MS. XversusTHE STATE OF TELANGANA AND ANR.

466                     [2018]REPORTS
              SUPREME COURT    4 S.C.R. 466              [2018] 4 S.C.R.


A                                   MS. X
                                      v.
                 THE STATE OF TELANGANA AND ANR.
                     (Criminal Appeal No. 000716 of 2018)
B                               MAY 17, 2018
            [DIPAK MISRA, CJI, A. M. KHANWILKAR AND
                   DR. D.Y. CHANDRACHUD, JJ.]
            Bail:
C           Regular bail – u/s. 439 CrPC.- Granted in a case involving
      offences u/ss. 376, 342, 493, 506 and 354(C) of IPC – Cancellation
      of – Held: There is no cogent material to indicate that the accused
      had been guilty of conduct which would warrant his being deprived
      of his liberty – No supervening circumstance made out to warrant
      cancellation of bail – Code of Criminal Procedure, 1973 – s. 439.
D
            On the complaint of the appellant against respondent-
      accused, charge-sheet was filed for offences punishable u/ss. 376,
      343, 493, 506 and 354(C) of IPC. Accused was granted
      anticipatory bail, which was later cancelled on the ground that
      accused had not disclosed that he was an accused in 2G Spectrum
E     case. Thereafter, application for regular bail u/s. 439 CrPC was
      allowed directing to release the accused on bail on executing a
      personal bond of Rs.50,000/-. Hence the present appeal.
            Disposing of the appeal, the Court

F           HELD: 1. Even going by the case of the complainant, there
      was intimate contact between the complainant and the accused
      over a period of nearly six months between July 2015 and January
      2016. Even according to the complainant, she visited the accused
      on two occasions in Hyderabad and stayed with him. The tickets
      for her travel from Mumbai were borne by the accused. The
G     complaint was filed nearly a year thereafter in January 2017. These
      circumstances do bear upon the defence that there was a
      consensual relationship between the complainant and the accused.
      [Para 13] [475-E-F]
            2. The accused had the benefit of an order granting him
H     anticipatory bail. The grant of anticipatory bail was cancelled
                                  466
      MS. X v. THE STATE OF TELANGANA AND ANR.                        467


principally on the ground that he had not disclosed the pendency      A
of a prosecution against him in the 2G Spectrum case. The Court
has been informed during the course of the hearing that the said
prosecution has ended in an acquittal. Regular bail was granted
by the High Court on 17 November 2017 in the present case.
The second FIR which was lodged on 22 November 2017 is not a
                                                                      B
supervening circumstance of such a nature as would warrant the
cancellation of the bail which was granted by the High Court. It is
a settled principle of law that bail once granted should not be
cancelled unless a cogent case, based on a supervening event
has been made out. [Para 14][476-B-C, D]
      3. No supervening circumstance has been made out to             C
warrant the cancellation of the bail. There is no cogent material
to indicate that the accused has been guilty of conduct which
would warrant his being deprived of his liberty. [Para 15][476-E]
      4. However, the quantum of the personal bond fixed by the
High Court should be enhanced in the facts and circumstances of       D
the case. Accordingly, the quantum of the personal bond shall
stand enhanced to Rs 10 lakhs. [Para 16][476-F]
      Kanwar Singh v. State of Rajasthan (2012) 12 SCC
      180 : [2012] 10 SCR 847; Neeru Yadav v. State of UP
      (2016) 15 SCC 422 : [2015] 10 SCR 802 ; State of                E
      Bihar v. Rajballav Prasad (2017) 2 SCC 178 :
      [2016] 9 SCR 652 ; Dolatram v. State of Haryana
      (1995) 1 SCC 349 : [1994] 6 Suppl. SCR 69 ; Central
      Bureau of Investigation, Hyderabad v. Subramani
      Gopalakrishnan (2011) 5 SCC 296 : [2011] 5 SCR                  F
      824 ; Dataram Singh v. State of Uttar Pradesh
      2018 (2) SCALE 285 – referred to.
                       Case Law Reference
      [2012] 10 SCR 847        referred to          Para 11
      [2015] 10 SCR 802        referred to          Para 11
                                                                      G
      [2016] 9 SCR 652         referred to          Para 11
      [1994] 6 Suppl. SCR 69 referred to            Para 12
      [2011] 5 SCR 824         referred to          Para 12
      2018 (2) SCALE 285       referred to          Para 12

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468            SUPREME COURT REPORTS                           [2018] 4 S.C.R.


A           CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
      No. 716 of 2018.
            From the Judgment and Order dated 17.11.2017 of the High Court
      of Judicature at Hyderabad in CRL P No. 10602 of 2017.
            Karuna Nundy, Raunak Nayak, Avinesh Bhardwaj, Ms. Aparna
B     Bhat, Mayank Sapra, Advs for the Appellant.
             Mukul Rohatgi, Sidharth Luthra, Sr. Advs, R. N. Karanjawala,
      Sandeep Kapur, Mahesh Aggarwal, Deb Malya Banerjee, Shivek Trehan,
      Vir Inderpal Singh Sandhu, A. S. Aman, Ms. Niharika Karanjawala,
      Ms. Apoorva Pandey, Abhimanshu Dhyani, Mayank Aggarwal, Ankur
C     Sehgal, Kartik Bhatnagar, Aviral Kapoor, Ms. Iara Khalid, M/s.
      Karanjawala & Co., S. Udaya Kumar Sagar, Mrityunjai Singh, Advs
      for the Respondents.
            The Judgment of the Court was delivered by

D           DR. D. Y. CHANDRACHUD, J. 1. Leave granted.
            2. Bail was granted to the second respondent on 17 November
      2017 by a learned single Judge of the High Court of Judicature at
      Hyderabad for the States of Telangana and Andhra Pradesh. The order
      forms the subject matter of the present appeal.
E            3. The second respondent (“the accused”) is a film producer, based
      in Mumbai. The complainant alleged, in a complaint which she filed on
      10 January 2017, that in June 2014 she had enrolled in an institute which
      imparts training in film acting. She resided in a rented apartment in
      Mumbai. The complainant states that she became acquainted with the
      niece of the accused, who was to be married in December 2014. In the
F
      course of her visits to the home of her friend, the complainant became
      acquainted with the accused, who was producing a Hindi film. In July
      2015 the accused is alleged to have invited himself to the home of the
      complainant. The accused and the complainant had wine. The
      complainant alleges that she felt dizzy after a few sips, and the accused
G     forced himself upon her. It was after she regained senses that she realised
      that the accused had raped her. The accused left her apartment and
      when she called him, it is alleged that he threatened her of being in
      possession of her nude photographs and of his connections with the
      underworld. The complainant alleged that the accused continue to have
H
       MS. X v. THE STATE OF TELANGANA AND ANR.                               469
               [DR. D. Y. CHANDRACHUD, J.]

a relationship with her; that he would come to her home in the hours of       A
night and compel her to have sex with him, against her wishes. On 12
September 2015 it is alleged that he invited her to join him in Hyderabad
where he was shooting a film. The complainant stayed with the accused
in a hotel, when he is alleged to have raped her. She alleges that she
visited Hyderabad again on October 12, 2015 and stayed with him, when
                                                                              B
he raped her. The complainant claims that she suffers from depression
and had attempted suicide. The complainant alleged that the accused
had been making false promises of marriage to her and was exploiting
her continuously. A complaint was lodged before the Station Officer at
Police Station, Hayathnagar in Hyderabad on 10 January 2017.
                                                                              C
      4. After investigation, a charge-sheet has been submitted on 6
March 2018, for offences punishable under Sections 376, 342, 493, 506
and 354 (C) of the Penal Code.
       5. The accused was granted anticipatory bail by the Fourth
Additional Metropolitan Sessions Judge, Hyderabad by an order dated           D
30 January 2017. The accused had the benefit of that order for a period
of eight months. The order of anticipatory bail was cancelled by the
Sessions Judge, principally on the ground that the accused had not
disclosed the fact that he had been accused in the 2G Spectrum case
(CC No.1 of 2011). The order of cancellation was affirmed by the High
Court on 5 September 2017, and by this Court on 22 September 2017,            E
though with the clarification that while dealing with the application under
Section 439 of the Criminal Procedure Code 1973, the Court shall not be
influenced by any of the observations made while cancelling anticipatory
bail. The accused then moved an application under Section 439 for the
grant of bail in Case Crime 33/2017, registered by the Hayathnagar            F
Police Station for offences punishable under Sections 376, 342, 493, 506
and 354 (C) of the Penal Code.
       6. The High Court has allowed the application for the grant of bail
and has directed that the accused be released on executing a personal
bond of Rs 50,000 with two sureties each in a like sum to the satisfaction    G
of the Metropolitan Magistrate. The accused has been directed not to
leave the country without the permission of the trial Court. In allowing
the application, the High Court has relied upon the following
circumstances:

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470               SUPREME COURT REPORTS                        [2018] 4 S.C.R.


A     (i) The accused was on anticipatory bail for a period of about eight
           months during the course of which there is no allegation of improper
           conduct;
      (ii) The grant of anticipatory bail was cancelled only on the ground that
            the accused had not revealed his involvement in the 2G Spectrum
B           case;
      (iii) All material witnesses have been examined during the course of
            the investigation and the cell phone recovered from his possession
            was sent to the forensic science laboratory, whose report is awaited;
      (iv) The accused was granted regular bail during the pendency of the
C          trial in the 2G Spectrum case and there was no allegation of a
           violation of the terms on which bail was granted. In the meantime,
           the accused had travelled abroad with the permission of the Court;
      (v) The accused is suffering from medial ailments;

D     (vi) Though the alleged offences took place between July 2015 and
           January 2016, the complaint was lodged only on 10 January
           2017;
      (vi) The complainant is an adult, who was cognisant of her actions; and
      (vii) The allegation of the complainant that the accused had promised to
E           marry her was a matter of trial and whether her consent was
            obtained by fraud could only be established during the course of
            the trial.
            7. Ms Karuna Nundy, learned counsel appearing on behalf of the
      appellant submits that:
F     (i)     The allegations in the complaint are of a serious nature involving
               rape committed by a person in a position of dominance;
      (ii)    The accused as a film producer wielded a position of power in
              relation to the complainant who was an aspiring actress;

G     (iii)    The lapse of the period between January 2016 (the allegation of
              the complainant being that she was raped between July 2015 and
              January 2016) and the filing of the complaint in January 2017 must
              be construed in the context of her explanation that the conduct of
              the accused had caused her to attempt suicide on three occasions;

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       MS. X v. THE STATE OF TELANGANA AND ANR.                               471
               [DR. D. Y. CHANDRACHUD, J.]

(iv) There is a supervening circumstance which is the filing of a first       A
     information report by the complainant on 22 November 2017
     complaining that while driving her car in New Delhi, an auto had
     intentionally obstructed her path and hit her car besides which, her
     car has been followed by another vehicle. Besides, an attempt has
     been made to pressurise the complainant to withdraw her complaint
                                                                              B
     and to “settle” the dispute against the payment of a consideration
     of Rs 5 crores;
(v) Though a charge-sheet has been filed, the investigation is still
    incomplete. The accused has attempted to mislead the investigation
    by producing a cell phone which belonged to his daughter and not
    to him.                                                                   C

       8. Learned counsel appearing on behalf of the complainant stated
that this is not a case involving a breach of a promise to marry.
      9. On the other hand Mr Mukul Rohtagi and Mr Sidharth Luthra,
learned senior counsel appearing on behalf of the accused submitted           D
that:
(i)   Bail was granted to the accused on 17 November 2017. The
      Special Leave Petition was filed on 23 December 2017 and was in
      objections of the Registry of this court until it was listed in March
      2018. The second FIR was lodged on 22 November 2017, four               E
      days after the grant of bail to somehow set up a case of supervening
      event. There is nothing before or after the grant of bail which
      reflects on the conduct of the accused;
(ii) Even before the grant of regular bail, the accused had the benefit
     of an order of anticipatory bail for nearly eight months and the sole    F
     ground on which it was cancelled was a non-disclosure of the
     prosecution in the 2G Spectrum case (which has since ended in
     acquittal);
(iii) After the order of anticipatory bail was cancelled, the accused
      spent 58 days in custody, including police and judicial custody and
                                                                              G
      cooperated with the investigation in all respects;
(iv) The allegations of rape span over a period between July 2015 to
     January 2017, both in Mumbai and Hyderabad. Going by the case
     of the complainant, she voluntarily visited the accused in Hyderabad
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472             SUPREME COURT REPORTS                           [2018] 4 S.C.R.


A           during the course of a film shooting and stayed with him in a hotel
            on two occasions for which tickets were provided by the accused.
            The relationship between the complainant and the accused was of
            a consensual nature and the filing of a complaint nearly one year
            after the last contact between them indicates that it is an after-
            thought;
B
      (v) The explanation that the complaint was filed a year later because
           the complainant was undergoing treatment and had attempted to
           commit suicide has no factual basis and no medical record has
           been produced;
C     (vi) The case in the complaint that the accused had betrayed a promise
           to marry the complainant is sought to be given up in the course of
           the submission before this Court as well as in the rejoinder which
           has been filed in these proceedings.
      (vii) Supervening circumstances, for the cancellation of bail, must be of
D           such a nature as to lead to the conclusion that the accused does
            not deserve to be at liberty either by reason of a violation of the
            conditions of bail or due to supervening conduct which bears upon
            the misuse of liberty by the accused. No such case is made out.
             10. During the course of the hearing, learned counsel appearing
E     on behalf of the complainant alleged before the Court that her submissions
      in assailing the order of the High Court deal with two facets namely:
      (i) Whether the High Court was justified in granting bail to the accused
          under Section 439;
      (ii) Whether there are any supervening circumstances which would
F          warrant the cancellation of the bail granted by the High Court.
             11. While the principles in regard to the grant of bail under Section
      439 are well settled, we may note for the completeness of the record,
      that reliance has been placed on behalf of the appellant on the decisions
      of this Court in Kanwar Singh v State of Rajasthan1, Neeru Yadav v
G     State of UP2 and State of Bihar v Rajballav Prasad3. In Kanwar
      Singh, a Bench of two learned Judges of this Court has held thus:

      1
        2012 (12() SCC 180
      2
        2016(15) SCC 422
      3
        2017(2)SCC 178
H
       MS. X v. THE STATE OF TELANGANA AND ANR.                                   473
               [DR. D. Y. CHANDRACHUD, J.]

       “Section 439 of the Code confers very wide powers on the High              A
       Court and the Court of Sessions regarding bail. But, while granting
       bail, the High Court and the Sessions Court are guided by the
       same considerations as other courts. That is to say, the gravity of
       the crime, the character of the evidence, position and status of
       the accused with reference to the victim and witnesses, the
                                                                                  B
       likelihood of the accused fleeing from justice and repeating the
       offence, the possibility of his tampering with the witnesses and
       obstructing the course of justice and such other grounds are
       required to be taken into consideration. Each criminal case presents
       its own peculiar factual scenario and, therefore, certain grounds
       peculiar to a particular case may have to be taken into account by         C
       the court.”
In Neeru Yadav, applying the same principle, this Court held that:
       “It is a well-settled principle of law that while dealing with an
       application for grant of bail, it is the duty of the Court to take into
       consideration certain factors and they basically are: (i) the nature       D
       of accusation and the severity of punishment in cases of conviction
       and the nature of supporting evidence, (ii) reasonable apprehension
       of tampering with the witnesses for apprehension of threat to the
       complainant, and (iii) prima facie satisfaction of the Court in support
       of the charge.”
                                                                                  E
       The decision in Rajballav Prasad emphasises that while the liberty
of the subject is an important consideration, the public interest in the
proper administration of criminal justice is equally important:
       “...undoubtedly the courts have to adopt a liberal approach while
       considering bail applications of accused persons. However, in a
       given case, if it is found that there is a possibility of interdicting     F
       fair trial by the accused if released on bail, this public interest of
       fair trial would outweigh the personal interest of the accused while
       undertaking the task of balancing the liberty of the accused on the
       one hand and interest of the society to have a fair trial on the
       other hand. When the witnesses are not able to depose correctly            G
       in the court of law, it results in low rate of conviction and many
       times even hardened criminals escape the conviction. It shakes
       public confidence in the criminal justice delivery system. It is this
       need for larger public interest to ensure that criminal justice delivery
       system works efficiently, smoothly and in a fair manner that has
       to be given prime importance in such situations.”                          H
474            SUPREME COURT REPORTS                           [2018] 4 S.C.R.


A             12. In a consistent line of precedent this Court has emphasised
      the distinction between the rejection of bail in a non-bailable case at the
      initial stage and the cancellation of bail after it has been granted. In
      adverting to the distinction, a Bench of two learned Judges of this Court
      in Dolatram v State of Haryana4 observed that:
B           “Rejection of a bail in a non-bailable case at the initial stage and
            the cancellation of bail so granted, have to be considered and
            dealt with on different basis. Very cogent and overwhelming
            circumstances are necessary for an order directing the cancellation
            of the bail, already granted. Generally speaking, the grounds for
            cancellation of the bail, already granted, broadly (illustrative and
C           not exhaustive) are: interference or attempt to interfere with the
            due course of administration of justice or evasion of attempt to
            evade the due course of justice or abuse of the concession granted
            to the accused in any manner. The satisfaction of the court, on
            the basis of material placed on the record of the possibility of the
D           accused absconding is yet another reason justifying the cancellation
            of bail. However, bail once granted should not be cancelled in a
            mechanical manner without considering whether any supervening
            circumstances have rendered it no longer conducive to a fair trial
            to allow the accused to retain his freedom by enjoying the
            concession of bail during the trial.”
E
            These principles have been reiterated by another two Judge Bench
      decision in Central Bureau of Investigation, Hyderabad v
      Subramani Gopalakrishnan5 and more recently in Dataram Singh v
      State of Uttar Pradesh6:

F           “It is also relevant to note that there is difference between
            yardsticks for cancellation of bail and appeal against the order
            granting bail. Very cogent and overwhelming circumstances are
            necessary for an order directing the cancellation of bail already
            granted. Generally speaking, the grounds for cancellation of bail
            are, interference or attempt to interfere with the due course of
G           administration of justice or evasion or attempt to evade the due
            course of justice or abuse of the concessions granted to the accused
            in any manner. These are all only few illustrative materials. The
      4
        (1995) 1 SCC 349
      5
        (2011) 5 SCC 296
      6
        2018 (2) SCALE 285
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       MS. X v. THE STATE OF TELANGANA AND ANR.                                475
               [DR. D. Y. CHANDRACHUD, J.]

      satisfaction of the Court on the basis of the materials placed on        A
      record of the possibility of the accused absconding is another
      reason justifying the cancellation of bail. In other words, bail once
      granted should not be cancelled in a mechanical manner without
      considering whether any supervening circumstances have rendered
      it no longer conducive to a fair trial to allow the accused to retain
                                                                               B
      his freedom by enjoying the concession of bail during the trial.”
       13. Having considered the rival submissions, we are not at this
stage, inclined to delve into the merits of the allegations at any length in
order to preclude the possibility of our observations influencing the course
of the trial. Since the appeal has been argued at some length before the
Court, we are indicating our reasons, though with a clarification – by         C
way of abundant caution – that our observations are confined to the
issues which arise here in an appeal against the order of the High Court
granting bail under Section 439. Having heard learned counsel, we have
arrived at the conclusion that the exercise of discretion by the High
Court in the present case cannot be faulted. We must, at the outset,           D
note that the case of the complainant is that the accused had (as she
described in the complaint) “been making false promises for getting
married to her”. This has been reiterated in the charge-sheet which has
been submitted on 6 March 2018. At this stage, all that we need to note
is that even going by the case of the complainant, there was intimate
contact between the complainant and the accused over a period of nearly        E
six months between July 2015 and January 2016. Even according to the
complainant, she visited the accused on two occasions in Hyderabad
and stayed with him. The tickets for her travel from Mumbai were borne
by the accused. The complaint was filed nearly a year thereafter in
January 2017. This is a relevant circumstance which has been taken             F
note of by the High Court. These circumstances do bear upon the
defence that there was a consensual relationship between the complainant
and the accused. Both in her complaint as well as in the charge-sheet,
it has been alleged that the accused had falsely promised to marry the
complainant. However, in the course of the rejoinder, the complainant
has substantially diluted this stand, alleging that:                           G

      “That the Petitioner has at every stage – including in arguments
      before this Hon’ble Court – maintained that the promise to marry
      was merely a complete elucidation of the facts and circumstances
      of the case.”
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476             SUPREME COURT REPORTS                          [2018] 4 S.C.R.


A           During the course of the hearing, learned counsel appearing on
      behalf of the complainant submitted that this is not a case involving a
      breach of a promise to marry.
             14. The accused had the benefit of an order granting him
      anticipatory bail. The grant of anticipatory bail was cancelled principally
B     on the ground that he had not disclosed the pendency of a prosecution
      against him in the 2G Spectrum case. The Court has been informed
      during the course of the hearing that the said prosecution has ended in
      an acquittal. Regular bail was granted by the High Court on 17 November
      2017 in the present case. The second FIR which was lodged on 22
      November 2017 is not, in our view, a supervening circumstance of such
C     a nature as would warrant the cancellation of the bail which was granted
      by the High Court. The learned counsel appearing on behalf of the accused
      has submitted that the lodging of the second FIR, four days after the
      order of bail is merely an attempt to bolster a case based on a supervening
      event and that it suffers from vagueness and a complete absence of
D     details. We are not inclined to make any further observations and leave
      the matter there. Above all, the Court must bear in mind that it is a
      settled principle of law that bail once granted should not be cancelled
      unless a cogent case, based on a supervening event has been made out.
      We find that to be absent in the present case.
E             15. For the above reasons, we hold that the order of the High
      Court allowing the application for bail cannot be faulted. Moreover, no
      supervening circumstance has been made out to warrant the cancellation
      of the bail. There is no cogent material to indicate that the accused has
      been guilty of conduct which would warrant his being deprived of his
      liberty.
F
             16. However, we are of the view that the quantum of the personal
      bond fixed by the High Court should be enhanced in the facts and
      circumstances of the case. We, accordingly direct that the quantum of
      the personal bond shall stand enhanced to Rs 10 lakhs. Compliance
      shall be effected within two weeks from today. Subject to the above
G     modification, the appeal shall stand disposed of. Pending IAs, if any,
      shall also stand disposed of.


      Kalpana K. Tripathy                                       Appeal disposed of.

H