SUPREME COURT IMPOSES ADDITIONAL CONDITIONS FOR BAIL OF ACCUSED

In the matter of XXX Vs The Union Territory of Andaman and Nicobar and Anr, Special Leave Petition (Crl.) No.3482 Of 2023, Special Leave Petition (Crl.)No.5192 Of 2023, Special Leave Petition (Crl.)No.5131 Of 2023 And Special Leave Petition (Crl.)No.5099 Of 2023, a Division Bench of the Supreme Court comprising of Justice Vikram Nath and Justice Ashanuddin Amanullah, passed a judgement dated 24/08/2023, while dismissing the above-cited Special Leave Petitions challenging the Orders of the Calcutta High Court, Circuit Bench at Port Blair which had granted Bail to the Respondents- Accused of various offences of the Indian Penal Code,1860 (IPC) under Sections 376 D (Gang Rape) / 228 A (Revealing the identity of Victim of Sexual Abuse) / 506 (Punishment for Criminal Intimidation) read with Section 120 B (Punishment for Criminal Conspiracy).

Facts

(1) This case was about a 21-year-old woman (referred to as ‘XXX’ / ‘Victim- Petitioner’), who made gang rape allegations against Mr Jitendra Narain (Ex-Chief Secretary), Andaman, Rishiwar Lal Rishi (Labour Commissioner) and Businessman, Sandeep Singh alias Rinku. She had further alleged that she was lured by the Labour Commissioner, who was close to the Chief Secretary, and was promised a government job. Allegedly, she was called to his office (Chief Secretary’s Office) and was raped by top Officials including the Accused- Narain. Based on her Complaint before Ld. Magistrate Court, Andaman (Trial Court), an FIR dated 01/10/2022 was lodged against the Respondents-Accused. The Accused- Narain sought for Anticipatory Bail, which was rejected by the Trial Court, following which he was arrested on 10/11/2022.

(2) Thereafter, the Circuit Bench of the Calcutta High Court granted Bail to the Respondents- Accused as follows:-

(3) The Accused- Jitendra Narain was granted Bail vide Order dated 20/02/2023 in CRM(DB)-1-2023.

(4) The Accused- Rishiwar Lal Rishi was granted Bail vide Order dated 22/02/2023 in CRM(DB)-6-2023.

(5) The Accused- Sandeep Singh alias Rinku was granted Bail vide Order dated 22/02/2023 in CRM(DB)-7-2023.

(6) The Division Bench of the Calcutta High Court Circuit Bench at Port Blair made the observation, that the submission relating to the evidence collected during the investigation (Evidence) does not need any reckoning while dealing with the question of Bail as it could affect the merits of the case and, “it has potency to prejudice the Accused and in some manner to the prosecution also.”

(7) The High Court stated that as the Accused is an IAS officer, he has to abide by the stringent conditions put under the Bail Order which he cannot bypass.

(8) The Division Bench while putting five conditions in the Bail Order observed that the Respondents-Accused is in no position to abscond, or influence the witnesses due to the nature of his service.

(9) The High Court inserted the following conditions in addition to the terms and conditions that would be imposed by the Chief Judicial Magistrate:

(i) That the Respondent shall not visit Andaman and Nicobar Islands except for attending the trial and after receiving a proper receipt of notice from the Trial Court.

(ii) That he shall not communicate or contact any person or official of the Island by any means of communication.

(iii) That he shall not threaten, induce, or coerce any witnesses of the ongoing case.

(iv) That he shall not leave India, except after obtaining permission or on official work visits.

(v) That the Respondent shall hand over his passport to the Trial Court during the pendency of the case.

(10) Aggrieved by the aforesaid High Court Orders granting Bail to the Accused, the Victim-Petitioner filed Special Leave Petition (Crl.) No.3482 Of 2023, Special Leave Petition (Crl.)No.5192 Of 2023, Special Leave Petition (Crl.)No.5131 Of 2023 And Special Leave Petition (Crl.)No.5099 Of 2023 before the Hon’ble Supreme Court.

SUPREME COURT OBSERVATIONS

The Apex Court passed an Order dated 24/08/2023 and made the following observations:

(a) That the High Court failed to indicate any reasons for grant of Bail in its Orders dated 20/02/2023 and 22/02/2023. Rather the High Court examined issues which ought not to have been the primary factors to be considered while deciding a bail application and the evidence so far collected need not be made the basis of granting or rejecting the bail application. Hence, the Supreme Court reiterated the law regarding the parameters of bail, as laid down by the Apex Court in Jagjeet Singh Ashish Mishra[1] and Prasanta Kumar Sarkar vs. Ashis Chatterjee[2] in para 9 thereof:

“9. … However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously, and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for Bail are:

(I) whether there is any prima facie or reasonable ground to believe that the Accused had committed the offence;

(II) nature and gravity of the accusation;

(III) severity of the punishment in the event of conviction;

(IV) danger of the Accused absconding or fleeing, if released on Bail;

(V) character, behaviour, means, position and standing of the Accused;

(VI) likelihood of the offence being repeated;

(VII) reasonable apprehension of the witnesses being influenced; and

(VIII) danger, of course, of justice being thwarted by grant of Bail.”

(b) That the Supreme Court imposed the following conditions in the Bail Order, to preserve the sanctity and the interest of justice:

(A) That the Trial Court shall expeditiously proceed with the case and without any undue adjournments;

(B) That the alleged Accused-Respondent shall fully cooperate with the trial;

(C) That the Accused- Respondent shall not leave the territory of India

(D) That the Accused- Respondent shall hand over his passport along with any other passport being Diplomatic/ Personal in nature with the Trial Court.

(E) That the violation of any terms and conditions stipulated supra and by the High Court would be ground for the cancellation of Bail.

(c) That the Apex Court directed the Union Territory Administration, and the Police to provide complete protection to the Petitioner and her family to ensure their safety.

CONCLUSION

Thus, based on the above-mentioned observations, the Supreme Court dismissed the Special Leave Petitions filed by the Victim-Petitioner and modified the conditions in the Bail Orders for compliance of the Respondents-Accused.

 

Shaurya Mani Pandey

Associate,

The Indian Lawyer

 

[1] (2022) 9 SCC 321

[2] (2010) 14 SCC 496