In CRIMINAL APPEAL NO. 740 OF 2022-SC- Apex Court cancels bail granted to rape accused who was welcomed with ‘Bhaiyaa is back’ posters, says power wielded by accused and its deleterious impact on complainant highlighted Justice N.V.Ramana, Krishna Murari & Hima Kohli [05-05-2022]

Read Judgment: MS. P v. THE STATE OF MADHYA PRADESH AND ANOTHER 

Tulip Kanth

New Delhi, May 06, 2022: Cancelling the bail of a rape accused, the Supreme Court has held that High Courts or Sessions Courts have a wide discretion in deciding an application for bail under Section 439 Cr.P.C. However, the said discretion must be exercised after due application of the judicial mind and not in a routine manner.

The Larger Bench of Justice N.V.Ramana, Justice Krishna Murari and Justice Hima Kohli was considering an appeal by way of special leave arising from an order dated November 16, 2021, passed by the Single Judge of the Madhya Pradesh High Court whereby an application filed by the second respondent-accused under Section 439 of the Code of Criminal Procedure, 1973 had been allowed and he had been granted bail on furnishing a personal bond for a sum of Rs.1,00,000 with a solvent surety in the like amount to the satisfaction of the trial court and certain other conditions imposed therein by the Single Judge in connection with the case registered on the complaint of the appellant under Sections 376(2)(n) and 506 of the Indian Penal Code, 1860.

The allegations levelled against the accused were that the accused had induced the appellant/complainant to establish a physical relationship with him on the false pretext of marrying her.The appellant/ complainant stated that the accused had been in physical intimacy with her since July, 2019, when on applying vermillion on her forehead, he had convinced her that they had got married as per Hindu rituals. Subsequently, in July, 2020 when the appellant informed the accused that she was pregnant, he along with his sister took her to a private hospital at Jabalpur and made her consume some pills to undergo abortion, without her knowledge. It was  alleged that thereafter, the accused started avoiding the appellant and stopped returning her calls. When confronted by the appellant, he categorically refused to solemnize their marriage. On the appellant’s complaint, the FIR was registered against the respondent but later, the accused was granted bail. Aggrieved by the relief granted to the accused, the appellant/complainant filed the present appeal by way of special leave seeking cancellation of the regular bail granted to him.

Observing that bail once granted, ought not to be cancelled, the Top Court referred to its judgment in Dolat Ram And Others v. State of Haryana wherein it was held that very cogent and overwhelming circumstances are necessary for cancellation of bail and bail once granted, should not be cancelled in a mechanical manner.

The Bench held that some of the circumstances where bail granted to the accused under Section 439 (1) of the Cr.P.C. can be cancelled are- If he misuses his liberty by indulging in similar/other criminal activity; interferes with the course of investigation; attempts to tamper with the evidence; attempts to influence/threaten the witnesses; evades or attempts to evade court proceedings; indulges in activities which would hamper smooth investigation; likely to flee from the country; attempts to make himself scarce by going underground and/or becoming unavailable to the investigating agency; attempts to place himself beyond the reach of his surety or if any facts may emerge after the grant of bail which are considered unconducive to a fair trial. It was clarified by the Apex Court that the aforesaid list is only illustrative in nature and not exhaustive.

The Bench noted that the criminal antecedents of the accused were brought to the notice of the High Court by the appellant/complainant and counsel for the State had also confirmed that he is involved in at least four criminal cases.

It was vehemently urged on behalf of the appellant/ complainant that the accused’s bail order deserved to be set aside also in the light of his blatant conduct subsequent to being released for which reference had been made to his photographs appearing in the social media with his snapshots prominently displayed on posters/hoarding in the forefront with the faces of some influential persons of the society in the backdrop, welcoming him with captions like Bhaiyaa is back, Back to Bhaiyaa, and Welcome to Role Janeman.

On such factual aspect the Bench held, “Even if it is assumed that the posters in question were not contemporaneous to the release of the respondent No.2 from detention, the captions tagged to his photographs on the social media highlight the superior position and power wielded by the respondent No.2 and his family in the society and its deleterious impact on the appellant/complainant.”

It was opined that the emojis of crowns and hearts tagged with the captions were devoid of any religious sentiments as sought to be portrayed by the accused. On the other hand, they amplified the celebratory mood of the accused and his supporters on his having been released from detention in less than two months of being taken into custody for a grave offence that entails sentence of not less than ten years that may even extend to life, remarked the Bench.

As per the Bench, the brazen conduct of the accused had evoked a bona fide fear in the mind of the appellant/complainant that she would not get a free and fair trial if he remains enlarged on bail and that there is a likelihood of his influencing the material witnesses. It was noted  that a representation had also been submitted by the appellant’s father to the Superintendent of Police, District Jabalpur expressing the very same apprehension.

Thus, the Bench was of the considered opinion that the accused did not deserve the concession of bail. Relevant material brought on record had been overlooked by the High Court while granting him bail and the supervening adverse circumstances also warranted cancellation of bail. Hence, the Top Court quashed the impugned order and directed the accused to surrender within one week.