BHAGWAN SINGHversusDILIP KUMAR @ DEEPU @ DEPAK AND ANOTHER

                [2023] 11 S.C.R. 469 : 2023 INSC 761



                             CASE DETAILS
                           BHAGWAN SINGH
                                      v.
       DILIP KUMAR @ DEEPU @ DEPAK AND ANOTHER
                   (Criminal Appeal No. 2560 of 2023)
                            AUGUST 23, 2023
       [S. RAVINDRA BHAT AND ARAVIND KUMAR, JJ.]

                              HEADNOTES

      Issue for consideration: Whether the Single Judge of the High Court
was justified in granting bail to the respondent-accused in connection with the
FIR registered against them by the appellant-uncle of the minor girl alleging
gang rape, threat of making video of rape recorded viral and extortion for
the offences punishable u/ss. 376D, 384, 506 IPC, s. 3 to 6 of POCSO Act,
s. 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 and s. 66 of the Information Technology Act, 2000.
       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 offences 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 – Justification:
      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 filing 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 sufficient 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 Offences 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                           471
                  AND ANOTHER`

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 –
Effect 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 justified 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.
      1. Leave granted.
      2. 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 filed by the
first 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 offences 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:
      3. 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 offences 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                           473
        AND ANOTHER [ARAVIND KUMAR, J.]

      4. 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 24 th
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.
     5. After investigation the charge-sheet came to be filed against Netram
and Vivek only. However, the jurisdictional court took cognizance against
Deepak @ Dileep Kumar @ Dipu by order dated 09.06.2022 for the offence
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.
      6. The applications for grant of bail filed 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 first 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)
       7. It is contended that offences alleged against the accused are heinous
offences 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 specifically stated in all her statements
before the investigating officer the role of Deepak and though his name
appeared in FIR.
     8. 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                           475
        AND ANOTHER [ARAVIND KUMAR, J.]

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:
      9. 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 first 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 officer is said to have recovered the jewellery from the
accused Vivek. This chain of events would indicate that first 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 officer had found no material which can be imputed to point
the guilt of the first respondent (Deepak) and as such he had filed a closure
report while filing the charge-sheet against other two accused. She would
also contend that first respondent (Deepak) is innocent of the alleged offence
and, hence, she has prayed for rejection of the appeals.
    10. 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.
      11. Learned counsel appearing for the State, by reiterating the
contentions urged in the counter affidavits filed 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 affidavit that has been filed 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:
      12. 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.
      (d) 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 and in the event of there being some doubt as
   BHAGWAN SINGH v. DILIP KUMAR @ DEEPU @ DEPAK                          477
        AND ANOTHER [ARAVIND KUMAR, J.]

     to the genuineness of the prosecution, in the normal course of events,
     the accused is entitled to have an order of bail.
      We may also profitably refer to a decision of this Court in Kalyan
Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and another (2004) 7
SCC 528 where the parameters to be taken into consideration for grant of
bail by the Courts has been explained in the following words:
     “11. The law in regard to grant or refusal of bail is very well settled.
     The court granting bail should exercise its discretion in a judicious
     manner and not as a matter of course. Though at the stage of granting
     bail a detailed examination of evidence and elaborate documentation
     of the merit of the case need not be undertaken, there is a need to
     indicate in such orders reasons for prima facie concluding why bail
     was being granted particularly where the accused is charged of having
     committed a serious offence. Any order devoid of such reasons would
     suffer from non-application of mind. It is also necessary for the court
     granting bail to consider among other circumstances, the following
     factors also before granting bail; they are:
     (a) The nature of accusation and the severity of punishment in case of
     conviction and the nature of supporting evidence.
     (b) Reasonable apprehension of tampering with the witness or
     apprehension of threat to the complainant.
     (c) Prima facie satisfaction of the court in support of the charge. (See
     Ram Govind Upadhyay v. Sudarshan Singh [(2002) 3 SCC 598 : 2002
     SCC (Cri) 688] and Puran v. Rambilas [(2001) 6 SCC 338 : 2001 SCC
     (Cri) 1124] .)”
      13. It is also required to be borne in mind that when a prayer is made
for the cancellation of grant of bail cogent and overwhelming circumstances
must be present and bail once granted cannot be cancelled in a mechanical
manner without considering whether any supervening circumstances have
rendered it in conducing to allow fair trial. This proposition draws support
from the Judgment of this Court in Daulat Ram and others v. State of
Haryana reported in (1995) 1 SCC 349, Kashmira Singh v. Duman Singh
(1996) 4 SCC 693 and xxx v. State of Telangana (2018) 16 SCC 511.
478           SUPREME COURT REPORTS                         [2023] 11 S.C.R.


       14. This Court in Daulat Ram’s case has held that the cancellation of the
bail has to be dealt on a different footing in comparison to a proceeding for
grant of bail. It has also been held that there can be supervening circumstances
which may develop post the grant of bail and are non-conducive to the fair
trial, making it necessary to cancel the bail and this principle has been
reiterated time and again and more recently in the Judgment of Ms. X v.
State of Telangana (supra).
      15. This Court in Vipin Kumar Dhir v. State of Punjab 2021 SCC
Online SC 854 has added caveat to the above principles and has further
held that bail can also be revoked where the Court has considered irrelevant
factors or has ignored relevant material available on record which renders the
order granting bail legally untenable. The gravity of the offence, conduct of
the accused and societal impact of an undue indulgence by Court when the
investigation is at the threshold, are also amongst a few situations, where a
Superior Court can interfere in an order of bail to prevent the miscarriage
of justice and to bolster the administration of criminal justice system.
      16. No doubt 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.
     17. The offence alleged in the instant case is heinous and would be
a onslaught on the dignity of the womanhood and the age old principle of
;= uk;ZLrq iwT;Urs jeUrs r= nsork% (where women are respected Gods live
there) would recede to the background and the guilty not being punished by
process of law or accused persons are allowed to move around freely in the
society or in spite of there being prima facie material being present they are
allowed to move around freely in the society before guilt is proved and are
likely to indulge in either threatening the prosecution witnesses or inducing
them in any manner to jettison the criminal justice system, then the superior
court will have to necessarily step in to undo the damage occasioned due to
erroneous orders being passed by courts below.
    18. This Court in Ram Govind Upadhyay v. Sudarshan Singh, (2002)
3 SCC 598 has held as under:
   BHAGWAN SINGH v. DILIP KUMAR @ DEEPU @ DEPAK                           479
        AND ANOTHER [ARAVIND KUMAR, J.]

     “9. Undoubtedly, considerations applicable to the grant of bail and
     considerations for cancellation of such an order of bail are independent
     and do not overlap each other, but in the event of non-consideration
     of considerations relevant for the purpose of grant of bail and in the
     event an earlier order of rejection available on the records, it is a duty
     incumbent on the High Court to explicitly state the reasons as to why
     the sudden departure in the order of grant as against the rejection just
     about a month ago. The subsequent FIR is on record and incorporated
     therein are the charges under Sections 323 and 504 IPC in which the
     charge-sheet have already been issued — the court ought to take note
     of the facts on record rather than ignoring them. In any event, the
     discretion to be used shall always have to be strictly in accordance
     with law and not dehors the same. The High Court thought it fit not to
     record any reason, far less any cogent reason, as to why there should
     be a departure when in fact such a petition was dismissed earlier not
     very long ago. The consideration of the period of one year spent in jail
     cannot in our view be a relevant consideration in the matter of grant of
     bail, more so by reason of the fact that the offence charged is that of
     murder under Section 302 IPC having the punishment of death or life
     imprisonment — it is a heinous crime against the society and as such
     the court ought to be rather circumspect and cautious in its approach in
     a matter which stands out to be a social crime of a very serious nature.”
     19. Similar is the opinion of this Court in Prashanta Kumar Sarkar
v. Ashish Chatterjee and another (2010) 14 SCC 496 has held as under:
     “9. We are of the opinion that the impugned order is clearly
     unsustainable. It is trite that this Court does not, normally, interfere
     with an order passed by the High Court granting or rejecting bail to
     the accused. 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;
480           SUPREME COURT REPORTS                         [2023] 11 S.C.R.


      (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.”
      20. Keeping the aforesaid analysis of law when we turn our attention to
the facts on hand it would not detain us too long to arrive at a conclusion that
High Court seems to have been primarily swayed by the fact that there has
been delay in filing the complaint i.e. 13 months for granting bail in favour
of accused persons viz, respondents in respective appeals. The allegation
made in the complaint relates to gang rape of a minor girl who is aged 15
years six months, studying in Class X. The fact of her father being a police
constable who is far below in the hierarchy of service cannot be lost sight
of. One of the respondents against whom allegations have been made is
the son of a sitting Member of Legislative Assembly – MLA. Yet another
accused – Vivek seems to have criminal antecedents and the third accused
is the Manager of the Hotel where the alleged incident of gang rape had
occurred. On investigation, the charge-sheet came to be filed against two
accused only, namely, Vivek and Netram, though in the complaint a specific
allegation of rape has been made against Deepak he was dropped. It is in
this background, at the instance of the complainant, the jurisdictional court
took cognizance of the offence against Deepak vide order dated 09.06.2022
and this order was challenged before the High Court in Criminal Revision
No.979 of 2022 which came to be dismissed vide order dated 13.07.2022
and the special leave petition filed challenging the same in Special Leave
Petition (Criminal) No.9458 of 2022 came to be withdrawn on 03.02.2022.
Thus, order of taking cognizance by the jurisdictional Sessions Court against
Deepak has attained finality.
      21. In this background, the contention or plea of delay being fatal to
the prosecution when examined, it would, prima facie, indicate that in the
complaint/FIR which has been registered on 25.03.2022 relevant to the
incident dated 24.02.2021 the reason has been assigned namely constant
   BHAGWAN SINGH v. DILIP KUMAR @ DEEPU @ DEPAK                           481
        AND ANOTHER [ARAVIND KUMAR, J.]

threat posed by the accused persons as stated in the complaint itself. It
is in this background it will have to be seen as to whether in the societal
circumstances the minor girl was placed, her tender age, then prevailing
circumstances and the purported video depicting her nudity and the constant
threat being posed to victim of video of rape which had been recorded being
made viral in the event of prosecutrix informing anyone of the incident are
factors which cannot be brushed aside which resulted in delay in filing the
complaint. In other words, delay by itself would not be fatal for all times
to come and the criminality attached to the incident would not evaporate
into thin air 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. On the other hand, 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 justified in contending that delay was fatal
to stave off the proceedings initiated against such accused. Thus, it depends
on facts that would unfold in a given case. In the aforesaid background
the fact of delay in the instant case prima facie cannot be held against the
prosecution or in other words on the ground of delay in lodging FIR the
genuineness of the complaint cannot be viewed with coloured glasses nor it
can be held that by itself would be sufficient ground to enlarge the accused
on bail.
      22. The accused in the instant case, namely, Deepak was apprehended
by the jurisdictional Sessions Court by executing the arrest warrant on
09.01.2023. He did not initially surrender after being charge-sheeted or
participate in the investigation even after arrest warrant being issued by
the trial court.
      23. The fact that accused Deepak is the son of sitting MLA would
disclose the domineering influence he would wield not only in delaying
the proceedings but also in pressurizing the witnesses to either resile from
their statement given during the course of investigation or pose threat to
them from deposing against accused on their failure to act according to his
dictates or induce them to testify as per his dictates or to help the defence
of the accused.
     24. The prosecutrix has made allegations against the concerned
accused-respondents and it becomes amply clear from the plain reading
482          SUPREME COURT REPORTS                         [2023] 11 S.C.R.


of the complaint as well as the testimony of the prosecutrix that accused
persons had indeed participated in the gang rape. She also states that she
was threatened that if she were to inform any family member of the alleged
rape incident, they would make the video of rape to go viral. During the
course of investigation of the FIR registered for gang rape, it was found that
entries maintained at Hotel Samleti Palace, relevant to the date of incident
was specifically missing; the CCTV cameras at the Hotel though found, the
CCTV footage of the date of incident was not available; Vivek had called
the prosecutrix several times and had exchanged number of messages;
Vivek and Netram were in regular touch on phone and after the incident,
accused Deepak was dropped from the charge-sheet only on the ground that
call details of his mobile provided to the investigating authorities did not
disclose about his presence at the scene of the incident on that particular
date and as such the charge-sheet was filed only against Vivek and Netram.
The prosecutrix had also named Deepak having participated in the incident
of gang rape in her statement recorded under Section 161 and 164 of the
Cr.P.C. and had also named him in the FIR. It is only on the strength of the
application filed by complaint under Section 190-193 of Cr.P.C., the trial
court took cognizance against Deepak for the offences punishable under
Section 376D and section 5 of POCSO Act and said order has reached
finality, as already noticed hereinabove.
      25. The complainant’s grievance, through-out has been that Deepak
had been threatening the prosecutrix and other witnesses and that there
is every possibility of threat to their life in the event they depose to the
truth, and such apprehension is justifiable, especially because accused
is in a domineering position. The complainant underlines the influence
and possibility of the clout being wielded on the witnesses which cannot
be discounted. The fact that even after recording of the deposition of the
prosecutrix other prosecution witnesses have not come forward to tender
evidence though more than nine dates of hearing has passed, would lend
credence to the apprehension of the complainant. The High Court seems to
have erred in not considering these basic facts while considering the prayer
for grant of bail by taking into consideration the well-established judicial
pronouncements already noticed hereinabove. That the court framed charges,
prima facie discloses the possibility and reasonable suspicion of the accused
prima facie culpability.
   BHAGWAN SINGH v. DILIP KUMAR @ DEEPU @ DEPAK                             483
        AND ANOTHER [ARAVIND KUMAR, J.]

      26. The Courts have placed the liberty of an individual at a high pedestal
and extended the protection to such rights whenever and wherever required.
In the same breadth, it requires to be noticed that emphasis has also been laid
on furnishing reasons for granting while balancing it with the requirement
of a fair trialbail even though such reasoning may be brief.
      27. In the aforesaid circumstances, we notice that the impugned order
granting bail is not only bereft of material particulars which would justify
grant of bail, but it seems that the High Court has got swayed on the ground
of delay and the video having not been recovered during the course of
investigation and has given a complete go by to the allegation made in the
FIR and statement recorded under Section 161 and 164 of the Cr.P.C. as also
the testimony of the prosecutrix before the jurisdictional court.
      28. Hence, we are of the considered view, that order of the High Court
requires to be set aside and accordingly it is set aside. We hereby direct
that the accused/respondents shall surrender before the jurisdictional court
within two weeks from today failing which they shall be taken into custody
We make it clear that they will be at liberty to seek bail after the evidence/
depositions of the remaining witnesses are recorded and in the event of such
an application being filed, the High Court shall consider the same on its
own merits and without being influenced by any of the observations made
hereinabove. We also make it clear that the jurisdictional court shall not be
influenced by any of the observations made hereinabove and are limited to
present proceedings. The appeals are accordingly allowed.


Headnotes prepared by:                                           Appeals allowed.
Nidhi Jain