 1 the considerations which ought to weigh with the Court in deciding an application for the grant of anticipatory bail have been reiterated. The final conclusions of the Court indicate that:--

"92.1... The application seeking anticipatory bail should contain bare essential facts relating to the offence, and why the applicant reasonably apprehends arrest, as well as his side of the story. These are essential for the Court which should consider his application, to evaluate the threat or apprehension, its gravity or seriousness and the appropriateness of any condition that may have to be imposed.

92.3...While considering an application (for grant of anticipatory bail) the Court has to consider the nature of

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the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence (including intimidating witnesses), likelihood of fleeing justice (such as leaving the country), etc. 92.4. Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail, or refuse it. Whether to grant or not is a matter of discretion; equally whether and if so, what kind of special conditions are to be imposed (or not imposed) are dependent on facts of the case, and subject to the discretion of the Court."

18. The Constitution Bench has reiterated that the correctness of an order granting bail is subject to assessment by an appellate or superior Court and it may be set aside on the ground that the Court granting bail did not consider material facts or crucial circumstances. A two judge Bench of this Court, in Kanwar Singh Meena vs. State of Rajasthan, (2012) 12 SCC 180, noted that:--

"10. Thus, Section 439 of the Code confers very wide powers on the High Court and the Court of Session regarding bail. But, while granting bail, the High Court and the Sessions Court are guided by the same considerations as other Courts. That is to say, the gravity of the crime, the character of the evidence, position and status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of his tampering with the witnesses and obstructing the course of justice and such other grounds are required to be taken into consideration. Each criminal case presents its own peculiar factual scenario and, therefore, certain grounds peculiar to a particular case may have to be taken into account by the Court. The Court has to only opine as to whether there is prima facie case against the accused. The Court must not undertake meticulous examination of the evidence collected by the police and comment on the same. Such assessment of evidence and premature comments are

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likely to deprive the accused of a fair trial. While cancelling the bail under Section 439(2) of the Code, the primary considerations which weigh with the Court are whether the accused is likely to tamper with the evidence or interfere or attempt to interfere with the due course of justice or evade the due course of justice. But, that is not all. The High Court or the Sessions Court can cancel the bail even in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If the Court granting bail ignores relevant materials indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions Court would be justified in cancelling the bail. Such orders are against the well-recognised principles underlying the power to grant bail. Such orders are legally infirm and vulnerable leading to miscarriage of justice and absence of supervening circumstances such as the propensity of the accused to tamper with the evidence, to flee from justice, etc. would not deter the Court from cancelling the bail. The High Court or the Sessions Court is bound to cancel such bail orders particularly when they are passed releasing the accused involved in heinous crimes because they ultimately result in weakening the prosecution case and have adverse impact on the society. Needless to say that though the powers of this Court are much wider, this Court is equally guided by the above principles in the matter of grant or cancellation of bail." (emphasis supplied)

Recently, this Court in Myakala Dharmarajam vs. State of Telangana, 2020 MhLJ Online (Cri.) (S.C.) 5 = (2020) 2 SCC 743 reiterated the above principles and stated :--

"9. It is trite law that cancellation of bail can be done in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If the Court granting bail ignores relevant material indicating prima facie involvement of the Accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the Accused, the High Court or the Sessions Court would be justified in

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cancelling the bail."

19. It is apposite to mention here the distinction between the considerations which guide the grant of anticipatory bail and regular bail. In Pokar Ram vs. State of Rajasthan, (1985) 2 SCC 597, while setting aside an order granting anticipatory bail, this Court observed:--

"5. Relevant considerations governing the Court's decision in granting anticipatory bail under Section 438 are materially different from those when an application for bail by a person who is arrested in the course of investigation as also by a person who is convicted and his appeal is pending before the higher Court and bail is sought during the pendency of the appeal. Three situations in which the question of granting or refusing to grant bail would arise, materially and substantially differ from each other and the relevant considerations on which the Courts would exercise its discretion, one way or the other, are substantially different from each other. This is necessary to be stated because the learned Judge in the High Court unfortunately fell into an error in mixing up all the considerations, as if all the three become relevant in the present situation.

6. The decision of the Constitution Bench in Gurbaksh Singh Sibbia vs. State of Punjab [(1980) 2 SCC 565 : 1980 SCC (Cri) 561] clearly lays down that "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". Unlike a post-arrest order of bail, it 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. A direction under Section 438 is intended to confer conditional immunity from the touch as envisaged by Section 46(1) or confinement. In para 31, Chandrachud, C.J. clearly demarcated the distinction between the relevant considerations while examining an application for anticipatory bail and an application for bail after

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arrest in the course of investigation. Says the learned Chief Justice that 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. It was observed that "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". Some of the relevant considerations which govern the discretion, noticed therein are "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". A caution was voiced that "in the evaluation of the consideration whether the applicant is likely to abscond, there can be no presumption that the wealthy and the mighty will submit themselves to trial and that the humble and the poor will run away from the course of justice, any more than there can be a presumption that the former are not likely to commit a crime and the latter are more likely to commit it."

Judged in the light of the above principles, the judgment of the Single Judge of the High Court of Judicature at Allahabad is unsustainable. The FIR contains a recital of allegations bearing on the role of the accused in demanding dowry, of the prior incidents of assault and the payment of moneys by cheque to the in-laws of the deceased. The FIR has referred to the telephone calls which were received both from the father-in-law of the deceased on the morning of 3 August 2020 and from the deceased on two occasions on the same day- a few hours before her body was

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found. The grant of anticipatory bail in such a serious offence would operate to obstruct the investigation. The FIR by a father who has suffered the death of his daughter in these circumstances cannot be regarded as "engineered" to falsely implicate the spouse of the deceased and his family. We hasten to add that our observations at this stage are prima facie in nature, and nothing that we have said should be construed as a determination on the merits of the case which will be adjudicated at the trial.

D. Transfer of further investigation to the CBI.

9. If the order passed by the Court below is considered in the

light of the judgment passed by the Supreme Court, it is clear that

except by mentioning that there is no possibility of his absconding or

tampering with the prosecution case as well as his criminal

antecedents coupled with the fact that there is a possibility of delay in

trial as well as after considering the circumstances, the respondent

no.2 is entitled for bail. In the light of the judgment passed by the

Supreme Court in the case of Mahipal (supra), the aforesaid

observations made by the Court below cannot be said to be

application of mind. The Court below has not considered that the

allegations against the respondent no.2 are that in the capacity of a