BHADRESH BIPINBHAI SHETHversusSTATE OF GUJARAT &ANOTHER

                       [2015] 10 S.C.R. 398


A                BHADRESH BIPINBHAI SHETH
                                 v.
                STATE OF GUJARAT &ANOTHER
             (Criminal Appeal Nos. 1134-1135 of 2015)
B
                      SEPTEMBER 01, 2015
              [A.K. SIKRI AND R. F. NARIMAN, JJ.]
        Code of Criminal Procedure, 1973 - s.438 -Anticipatory
C bail - Grant of- Charge framed against appellant in the year
   2001 only uls. 506(2) /PC on the basis of the statement
  recorded-Addition of charge u/s.376 IPC nine years later-
   Order passed for committal ofproceedings to Sessions Court
   and taking the appellantinto custody - Application by the
0 appellant for anticipatory bail - Grant of, by the Sessions
  Judge, however, cancellation by the High Court-Justification
   of- Held: Merely because the charge u/s. 376 IPC, which is
   a serious charge, is now added, the benefit of anticipatory
   bail cannot be denied when such a charge is added later
E and inaction of the prosecutrix is also a contributory factor-
   Further, no purpose would be served in compelling the
   appellant to go behind bars, as an undertrial, by refusing the
   anticipatory bail in respect of alleged incident - Judgment
  passed by the High Court is set aside and that by the
F Sessions Judge, is restored - Penal Code, 1860 - ss. 376,
   506.

        Bail -Anticipatory bail - Grant or refusal of- Factors to
    be taken into consideration - Stated.
G
        Allowing the appeals, the Court

      HELD: 1.1 In the instant case, where allegations of
  rape pertain to the period which is almost 17 years ago
  and when no charge was framed under Section 376 IPC
H                            398
 BHADRESH BIPINBHAI SHETH v. STATE OF GUJARAT 399


in the year 2001, and even the prosecutrix did not take A
any steps for almost 9 years and the charge under
Section 376 IPC is added only in the year 2014, there is
no reason why the appellant should not be given the
benefit of anticipatory bail. Merely because the charge
under Section 376 IPC, which is a serious charge, is now B
added, the benefit of anticipatory bail cannot be denied
when such a charge is added after a long period of time
and inaction of the prosecutrix is also a contributory .
factor. [Para 17] [412-B-C]
                                                              c
     1.2 Having regard to the facts of the case, no purpose
would be served in compelling the appellant to go behind
bars, as an undertrial, by refusing the anticipatory bail
in respect of alleged incident which is 17 years old and
for which the charge is framed only in the year 2014. The     D
investigation is complete and there is no allegation that
the appellant may flee the course of justice. The FIR was
registered and the trial commenced in the year 2001;
albeit with the charge framed under Section 506(2) IPC,
and during all these periods, the appellant has               E
participated in the proceedings. There is no allegation
that during this period he had tried to influence the
witnesses. In the said circumstances, even when there
is a serious charge levelled against the appellant, that
by itself should not be the reason to deny anticipatory       F
bail when the matter is examined keeping in view other
factors enumerated. [Para 24] [421-G-H; 422-A-C]
     1.3 The impugned judgment is set aside and the
order of the Additional Sessions Judge granting               G
anticipatory bail to the appellant on the conditions
mentioned in the said order is restored. [Para ~7] [422-
G]
     Gurbaksh Singh Sibbia and Others v. State of Punjab
     (1980) 2 sec 565: 1980 (3) SCR 383 - followed.           H
400         SUPREME COURT REPORTS                  [2015] 10 S.C.R.


A       Siddharam Satlingappa Mhetre v. State of Maharashtra
        and Others (2011) 1 SCC 694: 2010 (15) SCR 201 -
        referred to.

                         Case Law Reference
 B
        1980 (3) SCR 383           followed.          Para 19

        2010 (15) SCR 201           referred to.      Para 22

      CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
 C Nos.1134-1135of2015

           From the Judgment and Order dated 18.07.2014 of the
      High Court of Judicature at Gujarat atAhmadabad in Criminal
      Misc. Application (for cancellation of bail) No. 9440 of 2013
 o    with Criminal Misc. Application No. 15929 of 2013.

      Dushyant Dave, Harin Raval, Anirudh Sharma, Samar
   Kachwaha, Nachiket Dave, Raghavendra M. Bajaj, Anando
   Mukherjee, Nipur Saxena, Praveen Kumar Hota for the
 E Appellant.
          Respondent-in-Person, Hemantika Wahi, Jesal Wahi, Puja
      Singh for the Respondents.

          The Judgment of the Court was delivered by
 F
          A.K. SIKRI, J.1. Leave granted.

        2. The appellant herein, in these appeals, challenges the
   validity of the judgment dated 18.07.2014 passed by High Court
 G of Judicature at Gujarat cancelling the anticipatory bail which
   was granted to the appellant by the Additional Sessions Judge,
   Court No.16 of Ahmedabad City Sessions Court.

       3. Before coming to the factual narrative of a long drawn
 H event that has taken place in respect of criminal trial pending
  BHADRESH BIPINBHAI ;:,i-IETH v. STATE OF GUJARAT 401
                 [A.K. SIKRI, J.]

against the appellant, we would like to state, in capsiculated A
manner, the circumstances under which the matter has landed
up in this Court.

      The appellant and respondent No.2 (hereinafter referred
to as the 'prosecutrix') were neighbours at the relevant time       B
 and known to each other. On 29.05.2001, the prosecutrix wrote
 a complaint to the Assistant Police Commissioner, Crime
 Branch, Gaekwad Haveli, Ahmadabad City alleging the
 harassment that was meted out to her by the appellant over a
 period of time. Allegations of rape, emotional blackmail and       C
threats were levelled against the appellant therein. After two
days i.e. on 31.05.2001, her statement was recorded by a
 Police officer of the concerned Police Station wherein she
again levelled the allegations of maltreatment, blackmail etc.
However, in this statement of hers, which was recorded by the       D
Investigating Officer (1.0.), allegations of rape were
conspiciously missing. On the basis of statement made on
31.05.2001, F.l.R. was registered and charge under Section
506(2) of Indian Penal Code (IPC) was framed in the year
2001. The appellant was admitted to bail in the said case.          E
Trial has proceeded which has not made much headway for
number of years. In the year 2010, the prosecutrix made an
application for addition of charge under Section 376 IPC as
well. The Metropolitan Magistrate held thatthe said application     F
should be taken into consideration only after chief examination
of the complainant. The prosecutrix challenged the said order
before the.Court of City Session Judge atAhmedabad. The
matter was remanded back to the Metropolitan Magistrate with
a direction that the application shall be heard afresh in its       G
entirety after giving opportunity to both parties. On 31.03.2012,
the Metropolitan Magistrate directed the Police to carry out
special investigation under Section 173(8) of the Code of
Criminal Procedure (hereinafter referred to as the 'Code').
Being not satisfied, the parties challenged the above order.        H
402         SUPREME COURT REPORTS                  [2015] 10 S.C.R.


A The matter travelled up to this Court wherein certain directions
  were issued. Ultimately, the Police filed a revised chargesheet
  stating that a prima facie case under Section 376 IPC was
  also made out. In view of addition of charge under Section
  376 IPC, the Magistrate passed the order on 25.04.2013 for
B committal of proceedings to the Sessions Court and taking
  the appellant into custody. However, execution of this order for
  taking the appellant into custody was stayed till 07.05.2013.
  During this period, the appellant moved the City Sessions Court
  No.16 atAhmedabad for grant of anticipatory bail which was
C ultimately granted on 18.05.2013. Against this order of grant
  of anticipatory bail, the prosecutrix filed criminal revision
  petition which has been allowed by the High Court vide
  impugned order aated 18.07.2014 cancelling the anticipatory
  bail granted to the appellant. As pointed out above, it is the
0
  justification and legality of this order which is in question before
  us in the instantappeals.

        4. The aforesaid brief resume depicts that the charge was
 E framed against the appellant initially in the year 2001 only under
   Section 506(2) of IPC. Insofar as charge under Section 376 of
   IPC is concerned, it is added only in the year 2014. Further,
   the original charge was framed under Section 506(2) IPC on
   the basis of the statement recorded on 31.05.2001 which was
 F treated as Fl R and which did not contain the allegation of rape.
   If one has to go by these facts, coupled with the fact that
   allegation of rape is of the year 1997-98, one may not find
   fault with the order of the Additional Session Judge granting
   anticipatory bail. However, the impugned order passed by the
 G High Court whereby the anticipatory bail order of the Additional
   Session Judge is cancelled, does not take the matter in such
   a simplistic manner and, therefore, a detailed discussion on
   the issue has become imperative.

 H         5. The High Court took note of the circumstances which
      led to the addition of charge under Section 376 IPC at a belated
 BHADRESH BIPINBHAI SHETH v. STATE OF GUJARAT 403
                [A.K. SIKRI, J.]

stage. Thus, it would be necessary to take stock of those A
detailed events and thereafter decide as to whether the order
of the High Court is sustainable or not. These facts are
recapitulated with elaboration which is absolutely necessary
for our purposes, as under:
                                                                   B
      6. As mentioned above, before registration of the FIR on
31.05.2001 on the basis of the statement, the prosecutrix had
filed a complaint on 29.05.2001 before the Assistant
Commissioner of Police, Crime Branch. In this complaint, she
stated that she is a housewife and had been residing at 1, C
Navpad Tenement, Opposite Nava Vikas Gruh, Behind Opera
for 1% years. She further mentioned that prior to shifting to this
place, she was residing with her in-laws at Sanand for 10 years.
She was married, with three children, and her husband was a
Jeweller. She alleged in the complaint that about 2%-3 years D
prior thereto, she had gone to C.N. Vidhyalaya where her
daugher Devel was studying. To return home, she was to catch
a Bus. When she was standing at the Bus Stand, the appellant,
who was her neighbour, passed through that place in his car
and on seeing the prosecutrix, he asked her to sit in the car as E
 he was also going home. Though, she initially refused but
thereafter she sat in the car being unaware of his malafide
 intentions. Thereafter, he took the car to some uninhabited
 place near Telav Village, beat her and forcefully raped her. He F
 also threatened her not to narrate the above incident to anybody.
 Being scared of these threats, she did not tell the incident to
 anybody. Taking benefit of the circumstances, after one month
 he repeated the act of rape by giving the threat that if the
 prosecutrix did not agree, he would tell her husband and others. G
 He took her to Hotel Ellis Town and raped her against her
wishes. After that, he threatened her of dire consequences
 saying that he had taken her photographs. This way he
 continued to keep relations with the prosecutrix. This complaint
 further states that she shifted to Ahmadabad but even after H
    404        SUPREME COURT REPORTS                  [2015) 10 S.C.R.


    A coming to Ahmedabad, he started sending letters with the
      threat to defame her.At that stage, she told her husband and
      in-laws. She went to Jyoti Sangh, a NGO and encouraged by
      their support, she lodged the complaint of continuous
      harassment on the part of the appellant.
     8
               7. On 31.05.2001, her statement was recorded in the
•         Police Station by the 10 in which the allegations of
          misbehaviour by the appellant are contained and the entire
          statement reads as under:
    c
               "The plaintiff Manishaben dictates that though the
               complaint is lodged against the defendant Bhadresh, he
               is not impoved till today. Our condition is becoming worst
               day by day. In these two days, Bhadresh is making
     D         horrible face reading while our access and is doing
               abusive and filthy behaviour. Yesterday, during the night
               hours at about 8.15 hours, mother of Bhadresh was
               speaking in a very loud tone in a way that I can hear the
               same as they are residing in front of us that we will pay
    ·E         maintenance and Bhadresh himself was speaking like
               this and telling me to live as his KEPT is also speaking
               like this. He is laughing in a satire manner in front of my
               house and he is also behaving with my husband in a
               abusive manner which could not be borne or disclosed.
     F         At this time, when we left from Sanand to come to
               Ahmedabad, workman of Bhadresh was chasing us and
               was behind us for about 3 to 4 km and I do not know if
               any other associates were of him or not going ahead,
               but his associates are remaining present surrounding
     G         me in a manner that he was keeping our watch chasing
               us even though I myself or my husband were not speaking
               anything. Now, I am worried about my daughter who is
               growing and becoming young because Bhadresh is also
               looking to her with bad intention. His intention appears
     H
               to be mal.
 BHADRESH BIPINBHAI SHETH v. STATE OF GUJARAT 405
                [A.K. SIKRI, J.]

     I have dictated the above statement in full sound state of A
     mind and without any undue pressure.

     Before me                        Sd/- Manish K Mehta

     Vandana Patva                    Date: 31.05.2001
                                                                 B
     31.05.2001"

     8. During preliminary inquiries, the Police recorded the
statements of counsellors of Jyoti Sangh who confirmed that
the prosecutrix had made the statement to them regarding         C
alleged rape by the appellant. Be that as it may, the FIR was
registered only under Section 506(2) of IPC on 31.05.2001
bearing C.R. No. II. 3009/2001 and on that basis, charge was
framed only under the aforesaid Section on 25.06.2001.
Further for one reason or the other, the prosecution case even   D
under the said charge did not make any substantial progress.

     9. On 07.12.2010, an application was moved by the
prosecutrix for amending the charge by including the offence
under Section 376 IPC as well on the basis of complaint dated E
29.05.2001 and treating the same as FIR. Initially, the
Metropolitan Magistrate did not agree with this request and
passed an order to the effect that till the examination-in-chief
of the prosecutrix was recorded, it was not justifiable to amend/
alter the charge. However, in the revision petition filed against F
that order, the Sessions Court remanded the case for fresh
consideration. After remand, the order dated 31. 03. 2012 was
passed by the Metropolitan Magistrate directing further
investigation under Section 173(8) of the Code implying
thereby that the necessity of framing of such charge would G
depend upon the investigation carried out by the Police.
Without stating the details, it suffices to mention that the matter
was taken by all the parties to the Sessions Court and then to
the High Court. Thereafter, the prosecutrix even came up to
this Court byway of SLP (Crl.) No.636/2013 against the order H
406       SUPREME COURT REPORTS                   [2015] 10 S.C.R.


A  dated 23.10.2012 passed by the High Court which had upheld
   the order of the Magistrate who had already ordered further
   investigation. Said SLP (Crl.) No.636/2013 was disposed of
   on 04.02.2013 taking note of the fact that though the
   Metropolitan Magistrate had ordered further inquiry by the
 B Police on 31.03.2012 with direction to submit the report within
   four weeks, no such report had been submitted till that date.
   On that basis, following order was passed: ·

            "We are informed that till. today the police has not
C         submitted the final report pursuant to the order passed
          by the Magistrate. If that is so, we are both surprised
          and pain at the inaction of the police and we direct the
          Investigating Officer of Criminal Case No. 51 of 2011,
          pending before the Metropolitan Magistrate, as directed
 D        by the Magistrate, and submit the final report within four
          weeks from the date of receipt/production of a copy of
          this order before him.

          In view of the above direction, the petitioner does not
E         wish to press this special leave petition any longer. It is
          dismissed as not pressed."

        10. Thereafter, the Police completed the investigation and
  submitted the report. The Police filed the chargesheet addin-g
F Section 376 of the IPC against the appellant and on that basis,
  an order was passed by the Additional Chief Metropolitan
  Magistrate on 25.04.2013 thereby committing the case to the
  Sessions Court and further directing that the appellant be taken
  into judicial custody, cancelling the bail bond. It is in these
G circumstances the appellant moved an application for grant of
  anticipatory bail to the said Sessions Court which was granted
  on 18.05.2013. As already noted above, the order granting
  bail to the appellant/accused has been cancelled by the High
  Court.
H
  BHADRESH BIPINBHAI SHETH v. STATE OF GUJARAT 407
                 [A.K. SIKRI, J.]

       11. Mr. Dushyant Dave and Mr. Harin Raval, learned       A
  senior counsel appearing for the appellant took us
  through the material on record on the basis of which it
  was sought to be argued that there was acquaintance
  between the appellant and the prosecutrix and the
  circumstances indicate that the physical relationship, if     B
  any, was consensual. It was also submitted that in her
  statement recorded before the 10 on 31.05.2001, there
  was no allegation of rape: even when the charge was
  framed under Section 506(2) IPC the prosecutrix did not
  object to the framing of the said charge simplicitor or       C
  insist upon addition of charge under Section 376 of IPC
  as well; after a gap of more than 9 years from the framing
  of charge, application was moved for this purpose; in
  the fresh chargesheet filed by the 10, the 10 clearly         D
  observed that no other circumstantial evidence could be
  collected regarding the rape as alleged by the
  complainant except her statement. It was also submitted
  that in the complaint made to Jyoti Sangh, NGO, at the
. end of the complaint which was given by the prosecutrix,      E
  there was a noting that no action be taken o~ the said
  complaint as the parties were trying to arrive at amicable
  settlement. The noting reads as under:
      "This case file be kept pending and whenever we want,
      only then, you do contest this case again and it is the   F
      wish of both of them, this case is kept pending.

      Before me                    Sd/- Manisha K. Mehta
      Vandana Patva                29.03.2001
                                                                G
      29.03.2001."

      It was also pointed out that between 2001 ~nd 2010, the
 prosecutrix did not appear to give her statement. However,
 the statement of one Vandana Patva, counsel in the said NGO
 was recorded. Mr. Dave referred to the cross-examination of H
408       SUPREME COURT REPORTS                  [2015] 10 S.C.R.


A the said witness wherein this witness had admitted that in the
  statement dated 31.05.2001 recorded by the Police, no fact
  regarding rape was stated. It was also not mentioned as to at
  which place and at what time, incident of rape had taken place.
  The learned senior counsel, thus, submitted that in these
B circumstances the learned Additional Session Judge rightly
  granted anticipatory bail. The reasons adopted by the High
  Court in cancelling the bail were commented upon by the learned
  counsel as not based on record, particularly, the observations
  of the High Court that the prosecutrix had to run a marathon for
C getting her complaint registered as a FIR and more particularly
  for addition of charge under Section 376 of IPC. They further
  submitted that the High Court wrongly recorded that the
  Sessions Court had failed to assign proper reasons for grant
  of anticipatory bail. It was pointed out that the move on the part
0
  of the appellant in filing criminal cases against the husband of
  the prosecutrix, in which the prosecutrix husband was acquitted,
  is treated by the High Court as tampering with the evidence by
  disturbing the witnesses and on that basis, it is observed by
E the High Court that the appellant was not entitled to the benefit
  of anticipatory bail. Submission in this behalf was that even if
  the. complaint or cases lodged by the appellant against the
  husband of the prosecutrix are presumed to be false, they had
  nothing to do with the instant case and, therefore, such acts on
F the part of the appellant could never be treated as tampering
  with the evidence.

      1"2. The prosecutrix appeared in person and argued her
  case. She extensively took us through the counter affidavit filed
G by her in opposition to the present proceedings on the basis
  of which she hammered the following aspects:

       (a) The prosecutrix was harrased by the appellant. .First
   act of sexual intercourse was against her wishes and was
 H clearly a rape. After committing this rape, the appellant
 BHADRESH BIPINBHAI SHETH v STATE OF GUJARAT 409
                [AK. SIKRI, J.]

threatened her and started blackmailing her. On that basis, he        A
took undue advantage of the hapless condition of the
prosecutrix in which she was placed and committed
subsequent acts of intercourse against her wishes which were
nothing but commission of offences under Section 376 of IPC.
                                                                      B
     (b) Various letters were written by the appellant ·not only to
the prosecutrix but to her other family members as well, which
showed his continued harassment to the prosecutrix and her
family members.
                                                                      c
     (c) The appellant was even having an evil eye on the
prosecutrix's daughter who was of growing age and wanted
to blackmail the prosecutrix in this behalf as well.

     (d) In order to harass the prosecutrix, the appellant even D
foisted false cases on the husband of the prosecutrix in order
to pressurize the prosecutrix to withdraw the case in question.

     (e) She also submitted that not only in the complaint made
to Jyoti Sangh on 19. 03.2001, she had levelled allegations of
rape, but such allegations were also made in her complaint to E
theACP on 29.05.2001. According to her, in fact, the statement
which was recorded on 31.05.2001 by the 10 was not correctly
recorded who intentionally omitted her statement concerning
her rape by the appellant, though specifically stated. It is F
because of this reason that she had to file the application in
the trial court for inclusion of charge under Section 376 IPC
with the prayer that complaint dated 29.05.2001 before the
ACP should be treated as the FIR and not the statement dated
31.05.2001 recorded by the 10.                                  G

     (f) She also submitted that she had to come up to this Court
to have the charge for offence under Section 376 of IPC framed
against the appellant.

    13. Ms. Hemantika Wahi, learned counsel appearing for H
410         SUPREME COURT REPORTS                  [2015] 10S.C.R.


A   the State, supported the plea of the prosecutrix. Her submission
    was that once the charge under Section 376 IPC has been
    added which was a serious charge and the offence being non-
    bailable, the proper course of action was to direct the appellant
  . to surrender before the trial court and apply for regular bail.
 B Her submission was that having regard to the seriousness
    of this charge, it was not a case of anticipatory bail.

       14. We have given our thoughtful and serious
  consideration to the aforesaid submissions on the charges,
C particularly, keeping in mind that there is a charge of rape
  against the appellant and the case projected by the
  prosecutrix is that as a helpless and weak soul, she has
  been immensely harrassed, physically abused and mentally
  tortured by the appeliant.
D
           15. In the first place, it is necessary to remind ourselves
      that in the present proceedings, this Court is concerned not
      about the feasibility of framing of the charge under Section
      376 IPC or merit thereof but to the grant of anticipatory bail
E     to the appellant. Therefore, the arguments of the p·rosecutrix
      that such a charge is rightly framed and the submissions on
      behalf of the appellant attempting to find the loopholes and
      the weakness in the prosecution case, would not be of much
      relevance to the issue involved. At this stage, it cannot be
 F    said as to whether there was any physical relationship
      between the appellant and the prosecutrix and, if so, whether
      it was consensual and, therefore, no charge of rape was
      made out. The fact remains that a charge of rape has been
      framed. It would ultimately be for the trial court to arrive at
G     the findings as to whether such a charge stands proved or
      not, on the basis of evidence that would be produced by the
      prosecution in support of this charge. With these preliminary
      remarks, we advert to the core issue, namely, whether in
 H    the circumstances of this case, appellant was entitled to
 BHADRESH BIPINBHAI SHETH v. STATE OF GUJARAT 411
                [AK. SIKRI, J.]

anticipatory bail or not and whether the High Court was justified   A
in cancelling the anticipatory bail.

     16. For this purpose, We would first highli£1ht the admitted
position which runs as follows:
                                                                     B
      The allegations of rape go back to the years 1997-
1998. No doubt, in the statement dated 19.03.2001 given
to NGO Jyoti ~angh by the prosecutrix, she had levelled
the allegations of rape. Equally, no doubt, she had
repeated these allegations in her complaint to ACP on               c
29.05.2001 as well. However, for some curious reasons,
the allegations of rape did not find mention in her
statement recorded by the 10 on 31.05.2001 on the basis
of which FIR was registered. This possibility cannot be
ruled out that the 10 did not record the statement correctly        o
and intentionally omitted to mention about the allegations
of rape. Whether this, in fact, happened would be tesied during
trial. However, the fact remains that when the FIR was
registered on the basis of statement recorded on 31.05.2001
and the chargesheet was filed making out a prima facie case E
only under Section 506(2) of IPC, the prosecutrix did not say
anything at that time. There was no protest even when charge
was framed by the concerned Magistrate only under Section
506(2) IPC. The objection in this regard was raised for the
first time in the year 2008 i.e. almost 7 years after the framing F
of the charge and application was filed in the year 2010 for
including the charge under Section 376 IPC as well on the
ground that her complaint to theACP given on 29.05.2001 be
treated as FIR. The prosecutrix may have valid reasons for
this delay. However, it is not for us to go into the same at this G
stage inasmuch as that is again a matter of trial and it would
be for the Sessions Court to ultimately adjudge as to whether
such delay was suitably explained and/or has any bearing on
the merits of the charge. It is reiterated at the cost of repetition H
412         SUPREME COURT REPORTS                    [2015] 10 S.C.R.


A     that we have to simply decide the question of feasibility of grant
      of anticipatory bail.

       17. In a matter like this where allegations of rape pertain
  to the period which is almost 17 years ago and when no charge
B was framed under Section 376 IPC in the year 2001, and even
  the prosecutrix did not take any steps for almost 9 years and
  the charge under Section 376 IPC is added only in the year
  2014, we see no reason why the appellant should not be given
  the benefit of anticipatory bail. Merely because the charge
C under Section 376 IPC, which is a serious charge, is now
  added, the benefit of anticipatory bail cannot be denied when
  such a charge is added after a long period of time and inaction
  of the prosecutrix is also a contributory factor.

 D      18. The High Court has remarked that the complainant
   had to run a marathon for getting her complaint registered as
   an FIR and more particularly for addition of charge under
   Section 376 IPC. In view of what we have mentioned above,
   these observations are not correct. Further, the High Court has
 E also wrongly mentioned that the Sessions Court has not
   assigned proper reasons for grant of anticipatory bail. In fact,
   the reasons which have persuaded us and recorded above,
   are precisely the reasons given by the Sessions Court itself
   while granting anticipatory bail to the appellant. The High Court
 F has also wrongly observed that it is the appellant who was
   able to drag the matter for a decade before the complaint was
   registered under proper Sections. The record of the case does
   not support this observation of the High Court. As far as the
   discussion in the impugned order commenting upon the
 G conduct of the appellant in filing false complaints and cases
   against the husband of the prosecutrix is concerned, we find
   that the High Court has made contradictory remarks on this
   aspect. At one place, such a move on the part of the appellant
 H is condemned as amounting to disturbing the witness and is
   treated as tampering with evidence. However, at another place,
 BHADRESH BIPINBHAI SHETH v. STATE OF GUJARAT 413
                [A.K. SIKRI, J.]

the High Court itself remarked that the complainant or the A
prosecutrix cannot get the anticipatory bail cancelled on this
basis and the ground of misusing the order of bail after its
grant is not made out. As per the High Court, the order of
grant of bail by the Session Court itself was jmproper and that
is the basis for cancelling the order passed by the Session B
Court.

     19. Before we proceed further, we would like to discuss the
law relating to grant of anticipatory bail as has been developed
through judicial interpretative process. A judgment which needs             C
to be pointed out is a Constitution Bench Judgment of this Court
in the case of Gurbaksh Singh Sibbia and Others v. State of
Punjab 1 • The Constitution Bench in this case emphasized that
provision of anticipatory bail enshrined in Section 438 of the Code
is conceptualised underArticle 21 of the Constitution which relates         D
to personal liberty. Therefore, such a provision calls for liberal
interpretation of Section 438 of the Code in light of Article 21 of
the Constitution. The Code explains that an anticipatory bail is a
pre-arrest legal process which directs that if the person in whose
favour it is issued is thereafter arrested on the accusation in             E
respect of which the direction is issued, he shall be released on
bail. The distinction between an ordinary order of bail and an
order of anticipatory bail is that whereas the former is granted
after arrest and therefore means release from the custody of the            F
police, the latter is granted in anticipation of arrest and is therefore,
effective at the very moment of arrest. A direction under Section
438 is therefore intended to confer conditional immunity from the
'touch' or confinement contemplated by Section 46 of the Code.
The essence of this provision is brought out in the following               G
manner:

     "26. We find a great deal of substance in Mr Tarkunde's
     submission that since denial of bail amounts to deprivation
     of personal liberty, the court should lean against the H
' (1980) 2   sec 565
414        SUPREME COURT REPORTS                    [2015] 10 S.C.R.


A        imposition of unnecessary restrictions on the scope of
         Section 438, especially when no such restrictions have
         been imposed by the legislature in the terms of that
         section. Section 438 is a procedural provision which is
         concerned with the personal liberty of the individual, who
 B       is entitled to the benefit of the presumption of innocence
         since he is not, on the date of his application for anticipatory
         bail, convicted of the offence in respect of which he seeks
         bail. An over-generous infusion of constraints and
         conditions which are not to be found in Section 438 can
 c       make its provisions constitutionally vulnerable since the
         right to personal freedom cannot be made to depend on
         compliance with unreasonable restrictions. The beneficent
         provision contained in Section 438 must be saved, not
         jettisoned. No doubt can linger after the decision in
 D
         Maneka Gandhi v. Union of India, (1978) 1 SCC 248,
         that in order to meet the challenge of Article 21 of the
         Constitution, the procedure established by law for
         depriving a person of his liberty must be fair, just and
 E       reasonable. Section 438, in the form in which it is
         conceived by the legislature, is open to no exception on
         the ground that it prescribes a procedure which is unjust
         or unfair. We ought, at all costs, to avoid throwing it open
         to a Constitutional challenge by reading words in it which
 F       are not to be found therein."

        20. Though the Court observed that the principles which
   govern the grant of ordinary bail may not furnish an exact
   parallel to the right to anticipatory bail, still such principles
 G have to be kept in mind, namely, the object of bail which is
   to secure the attendance of the accused at the trial, and the
   proper test to be applied in the solution of the question
   whether bail should be granted or refused is whether it is
   probable that the party will appear to take his trial.
 H Otherwise, bail is not to be withheld as a punishment. The
 BHADRESH BIPINBHAI SHETH v. STATE OF GUJARAT 415
                [A.K. SIKRI, J.]

Court has also to consider whether there is any possibility of A
the accused tampering with evidence or influencing witnesses
etc. Once these tests are satisfied, bail should be granted to
an undertrial which is also important as viewed from anoth.er
angle, namely, an accused person who enjoys freedom is in a
much better position to look after his case and to properly B
defend himself than if he were in custody. Thus, grant or non-
grant of bail depends upon a variety of circumstances and the
cumulative effect thereof enters into judicial verdict. The Court
stresses that any single circumstance cannot be treated as of
universal validity or as necessarily justifying the grant or refusal C
of bail. After clarifying this position, the Court discussed the
inferences of anticipatory bail in the following manner:
    "31. In regard to anticipatory bail, if the proposed
    accusation appears to stem not from motives of o
    furthering the ends of justice but from some ulterior
    motive, the object being to injure and humiliate the
    applicant by having him arrested, a direction for the
    release of the applicant on bail in the event of his arrest
    would generally be made. On the other hand, if it E
    appears likely, considering the antecedents of the
    applicant, that taking advantage of the order of
    anticipatory bail he will flee from justice, such an order
    would not be made. But the converse of these
    propositions is not necessarily true. That is to say, it F
    cannot be laid down as an inexorable rule that
    anticipatory bail cannot be granted unless the proposed
    accusation appears to be actuated by mala fides; and,
    equally, that anticipatory bail must be granted if there
    is no fear that the applicant will abscond. There are G
    several other considerations, too numerous to
    enumerate, the combined effect of which must weigh
    with the court while granting or rejecting anticipatory
    bail. The nature and seriousness of the proposed H
    charges, the context of the events likely to lead to the
416       SUPREME COURT REPORTS                   [2015] 10 S.C.R.


A       making of the charges, a reasonable possibility of the
        applicant's presence not being secured at the trial, a
        reasonable apprehension that witnesses will be tampered
        with and "the larger interests of the public or the State" are
        some of the considerations which the court has to keep in
 B      mind while deciding an application for anticipatory bail.
        The relevance of these considerations was pointed out in
        The State v. Captain Jagjit Singh, AIR 1962 SC 253 :
        (1962) 3 SCR 622: (1962) 1 Cri LJ 216, which, though,
        was a case under the old Section 498 which corresponds
 c      to the present Section 439 of the Code. It is of paramount
        consideration to remember that the freedom of the
        individual is as necessary for the survival of the society as
        it is for the egoistic purposes of the individual. A person
        seeking anticipatory bail is still a free man entitled to the
 D
        presumption of innocence. He is willing to submit to
        restraints on his freedom, by the acceptance of conditions
        which the court may think fit to impose, in consideration of
        the assurance that if arrested, he shall be enlarged on
 E      bail."

       21. It is pertinent to note that while interpreting the
  expression "may, if it thinks fit" occurring in Section 438{1) of
  the Code, the Court pointed out that it gives discretion to the
F Court to exercise the power in a particular case or not, and
  once such a discretion is there merely because the accused
  is charged with a serious offence may not by itself be the
  reason to refuse the grant of anticipatory bail if the
  circumstances are otherwise justified. At the same time, it is
G also the obligation of the applicant to make out a case for grant
  of anticipatory bail. But that would not mean that he has to
  make out a "special case". The Court also remarked that a
  wise exercise of judicial power inevitably takes care of the evil
  consequences which are likely to flow out of its intemperate
H use.
 BHADRESH BIPINBHAI SHETH v. STATE OF GUJARAT 417
                [A.K. SIKRI, J.]

     22. Another case to which we would like to refer is the A
judgment of a Division Bench of this Court in the case of
Siddharam Sat/ingappa Mhetre v. State of Maharashtra
and Others2 • This case lays down an exhaustive commentary
of Section 438 of the Code covering, in an erudite fashion,
almost all the aspects and in the process relies upon the B
aforesaid Constitution Bench judgment in Gurbaksh Singh's
case. In the very first para, the Court highlighted the conflicting
interests which are to be balanced while taking a decision as
to whether bail is to be granted or not, as is clear from the
following observations:                                             C

    "1. Leave granted. This appeal involves issues of great
    public importance pertaining to the importance of
    individual's personal liberty and the society's interest.
    Society has a vital interest in grant or refusal of bail D
    because every criminal offence is the offence against the
    State. The order granting or refusing bai: must reflect
    perfect balance between the conflicting interests, namely,
    sanctity of individual liberty and the interest of the society.
    The law of bails dovetails two conflicting interests, namely, E
    on the one hand, the requirements of shielding society
    from the hazards of those committing crimes and
    potentiality of repeating the same crime while on bail and
    on the other hand, absolute adherence to the fundamental F
    principle of criminal jurisprudence regarding presumption
    of innocence of an accused until he is found guilty and the
    sanctity of individual liberty."

     23. The principles which can be culled out, forthe purpqses
of the instant case, can be stated as under:                       G

      (i) The complaint filed against the accused needs to be
thoroughly examined, including the aspect whether the
complainant has filed a false or frivolous complaint on earlier
occasion. The court should also examine the fact whether there     H
2
  (2011 l 1 sec 694
418         SUPREME COURT REPORTS                   [2015] 10S.C.R.


A     is any family dispute between the accused and the complainant
      and the complainant must be clearly told that if the complaint
      is found to be false or frivolous, then strict action will be taken
      against him in accordance with law. If the connivance between ·
      the complainant and the investigating officer is established
 B    then action. be taken against the investig2ting officer in
      accordance with law.

           (ii) The gravity of charge and the exact role of the accused
      must be properly comprehended. Before arrest, the arresting
 C    officer must record the valid reasons which have led to the
      arrest of the accused in the case diary. In exceptional cases,
      the reasons could be recorded immediately after the arrest,
      so that while dealing with the bail application, the remarks and
      observations of the arresting officer can also be properly
 D    evaluated by the court.

           (iii) It is imperative for the courts to carefully and with
      meticulous precision evaluate the facts of the case. The
      discretion to grant bail must be exercised on the basis of the
 E    available material and the facts of the particular case. In cases
      where the court is of the considered view that the accused has
      joined the investigation and he is fully cooperating with the
      investigating agency and is not likely to abscond, in that event,
      custodial interrogation should be_ avoided. Agreat ignominy,
 F    humiliation and disgrace is attached to arrest. Arrest leads to
      many serious consequences not only for the accused but for
      the entire family and at times for the entire community. Most
      people do not make any distinction between arrest at a pre-
      conviction stage or post-conviction stage.
 G
       (iv) There is no justification for reading into Section 438
   CrPC the limitations mentioned in Section 437 CrPC. The
   plentitude of Section 438 must be given its full play. There is
   no requirement that the accused must make out a "special
 H case" for the exercise of the power to grant anticipatory bail.
 BHADRESH BIPINBHAI SHETH v. STATE OF GUJARAT 419
                [A.K. SIKRI, J.]

This virtually, reduces the salutary power conferred by Section        A
438 CrPC to a dead letter. A person seeking anticipatory bail
is still a free man entitled to the presumption of innocence. He
is willing to submit to restraints and conditions on his freedom,
by the acceptance of conditions which the court may deem fit
to impose, in consideration of the assurance that if arrested,         B
he shall be enlarged on bail.

     (v)The proper course of action on an application for
anticipatory bail ought to be that after evaluating the averments
and accusations available on the record if the court is inclined C
to grant anticipatory bail then an interim bail be granted and .
notice be issued to the Public Prosecutor. After hearing the
Public Prosecutor the court may either reject the anticipatory
bail application or confirm the initial order of granting bail. The
court would certainly be entitled to impose conditions for the D
grant of anticipatory bail. The Public Prosecutor or the
complainant would be at liberty to move the same court for
cancellation or modifying the conditions of anticipatory bail at
any time if liberty granted by the court is misused. The
anticipatory bail granted by the court should ordinarily be E
continued till the trial of the case.

     (vi) It is a settled legal position that the court which grants
the bail also has the power to cancel it. The discretion of grant
or cancellation of bail can be exercised either at the instance        F
of the accused, the Public Prosecutor or the complainant, on
finding new material or circumstances at any point of time.

     (vii) In pursuance of the order of the Court of Session or
the High Court, once the accused is released on anticipatory G
bail by the trial court, then it would be unreasonable to compel
the accused to surrender before the trial court and again apply
for regular bail.

     (viii) Discretion vested in the court in all matters should be    H
420          SUPREME COURT REPORTS                   [2015] 10S.C.R.


A  exercised with care and circumspection depending upon the
   facts and circumstances justifying its exercise. Similarly, the
   discretion vested with the court under Section 438 CrPC
   should also be exercised with caution and prudence. It is
   unnecessary to travel beyond it and subject the wide power
 B and discretion conferred by the legislature to a rigorous code
   of self-imposed limitations.

           (ix) No inflexible guidelines or straitjacket formula can be
      provided for grant or refusal of anticipatory bail because all
C     circumstances and situations of future cannot be clearly
      visualised for the grant or refusal of anticipatory bail. In
      consonance with legislative intention, the grant or refusal of
      anticipatory bail should necessarily depend on the facts and
      circumstances of each case.
D
          (x)We shall also reproduce para 112 of the judgment
      wherein the Court_ delineated the follov11ing factors and
      parameters that need to be taken into consideration while
      dealing with anticipatory bail:
E
           (a) The nature and gravity of the accusation and the exact
      role of the accused must be properly comprehended before
      arrest is made;

F          (b) 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;

           (c) The possibility of the applicant to flee from justice;
G
           (d} The possibility of the accused's likelihood to repeat
      similar or other offences;

      (e) Where the accusations have been made only with the
H object of injuring or humiliating the app:icant by arresting him
 BHADRESH BIPINBHAI SHETH v. STATE OF GUJARAT 421
                [AK. SIKRI, J.)

or her;                                                               A
     (f) Impact of grant of anticipatory bail particularly in cases
of large magnitude affecting a very large number of people;

    (g) The courts must evaluate the entire available material
                                                                      8
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                  c
overimplication in the cases is a matter of common knowledge
and concern;

      (h) While considering the prayer for grant of anticipatory
bail, a balance has to be struck between two factors, namely,
                                                                      0
no prejudice should be caused to free, fair and full
investigation, and there should be prevention of harassment,
humiliation and unjustified detention of the accused;

     (i) The Court should consider reasonable apprehension
of tampering of the witness or apprehension of threat to the          E
complainant;

     (j) 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         F
there being some doubt as to the genuineness of the
prosecution, in the normal course of events, the accused in
entitled to an order of bail.

      24. Having regard to the facts of this case which have G
already been highlighted above, we feel that no purpose would
be served in compelling the appellant to go behind bars, as
an undertrial, by refusing the anticipatory bail in respect of
alleged incident which is 17 years old and for which the charge
is framed only in the year 2014. The investigation is complete H
422          SUPREME COURT REPORTS                  [2015] 10S.C.R.

                                •
A · and there is no allegation that the appellant may flee the course
    of justice. The FIR was registered and the trial commenced in
    the year 2001; albeit with the charge framed under Section
    506(2) IPC, and during all these periods, the appellant has
    participated in the proceedings. There is no allegation that
B during this period he had tried to influence the witnesses. In
    the aforesaid circumstances, even when there is a serious
    charge levelled against the appellant, that by itself should not
    be the reason to deny anticipatory bail when the matter is
  . examined keeping in view other factors enumerated above.
c
        25. The prosecutrix has moved an application in these
   proceedings for perusing new evidence on the basis of which
   she claims that the appellant has committed breach of
   conditions of anticipatory bail and regular bail. It is not
 D necessary for us to go into the allegations made in this
   application. She would be at liberty to make such an
   application before the trial court for cancellation of bail. We
   may clarify that we have not gone through the merits of this
   application, and as and when such an application is made,
 E the trial court would be free to examine the same and pass the
   order as the trial court deems fit in accordance with law.

           26. Before we part, in order to balance the equities, we
      are of the view that the trial in th is case may be expeditiously
 F    conducted and the trial court should endeavour to complete
      the same within one year.

        27. As a result, we set aside the impugned judgment and
   restore the order dated 18.05.2013 of the learned Additional
 G Sessions Judge granting anticipatory bail to the appellant on
   the conditions mentioned in the said order. Appeals are allowed
   in the aforesaid terms.

      Nidhi Jain                                        Appeals allowed.
 H