SADHNA CHAUDHARYversusTHE STATE OF RAJASTHAN & ANR.

                        [2022] 13 S.C.R. 239                            239


                     SADHNA CHAUDHARY                                   A
                                 v.
             THE STATE OF RAJASTHAN & ANR.
                 (Criminal Appeal No. 936 of 2022)
                           JULY 12, 2022                                B
         [AJAY RASTOGI AND VIKRAM NATH, JJ.]
       Code of Criminal Procedure, 1973: s. 438 – Anticipatory Bail
– Cancellation of – Accused-Station House officer on the fateful
day, exploited the victim – Exploitation continued for two years on
                                                                        C
account of threats of making public, the videos and photographs
of her in obscene and objectionable conditions which he had on
his mobile, if she did not continue to accede to his demands and
commands – Thereafter, registration of FIR against SHO for the
offences punishable u/ss. 376, 323, 341, 354 and 379 IPC by the
victim – Application for anticipatory bail by the SHO – Allowed by      D
the High Court – On appeal, Held: Considering the seriousness of
the offences alleged, not a fit case for grant of anticipatory bail –
Recoveries are yet to be made and the accused has not extended
full cooperation in the investigation – Accused is not a common
man, his adherence to law has to be more stringent than expected in
                                                                        E
general by a common man, which apparently, he failed to observe –
High Court accepted the case as set up by the accused to be true
and on that basis proceeded to grant anticipatory bail thus,
committed an error – Order passed by the High Court set aside.
      Shri Gurbaksh Singh Sibbia and Others v. State of
                                                                        F
      Punjab (1980) 2 SCC 565 : [1980] 3 SCR 383;
      Siddharam Satlingappa Mhetre v. State of Maharashtra
      and Others (2011) 1 SCC 69 : [2010] 15 SCR 201;
      Sushila Aggarwal and Others v. State (NCT of Delhi)
      and Another (2020) 5 SCC 1 : [2020] 2 SCR 1; State of
      U.P. v Deoman Upadhyaya AIR 1960 SC 1125 –                        G
      referred to.
                       Case Law Reference
[1980] 3 SCR 383                 followed              Para 14.1
[2010] 15 SCR 201               referred to            Para 14.2        H
                                239
240            SUPREME COURT REPORTS                         [2022] 13 S.C.R.


A     [2020] 2 SCR 1                     referred to            Para 14.3
      AIR 1960 SC 1125                   referred to            Para 14.3
            CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
      936 of 2022.
B           From the Judgment and Order dated 25.08.2021 of the High Court
      of Judicature for Rajasthan, Bench at Jaipur in SB Criminal Misc. Bail
      Application No. 6394 of 2021.
            Ms. Shobha Gupta, Rajendra Kr. Panigrahi, Nishant Bahuguna,
      Vidit Agarwal, Subham Jalan, Ms. Prachi Sharma, Ms. Sakshi Tiwari,
C     Advs. for the Appellant.
           Ketan Paul, Amartya Bhushan, Tushar Bhushan, Dr. Nirmal
      Chopra, Manav, Advs. for the Respondents.
            The Judgment of the Court was delivered by
            VIKRAM NATH, J.
D
            Leave granted.
             2. The appellant is the complainant/victim/ prosecutrix. She has
      filed this appeal assailing the correctness of the judgment and order
      dated 25.08.2021 passed by the Rajasthan High Court, Bench at Jaipur
E     in S.B. Criminal Misc. Bail Application No.6394 of 2021 (Kanwar Pal
      Singh Vs. State of Rajasthan), whereby the High Court allowed the
      application for the relief of anticipatory bail under Section 438 CrPC in
      FIR No.161 of 2020, Police Station-Karni Vihar, Jaipur, under Sections
      323, 341, 354, 379 and 376 IPC.

F            3. As the present case relates to an order granting anticipatory
      bail, we are consciously referring to the facts and the arguments in brief
      so that none of the parties are prejudiced or the Trial Court would be
      influenced by any of the observations, which may be made by us in this
      order.

G            4. The prosecution story in brief is that, sometimes in 2018, when
      the respondent no.2 was posted as a Station House Officer, Mahila Thana,
      Jhunjhunu, the sister of the appellant had made a complaint against her
      in-laws at the same police station. The respondent no.2 had kept with
      himself, the Bank Pass-book, Marriage Registration Certificate, Marriage
      Photographs, Aadhar Card and Birth Certificate relating to her sister
H
  SADHNA CHAUDHARY v. THE STATE OF RAJASTHAN &                                  241
             ANR. [VIKRAM NATH, J.]

and had told her to collect the same later. On 25.09.2018, when the             A
appellant was called to collect the papers from the respondent no.2, and
upon her reaching Jhunjhunu, she was informed that papers may be
collected from his official residence, where she had to compulsorily go
as she had to return to Jaipur on the same day. At the residence, the
respondent no.2 offered buttermilk to the appellant, which she claims to
                                                                                B
have innocently consumed, but apparently the same was laced with drugs
resulting into the appellant losing her consciousness. When she regained
consciousness, she found herself in a very awkward situation and
immediately realized that she had been exploited by the respondent no.2.
The respondent no.2 is said to have threatened her that he has made
videos and clicked photographs in obscene and objectionable conditions          C
on his mobile and if she did not continue to accede to his demands and
commands, he would make everything public.
       5. The exploitation of the appellant is said to have continued for
almost two years. In May, 2020, respondent no.2 came to her residence,
where she resides with her husband and children. He forcefully took her         D
in his Jeep to some unknown place, physically assaulted her, snatched
away her mobile, then after driving to various places at some point his
wife and children arrived and they also assaulted her, as a result of
which, she became unconscious. She was saved by the patrolling vehicle
of the Police department, whereafter she lodged the FIR No.161 of
2020 on 01.06.2020 for the offences punishable under Sections 376,              E
323, 341, 354 and 379 IPC at the Karni Vihar Police Station, Jaipur. The
FIR was only about that day’s incident, however, later on, when the
appellant recovered, she narrated the whole story in her statement under
Section 164 CrPC.
       6. Further, the case of the appellant is that respondent no.2 misusing   F
his official position got a false report registered through his wife against
the appellant five days later on 05.06.2020, which was registered as FIR
No.0234 of 2020, Police Station-Jhotwara, Jaipur. It is also submitted
that the said FIR after investigation has been found to be containing
completely false and incorrect facts and a closure report has already           G
been submitted. However, insofar as the FIR lodged by the appellant is
concerned, as the respondent no.2 has not been taken into custody, he is
not co-operating with the investigation and several articles and mobiles
need to be recovered from him for a fair and proper investigation. It is
also necessary to have control over the obscene videos and photographs
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242            SUPREME COURT REPORTS                          [2022] 13 S.C.R.


A     of the appellant, as such his judicial custody is required considering the
      seriousness of the allegations.
             7. The order of anticipatory bail, which has been passed in a
      cursory manner literally treating the averments contained in the petition
      before the High Court to be correct needs to be set aside. It is also the
B     case of the appellant that respondent no.2 has further misused his official
      position in order to lodge several false complaints not only against the
      appellant but her family members also only in order to pressurize her to
      withdraw the present FIR.
            8. The State-respondent has filed a detailed counter-affidavit.
C     Relevant paragraph nos.5 to 10 are relevant which read as follows:
            “5. It is most respectfully submitted that the investigation in
            the FIR 161/2020 has unearthed substantial evidence which
            proves that Accused/Respondent No. 2, who is himself a police
            officer, is guilty of offences under Sections 323, 341, 354,
D           504, 379, 376 of IPC, as detailed in the Factual Report dated
            23.11.2021.
            6. Further, on 05.06.2020, another FIR No. 234/2020 was
            registered at the instance of one Smt Usha Kanwar, i.e, wife
            of Respondents No. 2, at the Police Station Jhotwara, Jaipur
E           West, under Sections 143,323,341, 384, 504, 379, 452, of
            the IPC. After detailed investigation, it was found that the
            said FIR was registered on the basis of false information and
            no offence was made out against the Petitioner and any
            members of her family. As such, Final Report under Section
            173 CrPC already been filed on 27.09.2021 before the court
F           of learned a CJM Class- 3 Jaipur City, wherein next date of
            hearing is fixed as 25.01.2022.
            A true translate copy of the Factual Report dated 25.11.2021
            detailing the findings of the investigation and its status is
            annexed herewith and marked as Annexure-R2 (Page No. 45
G           to 99).
            7. In addition to the facts stated in the two Factual Reports
            above, it is most respectfully submitted that the Accused/
            Respondent No. 2 is a police officer who is well versed with
            the process of law and an insider to law enforcement
H
  SADHNA CHAUDHARY v. THE STATE OF RAJASTHAN &                                  243
             ANR. [VIKRAM NATH, J.]

      machinery in the State of Rajasthan, therefore, it is even more           A
      important that the investigation proceed without the Accused/
      Respondent No. 2 being under the protection of the Hon’ble
      Court.
      8. Further, the fact unearthed in the investigation till now
      detailed in the above two Factual Reports corroborate and                 B
      prove the allegations made by the Petitioner. In addition, the
      FR in FIR 234/2020 details how a false case was sought to
      be created against the Petitioner and her family.
      9. It is most respectfully submitted that on the strength of facts
      laid out above, the answering Respondent seeks cancellation               C
      of the anticipatory bail granted on Accused/Respondent No.
      2. In particular, it is imperative that all efforts be made to
      find the obscene photographs, videos, mobile phone and
      clothes bag of the victim in addition to other pieces of evidence
      that the Accused/Respondent No.2 alone will have knowledge
      of. It may be noted that the Accused/Respondent No. 2 has                 D
      not fully cooperated with the investigation as noted in the
      Factual Report dated 23.11.2021.
      10. In light of the above submissions, it is most respectfully
      prayed before this Hon’ble Court that impugned order
      granting anticipatory bail Respondent No. 2 be set aside and              E
      the Respondent-State be at liberty to proceed with the
      investigation as it sees fit, without the accused being under
      any protection from this Hon’ble Court.”
       9. In the aforesaid counter affidavit, the Additional Deputy
Commissioner of Police, Jaipur (West), Jaipur duly authorized by the            F
State of Rajasthan, who filed the affidavit, has stated in paragraph 5 that
substantial evidence has been unearthed which proves that the respondent
no.2, who is a police officer, is guilty of the offences, details whereof are
mentioned in the report dated 23.11.2021.
        10. In paragraph 6, it has been stated that respondent no.2 managed     G
to get a false report lodged against the appellant registered as FIR No.234
of 2020, which after detailed investigation was found to be based on
false information and no offence was made out against the appellant or
her family members. The final report under Section 173(2) CrPC has
already been submitted on 27.09.2021.
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244                SUPREME COURT REPORTS                        [2022] 13 S.C.R.


A             11. In paragraph 7, it is stated that the police officer, who is well-
      versed in the process of law and a part of the law enforcement machinery,
      it is all the more important that the investigation must proceed without
      the respondent no.2 being under the protection of this Court.
               12. In paragraph 9, it is stated that order for granting anticipatory
B     bail needs to be cancelled in particular for the reason that efforts are still
      on to recover the obscene photographs, videos, mobile-phone and the
      bag of clothes of the victim in addition to other pieces of evidence from
      the respondent no.2, who alone would be having knowledge of the same.
      It is also specifically stated in paragraph 9 that he has not fully cooperated
      with the investigation as is apparent from the factual report dated
C     23.11.2021.
             13. On the other hand, respondent no.2 has sought to justify the
      order passed by the High Court. According to the learned counsel, the
      appellant is exploiting the respondent no.2 and his family members, the
      reasons given by the High Court while passing the order of anticipatory
D     bail is based on legally admissible facts and the circumstances placed
      before the High Court. He also submitted that once the High Court has
      exercised its discretion, this Court may not interfere with the same. It is
      also submitted that other FIR’s registered against the appellant and her
      relatives is by third persons/strangers who are victims of extortion by
E     the appellant and her relatives. They have nothing to do with the
      respondent no.2.
            14. Law on the applicability or grant of anticipatory bail under
      section 438 Cr.P.C. may be briefly summarised as under: -
               14.1. In Shri Gurbaksh Singh Sibbia and Others v. State of
F                    Punjab1, a Constitution Bench of this Court, Chief Justice
                     Y.V. Chandrachud, speaking for the Court dealt with in
                     detail on the considerations for grant of anticipatory bail.
               14.2. In Siddharam Satlingappa Mhetre vs. State of
                     Maharashtra and Others2; this Court relying upon the
G                    Constitution Bench judgment in Shri Gurbaksh Singh
                     Sibbia laid down in paragraph 112 of the report the
                     following factors and parameters to be considered while
                     dealing with an application for anticipatory bail:
      1
          (1980) 2 SCC 565
H     2
          (2011) 1 SCC 694
     SADHNA CHAUDHARY v. THE STATE OF RAJASTHAN &                                245
                ANR. [VIKRAM NATH, J.]

         “(i) The nature and gravity of the accusation and the exact role of     A
         the accused must be properly comprehended before arrest is made;
         (ii) The antecedents of the applicant including the fact as to
         whether the accused has previously undergone imprisonment on
         conviction by a court in respect of any cognizable offence;
         (iii) The possibility of the applicant to flee from justice;            B

         (iv) The possibility of the accused’s likelihood to repeat similar or
         other offences;
         (v) Where the accusations have been made only with the object
         of injuring or humiliating the applicant by arresting him or her;       C
         (vi) Impact of grant of anticipatory bail particularly in cases of
         large magnitude affecting a very large number of people;
         (vii) The courts must evaluate the entire available material against
         the accused very carefully. The court must also clearly
         comprehend the exact role of the accused in the case. The cases         D
         in which the accused is implicated with the help of Sections 34
         and 149 of the Penal Code, 1860 the court should consider with
         even greater care and caution because over-implication in the
         cases is a matter of common knowledge and concern;
         (viii) While considering the prayer for grant of anticipatory bail, a   E
         balance has to be struck between two factors, namely, no prejudice
         should be caused to the free, fair and full investigation and there
         should be prevention of harassment, humiliation and unjustified
         detention of the accused;
         (ix) The court to consider reasonable apprehension of tampering         F
         of the witnesses or apprehension of threat to the complainant;
         (x) Frivolity in 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 to the genuineness of the prosecution, in the normal course    G
         of events, the accused is entitled to an order of bail.”
         14.3. In yet another recent Constitution Bench judgment in the
               case of Sushila Aggarwal and Others vs. State (NCT
               of Delhi) and Another3, in paragraph 85 of the report
3
    (2020) 5 SCC 1                                                               H
246                SUPREME COURT REPORTS                          [2022] 13 S.C.R.


A                      Justice Ravindra Bhatt laid down the guiding principles
                       in dealing with applications under Section 438.
                         Justice M.R. Shah had authored a separate opinion.
                       Justice Arun Misra, Justice Indira Banerjee and
                       Justice Vineet Saran agreed with both the opinions. The
B                      concluding guiding factors stated in paragraphs 92, 92.1 to
                       92.9 are reproduced hereunder:
               “92. This Court, in the light of the above discussion in the two
               judgments, and in the light of the answers to the reference, hereby
               clarifies that the following need to be kept in mind by courts, dealing
C              with applications under Section 438 CrPC.
               92.1. Consistent with the judgment in Shri Gurbaksh Singh
               Sibbia and others v. State of Punjab4, when a person complains
               of apprehension of arrest and approaches for order, the application
               should be based on concrete facts (and not vague or general
D              allegations) relatable to one or other specific offence. The
               application seeking anticipatory bail should contain bare essential
               facts relating to the offence, and why the applicant reasonably
               apprehends arrest, as well as his side of the story. These are
               essential for the court which should consider his application, to
               evaluate the threat or apprehension, its gravity or seriousness and
E              the appropriateness of any condition that may have to be imposed.
               It is not essential that an application should be moved only after
               an FIR is filed; it can be moved earlier, so long as the facts are
               clear and there is reasonable basis for apprehending arrest.
               92.2. It may be advisable for the court, which is approached with
F              an application under Section 438, depending on the seriousness of
               the threat (of arrest) to issue notice to the public prosecutor and
               obtain facts, even while granting limited interim anticipatory bail.
               92.3. Nothing in Section 438 Cr. PC, compels or obliges courts to
               impose conditions limiting relief in terms of time, or upon filing of
G              FIR, or recording of statement of any witness, by the police, during
               investigation or inquiry, etc. While considering an application (for
               grant of anticipatory bail) the court has to consider the nature of
               the offence, the role of the person, the likelihood of his influencing
               the course of investigation, or tampering with evidence (including
      4
H         (1980) 2 SCC 565
SADHNA CHAUDHARY v. THE STATE OF RAJASTHAN &                                247
           ANR. [VIKRAM NATH, J.]

  intimidating witnesses), likelihood of fleeing justice (such as leaving   A
  the country), etc. The courts would be justified – and ought to
  impose conditions spelt out in Section 437 (3), Cr.P.C. [by virtue
  of Section 438 (2)]. The need to impose other restrictive conditions,
  would have to be judged on a case-by-case basis, and depending
  upon the materials produced by the state or the investigating
                                                                            B
  agency. Such special or other restrictive conditions may be
  imposed if the case or cases warrant, but should not be imposed
  in a routine manner, in all cases. Likewise, conditions which limit
  the grant of anticipatory bail may be granted, if they are required
  in the facts of any case or cases; however, such limiting conditions
  may not be invariably imposed.                                            C
  92.4. Courts ought to be generally guided by considerations such
  as the nature and gravity of the offences, the role attributed to the
  applicant, and the facts of the case, while considering whether to
  grant anticipatory bail, or refuse it. Whether to grant or not is a
  matter of discretion; equally whether and if so, what kind of special     D
  conditions are to be imposed (or not imposed) are dependent on
  facts of the case, and subject to the discretion of the court.
  92.5. Anticipatory bail granted can, depending on the conduct and
  behaviour of the accused, continue after filing of the charge-sheet
  till end of trial.                                                        E
  92.6. An order of anticipatory bail should not be “blanket” in the
  sense that it should not enable the accused to commit further
  offences and claim relief of indefinite protection from arrest. It
  should be confined to the offence or incident, for which
  apprehension of arrest is sought, in relation to a specific incident.     F
  It cannot operate in respect of a future incident that involves
  commission of an offence.
  92.7. An order of anticipatory bail does not in any manner limit or
  restrict the rights or duties of the police or investigating agency, to
  investigate into the charges against the person who seeks and is          G
  granted pre-arrest bail.
  92.8. The observations in Sibbia regarding “limited custody” or
  “deemed custody” to facilitate the requirements of the investigative
  authority, would be sufficient for the purpose of fulfilling the
  provisions of Section 27, in the event of recovery of an article, or
                                                                            H
248               SUPREME COURT REPORTS                          [2022] 13 S.C.R.


A              discovery of a fact, which is relatable to a statement made during
               such event (i.e deemed custody). In such event, there is no question
               (or necessity) of asking the accused to separately surrender and
               seek regular bail. Sibbia (supra) had observed that
                        “if and when the occasion arises, it may be possible for
B                 the prosecution to claim the benefit of Section 27 of the
                  Evidence Act in regard to a discovery of facts made in
                  pursuance of information supplied by a person released on bail
                  by invoking the principle stated by this Court in State of U.P. v
                  Deoman Upadhyaya5.”
C              92.9. It is open to the police or the investigating agency to move
               the court concerned, which grants anticipatory bail, for a direction
               under Section 439 (2) to arrest the accused, in the event of violation
               of any term, such as absconding, non- cooperating during
               investigation, evasion, intimidation or inducement to witnesses with
               a view to influence outcome of the investigation or trial, etc.”
D
             15. Having considered the submissions, the material on record, in
      particular the stand taken by the State-respondent no.1 in their counter
      affidavit, and the law on the grant or refusal of anticipatory bail, we are
      of the view that considering the seriousness of the offences alleged, this
      was not a fit case for grant of anticipatory bail, when according to the
E     State, recoveries are yet to be made and the respondent no.2 has not
      extended full cooperation in the investigation.
            16. The Respondent no.2 is not a common man, being a law-
      abiding person. His adherence to law has to be more stringent than
      expected in general by a common man, which apparently, he failed to
F     observe.
             17. We also feel that High Court has proceeded to accept the
      case as set up by the respondent no.2 in his petition to be true and on
      that basis proceeded to grant anticipatory bail. The High Court in our
      opinion committed an error.
G
            18. Accordingly, the appeal deserves to be allowed. The impugned
      judgment and order of the High Court dated 25.08.2021 is set aside and
      the application under Section 438 CrPC filed by the respondent no.2 is
      dismissed.
      5
H         AIR 1960 SC 1125
  SADHNA CHAUDHARY v. THE STATE OF RAJASTHAN &                                   249
             ANR. [VIKRAM NATH, J.]

       19. We grant two weeks’ time to the respondent no.2 to surrender,         A
failing which, the Investigating Agency would be at liberty to arrest him
forthwith and proceed with the investigation in a fair and reasonable
manner as per law.
      20. The observations made hereinabove are only for disposal of
the appeal. If regular bail application is filed, it may be considered on its    B
own merits in accordance with law without being influenced by any of
the observations made above.
       21. The appeal stands allowed as above.

Niidhi Jain                                                    Appeal allowed.
                                                                                 C
(Assisted by : Shashwat Jain, LCRA)




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