SADHNA CHAUDHARY VERSUS THE STATE OF RAJASTHAN & ANR.

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No. 936 of 2022

(Arising out of S.L.P.(Crl.) No.8477 of 2021)

SADHNA CHAUDHARY APPELLANT(S)

VERSUS

THE STATE OF RAJASTHAN

& ANR. RESPONDENT(S)

J U D G M E N T

Vikram Nath, J.

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 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

StationKarni Vihar, Jaipur, under Sections 323, 341,

354, 379 and 376 IPC.

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.

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 inlaws at the same police station. The

respondent no.2 had kept with himself, the Bank

Passbook, Marriage Registration Certificate, Marriage

Photographs, Aadhar Card and Birth Certificate

relating to her sister and had told her to collect the

same later. On 25.09.2018, when the 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 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 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 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, 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 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 StationJhotwara, 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 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 cooperating 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 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

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 Staterespondent has filed a detailed

counteraffidavit. 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, 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 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 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 AnnexureR2 (Page No. 45 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 machinery in the State of

Rajasthan, therefore, it is even more 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 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 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

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 the

RespondentState 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 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.

11. In paragraph 7, it is stated that the police

officer, who is wellversed 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, mobilephone 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.

1 (1980) 2 SCC 565

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:

“(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

2 (2011) 1 SCC 694

because overimplication 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 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

3 (2020) 5 SCC 1

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

4 (1980) 2 SCC 565

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

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

casebycase 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 chargesheet 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 prearrest 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 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 Staterespondent 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

5 AIR 1960 SC 1125

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 lawabiding 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.

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.

…………..........................J.

[AJAY RASTOGI]

………….........................J.

[VIKRAM NATH]

NEW DELHI

JULY 12, 2022.

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