2007 (10) TMI 700 - SC - Indian Laws

Application for grant of anticipatory bail - Commission of an offence punishable under Sections 376 342 r/w Section 34 of the Indian Penal Code (IPC) and u/s 5 of the Prevention of Immoral Trafficking Act - Respondents herein comprise of police officers politicians and a businessman - HELD THAT - Parameters for grant of anticipatory bail in such a serious offence being u/s 376 376(2)(g) IPC in our opinion are required to be satisfied. D.K. Ganesh Babu v. P.T. Manokaran and Ors. 2007 (2) TMI 701 - SUPREME COURT . A mistake in regard to her age as recorded in the First Information Report or the first medical document or even in her supplementary affidavit should yield to the public documents which have been produced by the prosecution at this stage. Even before the learned Chief Judicial Magistrate she disclosed her date of birth to be 22.06.1991. Therefore even according to that she was below 16 years of age. Immoral conduct on the part of police officers should not be encouraged. We fail to understand as to how the police officers could go underground. They had been changing their residence very frequently. Although most of them were police officers their whereabouts were not known. During the aforementioned period attempts had been made even by Mahananda to obtain the custody of the girl at whose instance we do not know. On the one hand Mahananda had been praying for the custody of the girl and Sunita the mother of the girl as noticed hereinbefore had affirmed an affidavit in relation to her date of birth. These may not be acts of voluntariness on their part. It therefore in our opinion is a case where no anticipatory bail should have been granted. We may also notice that the High Court itself has refused to grant regular bail to the accused against whom charge-sheet has been submitted. The learned Session Judge also did not grant bail to some of the accused persons. If on the same materials prayer for regular bail has been rejected we fail to see any reason as to why and on what basis the respondents could be enlarged on anticipatory bail. Thus we are of the opinion that the High Court ought not to have granted anticipatory bail to the respondents. The impugned judgment therefore cannot be sustained which is set aside accordingly. The appeal is allowed. The respondents may surrender before the Chief Judicial Magistrate and move an application for regular bail which may be considered on its own merit without being influenced in any way by the judgment of this Court.

Issues Involved:
1. Grant of anticipatory bail to the respondents.
2. Determination of the prosecutrix's age and its impact on the case.
3. Consideration of the nature and gravity of the accusations.
4. Compliance with conditions imposed by the High Court.
5. Necessity of custodial interrogation.
6. Impact of respondents' absconding on the case.
7. Evaluation of evidence and the prosecutrix's statements.
8. Legal principles governing anticipatory bail in serious offenses.

Issue-wise Detailed Analysis:

1. Grant of anticipatory bail to the respondents:
The appeal challenges the High Court's decision to grant anticipatory bail to the respondents, who include police officers, politicians, and a businessman, for offenses under Sections 376, 342 read with Section 34 of the IPC, and Section 5 of the Prevention of Immoral Trafficking Act. The High Court allowed the bail, holding that the prosecutrix was a major and had consented to sex for consideration, thus prima facie not making out a case under Section 376 IPC.

2. Determination of the prosecutrix's age and its impact on the case:
The prosecutrix's age was a critical factor. Public documents, including her birth certificate and school leaving certificates, indicated her date of birth as 28.06.1991, suggesting she was a minor during the period in question. The High Court's decision was challenged on the grounds that the prosecutrix's minor status rendered her consent legally insignificant. The Supreme Court emphasized that if the prosecutrix was a minor, her consent would be irrelevant.

3. Consideration of the nature and gravity of the accusations:
The Supreme Court highlighted the seriousness of the accusations, including rape and immoral trafficking. It was noted that the prosecutrix had been subjected to rape and exploitation, and her statements implicated the respondents. The Court underscored the need for a thorough investigation, given the gravity of the offenses.

4. Compliance with conditions imposed by the High Court:
The respondents had not fully complied with the conditions imposed by the High Court. They had absconded for a significant period and had not been present on at least four occasions. The Supreme Court found this non-compliance concerning and indicative of the respondents' intent to evade justice.

5. Necessity of custodial interrogation:
The Supreme Court emphasized the importance of custodial interrogation in this case. Given the nature of the offenses and the respondents' absconding behavior, custodial interrogation was deemed necessary to uncover the full extent of the crimes and gather crucial evidence.

6. Impact of respondents' absconding on the case:
The respondents' absconding was a significant factor in the Supreme Court's decision. Their prolonged abscondance and frequent changes of residence raised concerns about their intentions and potential to tamper with evidence. The Court noted that their absconding behavior undermined the integrity of the investigation.

7. Evaluation of evidence and the prosecutrix's statements:
The Supreme Court considered the prosecutrix's statements and the corroborative evidence. It was noted that the prosecutrix had made categorical allegations against the respondents in her statements to the police and the Magistrate. The Court emphasized that at this stage, her evidence should not be rejected outright and warranted thorough investigation.

8. Legal principles governing anticipatory bail in serious offenses:
The Supreme Court reiterated the principles governing anticipatory bail, particularly in serious offenses like rape and immoral trafficking. The Court emphasized that anticipatory bail should not be granted lightly in such cases and that the High Court had erred in its assessment of the prosecutrix's age and the gravity of the accusations.

Conclusion:
The Supreme Court set aside the High Court's judgment granting anticipatory bail to the respondents. It directed the respondents to surrender before the Chief Judicial Magistrate and apply for regular bail, which should be considered on its own merits without being influenced by the Supreme Court's judgment. The appeal was allowed, emphasizing the need for a thorough investigation and the importance of custodial interrogation in this serious case.

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