CASE DETAILS v. DILIP KUMAR @ DEEPU @ DEPAK & Anr.

Code of Criminal Procedure, 1973 – s. 439 – Special powers of High Court or Court of Session regarding bail – Grant of bail – Allegation of gang rape of minor girl aged 15 years, threat of making video of rape recorded viral and extortion – Registration of FIR by the complainant- uncle for the minor girl for off ences punishable u/ss. 376D, 384, 506 IPC, s. 3 to 6 of POCSO Act, s. 3(2)(v) of the 1989 Act and s. 66 of the 2000 Act against three accused, one son of the sitting MLA, other an acquaintance and the third one the manager of the hotel where the alleged incident occurred – Grant of bail by the High Court – Justifi cation: Held: Instant case is a heinous one and would be a onslaught on the dignity of the womanhood – Father of the victim was a police constable, far below in the hierarchy of service – One of the accused was the son of a sitting MLA and another accused seems to have criminal antecedents and the third accused was the manager of the Hotel where the alleged incident of gang rape occurred – Reason assigned for 13 month delay in fi ling the complaint was constant threat posed by the accused persons of making the video of rape to go viral, especially being in a domineering position – Fact 469 470 SUPREME COURT REPORTS [2023] 11 S.C.R. of delay prima facie cannot be held against the prosecution – Genuineness of the complaint cannot be viewed with doubt nor it can be held that by itself would be suffi cient ground to enlarge the accused on bail – Prosecutrix made allegations against the concerned accused and it becomes amply clear from the plain reading of the complaint as well as the testimony of the prosecutrix that accused persons had indeed participated in the gang rape – High Court erred in not considering the basic facts while considering the prayer for bail – Court framed charges, prima facie discloses the possibility and reasonable suspicion of the accused prima facie culpability – Impugned order granting bail not only bereft of material particulars which would justify grant of bail, but seems that the High Court got swayed on the ground of delay and the video having not been recovered during the course of investigation and gave a complete go by to the allegation made in the FIR and statement recorded as also the testimony of the prosecutrix before the court – Thus, the order of the High Court set aside – Penal Code, 1860 – ss.

376D, 384, 506 – Protection of Children from Sexual Off ences Act, 2012 – s. 3 to 6 – Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 – s. 3(2)(v) – Information Technology Act, 2000 – s. 66. [Paras 17, 20-21, 23-28] Bail – Grant of – Parameters to be considered: Held: Grant of bail is a discretionary relief – Such discretion is to be exercised in a judicious manner and not as a matter of course – Grant of bail is dependant upon contextual facts of the matter and may vary from case to case – There cannot be any exhaustive parameters for considering the application for grant of bail – However, while granting bail the court has to keep in mind the nature of accusations, severity of the punishment, if the accusations entails a conviction and the nature of evidence in support of the accusations – Reasonable apprehensions of the witnesses being tempered with or the apprehension of there being a threat for the complainant – Prima facie satisfaction of the Court in support of the charge – Frivility of 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. [Para 12] Bail – Cancellation of grant of bail – Factors to be considered: Held: There should be presence of cogent and overwhelming circumstances – Bail once granted cannot be cancelled in a mechanical BHAGWAN SINGH v.

DILIP KUMAR @ DEEPU @ DEPAK AND ANOTHER` 471 manner without considering whether any supervening circumstances have rendered it in conducing to allow fair trial – 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. [Paras 13, 16] Delay/laches – Delay of more than one year in lodging an FIR – Eff ect of, on the prosecution case: Held: Delay by itself would not be fatal to the prosecution case and the criminality attached to the incident would not disappear or get extinguished by virtue of such delay – It all depends upon facts that may unfold in given circumstances and same would vary from case to case – If the prosecution attempts to improvise its case stage by stage and step by step during the interregnum period, in such circumstances accused would be justifi ed in contending that delay was fatal.

LIST OF CITATIONS AND OTHER REFERENCES Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and another (2004) 7 SCC 528; Daulat Ram and others v. State of Haryana (1995) 1 SCC 349: [1994] 6 Suppl. SCR 69; Kashmira Singh v. Duman Singh (1996) 4 SCC 693; xxx v. State of Telangana (2018) 16 SCC 511 : [2018] 4 SCR 466; Vipin Kumar Dhir v. State of Punjab 2021 SCC Online SC 854; Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598 : [2002] 2 SCR 526; Prashanta Kumar Sarkar v. Ashish Chatterjee and another (2010) 14 SCC 496 : [2010] 12 SCR 1165 – referred to. OTHER CASE DETAILS INCLUDING IMPUGNED ORDER AND APPEARANCES CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 2560 of 2023. From the Judgment and Order dated 06.04.2023 of the High Court of Judicature for Rajasthan at Jaipur in SBCRMBA No. 1540 of 2023. With Criminal Appeal No. 2561 of 2023. 472 SUPREME COURT REPORTS [2023] 11 S.C.R. Appearances: Anuj Bhandari, Gaurav Jain, Rajat Gupta, Advs. for the Appellant.

Ms. Meenakshi Arora, Sr. Adv., S. K. Sinha, Ms. Seema Kashyap, Shubham Kashyap, Vivek Jain, Bhrigu Sharma, Puneet Parihar, Ms. Honey Kumbhat, Abhinav Jain, Rajat Jain, Vishal Meghwal, Milind Kumar, Jagdish Chand Solanki, Ms. Yashika Bum, Advs. for the Respondents. JUDGMENT / ORDER OF THE SUPREME COURT JUDGMENT ARAVIND KUMAR, J.

Leave granted.

The present appeals by way of special leave arises from the order dated 06.04.2023 passed by the learned Single Judge of the High Court of Judicature at Rajasthan, Jaipur Bench in S.B. Criminal Miscellaneous 2nd Bail Application No.219 of 2023 whereby the applications fi led by the fi rst Respondent in the respective appeals under Section 439 of the Code of Criminal Procedure, 1873 (for short ‘the Cr.P.C.’) has been allowed and have been granted bail on furnishing a personal bond for a sum of Rs.1,00,000/- (Rupees one lakh only) with two sureties of Rs.50,000/- each for their presence in connection with the FIR No.94 of 2022 registered on the complaint of the appellant by Police Station Mandawar, District Dausa, Rajasthan for the off ences punishable under Section 376D, 384, 506 of the Indian Penal Code (for short ‘the IPC’), Section 3 to 6 of POCSO Act and Section 3(2)(v) of The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short SC/ST Act) and Section 66 of the Information Technology Act, 2000. Brief Background:

The appellant (original complainant) is the uncle of minor girl got registered an FIR No.94 of 2022 on 25.03.2022 with the jurisdictional police alleging gang rape, threat of making video of rape recorded viral and extortion which came to be registered for the off ences punishable under Section 376D, 384 and 506 of the IPC read with Section 3 to 6 of POCSO Act and Section 66D of IT Act. The said FIR was registered against Vivek, Deepak and Netram. BHAGWAN SINGH v. DILIP KUMAR @ DEEPU @ DEPAK AND ANOTHER [ARAVIND KUMAR, J.] 473

It is the case of the prosecution that minor girl “XXX” aged 15 years and six months was studying in Class-X had got acquainted with a boy named Vivek and he seduced the minor girl and took her to Samleti Palace Hotel, Mandawar Road, Mahwa on February 24, 2021 and he along with his friends Deepak and Netram gang raped her after drugging and took videos of the incident. It was alleged that all of them had threatened her not to disclose the said incident as otherwise they would eliminate her father and brother make the video viral. It was further alleged in the complaint that accused persons proclaimed and they would not be harmed as they were powerful and as such the minor girl got scared and under the threat of video being circulated, she gave gold ornaments of her mother to said Vivek as instructed by him. It was also alleged that again Vivek had raped her under the threat of video being made viral and was extracting money from her. It was alleged that she was raped 4-5 times in the same hotel and she became weak and sick. Though enquires were made by her father and mother she had not revealed anything out of fear. It was also alleged that on 2nd May, 2021 the marriage of his elder brother’s daughter took place and entire family was busy and at that point of time they forced the minor girl to permit Vivek and his companions to enter the house by putting pressure on her and the jewellery kept for the marriage was taken away by Vivek and his accomplice. It was alleged in this regard an FIR No.142 of 2021 was registered by the mother of minor girl with the Police Station, Raini. It was alleged that during the course of investigation the accused Vivek was interrogated and he confessed to have taken away the jewellery and thereafter they had continued to threaten the minor girl not to disclose about the rape as otherwise they would destroy her entire family. It is stated that on 24th March, 2023, the minor girl had disclosed about the incident of 24.02.2021 after much persuation and as such complainant sought for strict action being taken against the accused persons.

After investigation the charge-sheet came to be fi led against Netram and Vivek only. However, the jurisdictional court took cognizance against Deepak @ Dileep Kumar @ Dipu by order dated 09.06.2022 for the off ence punishable under Section 376(2)(n), 376DA of the IPC and Section 5/6 of POCSO Act and thereafter the case has been registered and accused has been summoned. It is also pertinent to note at this juncture that order taking cognizance by the jurisdictional court against Deepak was challenged before 474 SUPREME COURT REPORTS [2023] 11 S.C.R. the High Court which came to be dismissed and same was challenged before this Court and later withdraw the petition.

The applications for grant of bail fi led by the respondents in the respective appeals came to be dismissed by the special court vide order dated 27.06.2022 and 11.01.2023 by the High Court. In the background of the bail application having been rejected the fi rst respondent in the respective appeals have preferred Criminal Miscellaneous Bail Applications under Section 439 of the Cr.P.C. before the High Court of Judicature of Rajasthan. By impugned order dated 06.04.2023 the High Court granted the relief in their favour and enlarged them on bail after taking into consideration the statement of the prosecutrix (victim) recorded during the course of trial and by taking into consideration the possibility of time being consumed for trial. The complainant being aggrieved by the grant of bail has preferred these appeals by special leave. Contentions of the Appellant (for the Complainant)

It is contended that off ences alleged against the accused are heinous off ences punishable with minimum sentence for life and attracts minimum sentence of 20 years. He would contend that victim in her statement recorded under Section 161 of the Cr.P.C. as well Section 164 of the Cr.P.C. has categorically stated that all the accused persons have committed gang rape and same has been reiterated in her deposition which has remained unshattered and therefore, prima facie, case for conviction has been made out. It is contended that one of the accused (Deepak) is son of a sitting MLA and the chances of tampering with the evidence during the trial if enlarged on bail is writ large; it is evident from the investigation that entries in the hotel register of the date of incident are missing; the CCTV footage of the hotel on the date of incident has been deleted; school records of the victim has been manipulated; telephone number of Deepak obtained by the police is a wrong number; name of Deepak had surprisingly disappeared from the charge-sheet though victim girl had specifi cally stated in all her statements before the investigating offi cer the role of Deepak and though his name appeared in FIR.

He would also contend that there has been threat posed to the father of the minor girl, who is an ordinary police constable to withdraw the complaint and other witnesses are also being threatened and none of these aspects has been considered by the High Court and as such it has resulted BHAGWAN SINGH v. DILIP KUMAR @ DEEPU @ DEPAK AND ANOTHER [ARAVIND KUMAR, J.] 475 in an erroneous order being passed for granting bail. Hence, he seeks for cancellation of the bail which has been granted by the High Court. Contentions of the Respondent Counsel:

Ms. Meenakshi Arora, learned Senior Counsel appearing for the respondent would support the impugned order passed by the High Court and would contend that fact of the complaint having been lodged after a lapse of one year after the date of alleged incident was a glaring defect in the prosecution theory; she would also contend that during the course of investigation it was found from school records where victim was studying was present at the school on the date of incident and prima facie complaint looks frivolous; in the data record of telephone related to the accused Dileep @ Deepak obtained during investigation revealed he was found to be 40 to 80 KM away from the place of incident on the date of incident and prima facie it reveals he has been falsely implicated; the fi rst respondent (Deepak) had no connection with or relationship with the prosecutrix and no call was ever made by him to the prosecutrix or vice versa. It is also contended that accused Vivek was known to the prosecutrix as is evident from various calls made by Vivek to her and during the course of the trial in her deposition she admitted that she was getting calls from Vivek and Netram but there was no connection whatsoever between the prosecutrix and respondent No.1 - Deepak. She would also contend that between the date of incident i.e. 24.02.2021 and the date of registration of FIR No.94 of 2022 on 25.03.2022 there was yet another FIR No.142 of 2021 registered by the mother of the victim regarding theft of jewellery against Vivek and there was no whisper of rape against respondent (Deepak) or others and the investigating offi cer is said to have recovered the jewellery from the accused Vivek. This chain of events would indicate that fi rst respondent – Deepak had no remote connection to the alleged incident of rape and he has been roped in to settle political scores. It is in these circumstances the investigating offi cer had found no material which can be imputed to point the guilt of the fi rst respondent (Deepak) and as such he had fi led a closure report while fi ling the charge-sheet against other two accused. She would also contend that fi rst respondent (Deepak) is innocent of the alleged off ence and, hence, she has prayed for rejection of the appeals.

Learned counsel appearing for Netram Special Leave Petition (Crl.) No.6200 of 2023 has contended that there has been delay of 13 months 476 SUPREME COURT REPORTS [2023] 11 S.C.R. in lodging the FIR; he would also contend that during the course of trial prosecution has made certain admissions which would depict there being a hole in prosecution theory, hence, he has sought for dismissal of the appeal.

Learned counsel appearing for the State, by reiterating the contentions urged in the counter affi davits fi led in the respective appeals, has prayed for the bail granted in favour of Netram being set aside or in other words, the appeal being allowed and has sailed along with the complainant. Whereas in the counter affi davit that has been fi led opposing the bail in Special Leave Petition (Crl.) No.6199 of 2023 against the order granting bail in favour of respondent – Deepak, the State has virtually supported the defence of the accused Deepak and the material collected during the course of investigation, to stave off the claim of the complainant. Hence, he has prayed for dismissal of the appeals. DISCUSSION AND FINDINGS:

The grant of bail is a discretionary relief which necessarily means that such discretion would have to be exercised in a judicious manner and not as a matter of course. The grant of bail is dependant upon contextual facts of the matter being dealt with by the Court and may vary from case to case. There cannot be any exhaustive parameters set out for considering the application for grant of bail. However, it can be noted that; (a) While granting bail the court has to keep in mind factors such as the nature of accusations, severity of the punishment, if the accusations entails a conviction and the nature of evidence in support of the accusations; (b) reasonable apprehensions of the witnesses being tempered with or the apprehension of there being a threat for the complainant should also weight with the Court in the matter of grant of bail. (c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought to be always a prima facie satisfaction of the Court in support of the charge.