Paragraph numbers below are the court’s original numbering, recovered from the source text.
9. In the aforesaid counter affidavit, the Additional Deputy Commissioner of Police, Jaipur (West), Jaipur duly authorized by the 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 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. SADHNA CHAUDHARY v. THE STATE OF RAJASTHAN & ANR. [VIKRAM NATH, J.]
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 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 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 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 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 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 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 2 (2011) 1 SCC 694 “(i) The nature and gravity of the accusation and the exact role of 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; (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; (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 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 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 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 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 SADHNA CHAUDHARY v. THE STATE OF RAJASTHAN & ANR. [VIKRAM NATH, J.] 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 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 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 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 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 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 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 (1980) 2 SCC 565 intimidating witnesses), likelihood of fleeing justice (such as leaving 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 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. 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 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. 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. 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 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 SADHNA CHAUDHARY v. THE STATE OF RAJASTHAN & ANR. [VIKRAM NATH, J.] 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 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.” 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.”
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 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 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.
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 AIR 1960 SC 1125
19. We grant two weeks’ time to the respondent no.2 to surrender, 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 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. (Assisted by : Shashwat Jain, LCRA) SADHNA CHAUDHARY v. THE STATE OF RAJASTHAN & ANR. [VIKRAM NATH, J.]