SADHNA CHAUDHARY v. THE STATE OF RAJASTHAN & Anr.

From the Judgment and Order dated 25.08.2021 of the High Court of Judicature for Rajasthan, Bench at Jaipur in SB Criminal Misc. Bail Application No. 6394 of 2021. Ms. Shobha Gupta, Rajendra Kr. Panigrahi, Nishant Bahuguna, Vidit Agarwal, Subham Jalan, Ms. Prachi Sharma, Ms. Sakshi Tiwari, Advs. for the Appellant. Ketan Paul, Amartya Bhushan, Tushar Bhushan, Dr. Nirmal Chopra, Manav, Advs. for the Respondents. The Judgment of the Court was delivered by VIKRAM NATH, J. Leave granted.

#2. The appellant is the complainant/victim/ prosecutrix. She has filed this appeal assailing the correctness of the judgment and order dated 25.08.2021 passed by the Rajasthan High Court, Bench at Jaipur in S.B. Criminal Misc. Bail Application No.6394 of 2021 (Kanwar Pal Singh Vs. State of Rajasthan), whereby the High Court allowed the application for the relief of anticipatory bail under Section 438 CrPC in FIR No.161 of 2020, Police Station-Karni Vihar, Jaipur, under Sections 323, 341, 354, 379 and 376 IPC.

#3. As the present case relates to an order granting anticipatory bail, we are consciously referring to the facts and the arguments in brief so that none of the parties are prejudiced or the Trial Court would be influenced by any of the observations, which may be made by us in this order.

#4. The prosecution story in brief is that, sometimes in 2018, when the respondent no.2 was posted as a Station House Officer, Mahila Thana, Jhunjhunu, the sister of the appellant had made a complaint against her in-laws at the same police station. The respondent no.2 had kept with himself, the Bank Pass-book, Marriage Registration Certificate, Marriage Photographs, Aadhar Card and Birth Certificate relating to her sister B C D E F G H SADHNA CHAUDHARY v. THE STATE OF RAJASTHAN & ANR. [VIKRAM NATH, J.] 241 and had told her to collect the same later. On 25.09.2018, when the appellant was called to collect the papers from the respondent no.2, and upon her reaching Jhunjhunu, she was informed that papers may be collected from his official residence, where she had to compulsorily go as she had to return to Jaipur on the same day. At the residence, the respondent no.2 offered buttermilk to the appellant, which she claims to have innocently consumed, but apparently the same was laced with drugs resulting into the appellant losing her consciousness. When she regained consciousness, she found herself in a very awkward situation and immediately realized that she had been exploited by the respondent no.2. The respondent no.2 is said to have threatened her that he has made videos and clicked photographs in obscene and objectionable conditions on his mobile and if she did not continue to accede to his demands and commands, he would make everything public.

#5. The exploitation of the appellant is said to have continued for almost two years. In May, 2020, respondent no.2 came to her residence, where she resides with her husband and children. He forcefully took her in his Jeep to some unknown place, physically assaulted her, snatched away her mobile, then after driving to various places at some point his wife and children arrived and they also assaulted her, as a result of which, she became unconscious. She was saved by the patrolling vehicle of the Police department, whereafter she lodged the FIR No.161 of 2020 on 01.06.2020 for the offences punishable under Sections 376, 323, 341, 354 and 379 IPC at the Karni Vihar Police Station, Jaipur. The FIR was only about that day’s incident, however, later on, when the appellant recovered, she narrated the whole story in her statement under Section 164 CrPC.

#6. Further, the case of the appellant is that respondent no.2 misusing his official position got a false report registered through his wife against the appellant five days later on 05.06.2020, which was registered as FIR No.0234 of 2020, Police Station-Jhotwara, Jaipur. It is also submitted that the said FIR after investigation has been found to be containing completely false and incorrect facts and a closure report has already been submitted. However, insofar as the FIR lodged by the appellant is concerned, as the respondent no.2 has not been taken into custody, he is not co-operating with the investigation and several articles and mobiles need to be recovered from him for a fair and proper investigation. It is also necessary to have control over the obscene videos and photographs A B C D E F G H 242 SUPREME COURT REPORTS [2022] 13 S.C.R. A of the appellant, as such his judicial custody is required considering the seriousness of the allegations.

#7. The order of anticipatory bail, which has been passed in a cursory manner literally treating the averments contained in the petition before the High Court to be correct needs to be set aside. It is also the case of the appellant that respondent no.2 has further misused his official position in order to lodge several false complaints not only against the appellant but her family members also only in order to pressurize her to withdraw the present FIR.

#8. The State-respondent has filed a detailed counter-affidavit. Relevant paragraph nos.5 to 10 are relevant which read as follows: “5. It is most respectfully submitted that the investigation in the FIR 161/2020 has unearthed substantial evidence which proves that Accused/Respondent No. 2, who is himself a police officer, is guilty of offences under Sections 323, 341, 354, 504, 379, 376 of IPC, as detailed in the Factual Report dated 23.11.2021.

#6. Further, on 05.06.2020, another FIR No. 234/2020 was registered at the instance of one Smt Usha Kanwar, i.e, wife of Respondents No. 2, at the Police Station Jhotwara, Jaipur West, under Sections 143,323,341, 384, 504, 379, 452, of the IPC. After detailed investigation, it was found that the said FIR was registered on the basis of false information and no offence was made out against the Petitioner and any members of her family. As such, Final Report under Section 173 CrPC already been filed on 27.09.2021 before the court of learned a CJM Class- 3 Jaipur City, wherein next date of hearing is fixed as 25.01.2022. A true translate copy of the Factual Report dated 25.11.2021 detailing the findings of the investigation and its status is annexed herewith and marked as Annexure-R2 (Page No. 45 to 99).

#7. In addition to the facts stated in the two Factual Reports above, it is most respectfully submitted that the Accused/ Respondent No. 2 is a police officer who is well versed with the process of law and an insider to law enforcement B C D E F G H SADHNA CHAUDHARY v. THE STATE OF RAJASTHAN & ANR. [VIKRAM NATH, J.] 243 machinery in the State of Rajasthan, therefore, it is even more important that the investigation proceed without the Accused/ Respondent No. 2 being under the protection of the Hon’ble Court.

#8. Further, the fact unearthed in the investigation till now detailed in the above two Factual Reports corroborate and prove the allegations made by the Petitioner. In addition, the FR in FIR 234/2020 details how a false case was sought to be created against the Petitioner and her family.

#9. It is most respectfully submitted that on the strength of facts laid out above, the answering Respondent seeks cancellation of the anticipatory bail granted on Accused/Respondent No. 2. In particular, it is imperative that all efforts be made to find the obscene photographs, videos, mobile phone and clothes bag of the victim in addition to other pieces of evidence that the Accused/Respondent No.2 alone will have knowledge of. It may be noted that the Accused/Respondent No. 2 has not fully cooperated with the investigation as noted in the Factual Report dated 23.11.2021.

#10. In light of the above submissions, it is most respectfully prayed before this Hon’ble Court that impugned order granting anticipatory bail Respondent No. 2 be set aside and the Respondent-State be at liberty to proceed with the investigation as it sees fit, without the accused being under any protection from this Hon’ble Court.”

#9. In the aforesaid counter affidavit, the Additional Deputy Commissioner of Police, Jaipur (West), Jaipur duly authorized by the State of Rajasthan, who filed the affidavit, has stated in paragraph 5 that substantial evidence has been unearthed which proves that the respondent no.2, who is a police officer, is guilty of the offences, details whereof are mentioned in the report dated 23.11.2021.

#10. In paragraph 6, it has been stated that respondent no.2 managed to get a false report lodged against the appellant registered as FIR No.234 of 2020, which after detailed investigation was found to be based on false information and no offence was made out against the appellant or her family members. The final report under Section 173(2) CrPC has already been submitted on 27.09.2021. A B C D E F G H 244 SUPREME COURT REPORTS [2022] 13 S.C.R. A B C D E F G

#11. In paragraph 7, it is stated that the police officer, who is well- versed in the process of law and a part of the law enforcement machinery, it is all the more important that the investigation must proceed without the respondent no.2 being under the protection of this Court.

#12. In paragraph 9, it is stated that order for granting anticipatory bail needs to be cancelled in particular for the reason that efforts are still on to recover the obscene photographs, videos, mobile-phone and the bag of clothes of the victim in addition to other pieces of evidence from the respondent no.2, who alone would be having knowledge of the same. It is also specifically stated in paragraph 9 that he has not fully cooperated with the investigation as is apparent from the factual report dated 23.11.2021.

#13. On the other hand, respondent no.2 has sought to justify the order passed by the High Court. According to the learned counsel, the appellant is exploiting the respondent no.2 and his family members, the reasons given by the High Court while passing the order of anticipatory bail is based on legally admissible facts and the circumstances placed before the High Court. He also submitted that once the High Court has exercised its discretion, this Court may not interfere with the same. It is also submitted that other FIR’s registered against the appellant and her relatives is by third persons/strangers who are victims of extortion by the appellant and her relatives. They have nothing to do with the respondent no.2.

#14. Law on the applicability or grant of anticipatory bail under section 438 Cr.P.C. may be briefly summarised as under: -

14.1.

14.2. In Shri Gurbaksh Singh Sibbia and Others v. State of Punjab1, a Constitution Bench of this Court, Chief Justice Y.V. Chandrachud, speaking for the Court dealt with in detail on the considerations for grant of anticipatory bail. In Siddharam Satlingappa Mhetre vs. State of Maharashtra and Others2; this Court relying upon the Constitution Bench judgment in Shri Gurbaksh Singh Sibbia laid down in paragraph 112 of the report the following factors and parameters to be considered while dealing with an application for anticipatory bail: