11.1. We propose to take a quick look at the considerations that ought to govern grant of anticipatory bail. There are a line of decisions of this court that have underscored the fact that while deciding an application for bail, the court ought to refrain from undertaking a detailed analysis of the evidence, the focus being on the prima facie issues including consideration of some reasonable grounds that would go to show if the accused has committed the offence or those facts that would reflect on the seriousness of the offence. The self imposed restraint on delving deep into the analysis of the evidence at that stage is for valid reasons, namely, to prevent any prejudice to the case set up by the prosecution or the defence likely to be taken by the accused and to keep all aspects of the matter open till the trial is concluded.
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18. The aforesaid view has been reiterated in Supreme Bhiwandi Wada Manor Infrastructure Private Limited v. State of Maharashtra And Another [(2021) 8 SCC 753].
19. In Pradeep Ram v. State of Jharkhand And Another [(2019) 17 SCC 326] called upon to deal with a situation where an accused had been bailed out in a criminal case in which new offences were added subsequently and a question arose as to whether it would be necessary to cancel the bail granted earlier for taking the accused in custody, a Division Bench of this Court took pains to examine the view taken by several High Courts including the High Courts of Rajasthan, Madras, Allahabad and Jammu and Kashmir as also the observations made by this Court in previous decisions on this aspect and held thus :-
“31. In view of the foregoing discussions, we arrive at the following conclusions in respect of a circumstance where after grant of bail to an accused, further cognizable and non-bailable offences are added:
31.1. The accused can surrender and apply for bail for newly added cognizable and non-bailable offences. In event of refusal of bail, the accused can certainly be arrested.
31.2. The investigating agency can seek order from the court under Section 437(5) or 439(2) CrPC for arrest of the accused and his custody.
31.3 [Ed. : Para 31.3 corrected vide Official Letter dated 31-7-2020.]. The court, in exercise of power under Section 437(5) or 439(2) CrPC, can direct for taking into custody the accused who has already been granted bail after cancellation of his bail. The court in exercise of power under Section 437(5) as well as Section 439(2) can direct the person who has already been granted bail to be arrested and commit him to custody on addition of graver and non-bailable offences which may not be necessary always with order of cancelling of earlier bail.
31.4. In a case where an accused has already been granted bail, the investigating authority on addition of an offence or offences may not proceed to arrest the accused, but for arresting the accused on such addition of offence or offences it needs to obtain an order to arrest the accused from the court which had granted the bail.”
20. As can be discerned from the observations made in Pradeep Ram (supra), addition of a serious offence can be a circumstance where a Court can direct that the accused be arrested and committed to custody even though an order of bail was earlier granted in his favour in respect of the offences with which he was charged when his application for bail was considered and a favourable order was passed. The recourse available to an accused in a situation where after grant of bail, further cognizable and non-bailable offences are added to the FIR, is for him to surrender and apply afresh for bail in respect of the newly added offences. The investigating agency is also entitled to move the Court for seeking the custody of the accused by invoking the provisions of 437(5) and 439(2) Cr.P.C., falling under Chapter XXXIIII of the Statute that deals with provisions relating to bails and bonds. On such an application being moved, the Court that may have released the accused on bail or the Appellate Court/superior Court in exercise of special powers conferred on it, can direct a person who has been released on bail earlier, to be arrested and taken into custody.
21. Coming back to the facts of the instant case, it is not in dispute that when the respondent No. 2/accused moved an application for bail35 before the learned ACMM on 6th August, 2022, the offences mentioned in the FIR were under Sections 354, 354-B and 506 IPC. Bail was granted to him on the same day primarily on the ground of non-compliance of Section 41-A CrPC. Subsequently, the offence under Section 376 IPC was added to the same FIR and the crime was escalated to offences under Sections 376, 354, 354-B and 506(2) of IPC. On this turn of events, the State moved an application seeking cancellation of bail36 granted to the respondent No. 2/accused stating inter alia that initially, he was charged under Sections 354, 354-B and 506 IPC, but, during the course of recording the statement of the appellant/prosecutrix, the allegations leveled made out an offence under Section 376 which had to be added to the subject FIR and therefore, the bail granted in his favour needed to be cancelled and he was required to be taken into custody. The said application was allowed by the learned ACMM vide order dated 23rd August, 2022. This made the respondent No.2/accused approach the Court of the learned Additional Sessions Judge, Borivalli seeking anticipatory bail. By a well-reasoned order, the said application was rejected and the plea taken by him that he was a victim of honeytrap, was disbelieved. The contention of the respondent No. 2/accused that the appellant/prosecutrix had been improving her version in the supplementary statements37 was also considered and rejected and it was observed that even if the said statements were to be overlooked, there was sufficient prima facie material in the FIR to have made out an offence under Section 376, IPC.
24. Our view is in line with the observations made by a three-Judges Bench of this Court in Jagjeet Singh And Others v. Ashish Mishra Alias Monu And Another39 wherein speaking for the Bench, Justice Suryakant made the following pertinent observations relating to the victim’s right to be heard and alluding to the recommendations made by the Law Commission of India in its 154th Report that highlighted “the right of the victim or his/her legal representative to be impleaded as a party in every criminal proceedings where the charges are punishable with 7 years’ imprisonment or more”, observed thus :-
“19. It was further recommended that the victim be armed with a right to be represented by an advocate of his/her choice, and if he/she is not in a position to afford the same, to provide an advocate at the State’s expense. The victim’s right to participate in criminal trial and his/her right to know the status of investigation, and take necessary steps, or to be heard at every crucial stage of the criminal proceedings, including at the time of grant or cancellation of bail, were also duly recognised by the Committee. Repeated judicial intervention, coupled with the recommendations made from time to time as briefly noticed above, prompted Parliament to bring into force the Code of Criminal Procedure (Amendment) Act, 2008, which not only inserted the definition of a “victim” under Section 2(wa) but also statutorily recognised various rights of such victims at different stages of trial.
20. It is pertinent to mention that the legislature has thoughtfully given a wide and expansive meaning to the expression “victim” which “means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression “victim” includes his or her guardian or legal heir”.
PARTY: MS. X vs. THE STATE OF MAHARASHTRA AND ANOTHER – March 17, 2023
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