Court Cannot Grant Bail Without Hearing Rape Victim's Plea, Says Supreme Court

On 17th March 2023, Supreme Court in SLA, where High Court allowed the bail application without hearing the prosecutrix (Rape Victim), titled (XXX Vs. THE STATE OF MAHARASHTRA AND ANOTHER) held as the prosecutrix (victim) was not afforded a hearing in the proceedings despite her application for intervention. Since the victim had initiated the criminal proceedings and had been denied a meaningful hearing, it amounted to failure to recognize her right to participate in the criminal proceedings.

A woman was allegedly assaulted by a man named Jignesh Mehta in a hotel in Mumbai. The police initially registered a case against him for offenses under Sections 354 and 354-B of the Indian Penal Code, which are non-bailable offenses. However, Mehta was granted bail, and the victim appealed to the Deputy Commissioner of Police, alleging a casual approach by the investigating team. The police later added Section 376 of the IPC, which is a non-bailable offense, to the FIR after the victim provided further details of the assault. The police requested the victim to undergo a medical examination, and she submitted a letter to the Additional Commissioner of Police, West Region, requesting that the investigation be carried out properly. Mehta's bail was later canceled after Section 376 of the IPC was added to the FIR. Mehta then filed for anticipatory bail, but it was rejected by the court.

The accused was granted interim protection by the High Court in response to an anticipatory bail application after being accused of outraging the modesty of a model by touching her inappropriately, attempting to commit forcible sexual intercourse, and engaging in penetrative sexual assault. The prosecutrix intervened but not heard , and after the accused cooperated with the investigation, the interim protection order was made absolute. Prosecutrix aggrieved by order approached the Supreme Court.

The learned counsel for the prosecutrix argued that the High Court did not consider the gravity of the allegations against the accused while granting him anticipatory bail. Also contended that the High Court failed to appreciate that the allegations in the FIR were sufficient to establish the commission of an offense under Section 376 of the Indian Penal Code. Additionally, Argued that the High Court did not consider the observations made by the learned Additional Sessions Judge while rejecting the anticipatory bail application of the accused. The counsel also raised the issue that the appellant/prosecutrix was not given a hearing despite filing an intervention application in the anticipatory bail application. Finally, the counsel argued that the accused, being a wealthy and influential businessman, used his influence to delay the registration of the FIR and may influence the witnesses to the detriment of the appellant/prosecutrix.

The counsel for the respondent No. 2/accused argues that the impugned orders should not be interfered with, as the accused had cooperated with the investigation and attended all hearings before the courts, and there is no eye witness to the alleged incident. The counsel for the State informs the Court that a charge-sheet has been filed in the case and 25 witnesses have been cited by the prosecution, out of which 12 are independent witnesses. The case is now listed for arguments on charge on 27th July, 2023.

Supreme Court found that the primary reason the High Court granted interim protection to the respondent No. 2/accused was due to the "star variations in the narration of the prosecutrix" as recorded in her supplementary statements. The court notes that while deciding an application for bail, the court should refrain from undertaking a detailed analysis of the evidence and focus on prima facie issues that reflect the seriousness of the offence. The court cites several decisions that have emphasized this point to prevent prejudice to the case and keep all aspects open till the trial is concluded.

Supreme Court observed that if further cognizable and non-bailable offences are added to an FIR after an accused has been granted bail for the original charges, the accused must surrender and apply afresh for bail in respect of the newly added charges. The investigating agency is also entitled to move the court to seek custody of the accused. The court that may have released the accused on bail earlier can direct the accused to be arrested and taken into custody. The court also noted that the focus of the court while deciding an application for bail should be on prima facie issues, and that a detailed analysis of the evidence should be avoided.

Supreme Court noted that the High Court had granted anticipatory bail to the accused despite the fact that the offence under Section 376 IPC was added to the FIR after the accused was initially granted bail for offences under Sections 354, 354-B, and 506 IPC. The Court criticized the High Court's decision, stating that it had disregarded the nature and gravity of the alleged offence, as well as the financial status and position of the accused vis-à-vis the victim. The Court also noted that even if there were discrepancies in the victim's statements, there was still sufficient material in the FIR to prima facie attract the provision of Section 376 IPC. The Court held that these factors should have dissuaded the High Court from granting anticipatory bail to the accused.

Supreme Court held as the prosecutrix (victim) was not afforded a hearing in the proceedings despite her application for intervention. The Court referred to the victim's right to be heard, which was recognized by the legislature and also highlighted by the Law Commission of India. Since the victim had initiated the criminal proceedings and had been denied a meaningful hearing, it amounted to failure to recognize her right to participate in the criminal proceedings.

Therefore, the Court quashed the orders granting anticipatory bail and directed the Registry to redact the name of the victim from the records. Appeal Allowed

XXX Vs. THE STATE OF MAHARASHTRA AND ANOTHER