Supreme Court declines to reverse High Court order cancelling bail of rape-accused

THE Supreme Court, on May 2, refused to interfere with the Madhya Pradesh High Court’s order quashing the trial court’s order granting bail to an accused facing rape and aggravated sexual assault charges under the Indian Penal Code [IPC] and Protection of Children from Sexual Offences Act, 2012 [POCSO Act], respectively. The accused are the victim’s paternal uncle and his friend.

A division bench of Justices Sanjiv Khanna and Bela Trivedi observed that the high court order did not call for the interference, and that the trial court overlooked the gravity of offence, severity of punishment and the allegations in the first information report [FIR], which are serious in nature.

The prosecutrix, when she was aged about nine years, was allegedly raped on various occasions, throughout the course of six years commencing from 2013 to February 2019 by the paternal uncle of the prosecutrix, and who at the material point of time lived in the same joint family in which the grandparents of prosecutrix also lived. As per the prosecutrix’s statement recorded under Section 164 of the Criminal Procedure Code [CrPC], when she was in the sixth standard, Yash Sehgal – accused no. 1, called his friend Saksham Bhasin- accused no. 2 to the joint family household, where they both took turns to rape the prosecutrix. It was only in 2021 that an FIR was lodged against the accused under Sections 376(2)(f)376(2)(j)376(2)(k)376(2)(n) (punishment for different degrees of rape) and 376DA (punishment for gang rape of woman under sixteen years of age) of Indian Penal Code, and Sections 5(l)5(m)5(n) (aggravated penetrative sexual assault) and 6 (punishment for aggravated penetrative sexual assault) of the POCSO Act.

Appearing for the accused, senior advocate Vibha Datta Makhija sought to argue that the high court overlooked the parameters for cancelling the bail, and that the accused have not been living in the city where the victim resides. She also submitted that the accused are students, and pursuing higher studies.

Appearing for the de facto complainant-father of the victim, senior advocate Indira Jaising sought to argue that the appeal filed by the petitioners/accused made a number of concealment of facts, namely the statement recorded by the victim and her parents under section 164 of the CrPC. Besides, the order of the trial court rejecting the juvenile claim of the accused persons has also been not put on record by the accused. She further brought to the notice of the court that there had been three complaints against the accused person post-grant of bail by the trial court, regarding their intimidating the victim and her family.

The bench, after hearing both the parties, proceeded to dismiss the appeal. At the request of Jaising, assisted by advocate Nipun Saxena, the court also directed to expedite the trial. It also said the accused can apply for bail if there is a change in circumstances, and the same will be decided in accordance with the law.

On March 9, 2021, a special court under the POCSO Act granted bail to the accused persons within 14 days of their arrest, which Jaising described as something unheard of. As per the special court, the accused deserved bail because they are students completing their respective education; one of the accused persons had been studying in Navi Mumbai and the other accused had been studying at Jaipur, without any criminal record of the accused available on record.

The High Court, on April 18 this year, on an appeal filed by the father of the victim, cancelled the bail granted to the accused persons, observing that “though, in the medical examination report of the prosecutrix, it was mentioned that no definite opinion can be given regarding rape but apart from that it is also mentioned that the hymen was old torn and two fingers were easily going in the vagina which prima facie corroborates the fact that she was sexually abused. It also opined that the delay in lodging an FIR was also explained by the prosecution”. 

The Psychiatric Evaluation Report of the prosecutrix, which was before the high court, suggested that the prosecutrix had suffered emotional and mental trauma. Prosecutrix’s father was on caveat before the Supreme Court filed through Advocate-on-Record, Astha Sharma.

The Supreme Court has been taking a serious view of POCSO cases. Last month, the Supreme Court in Ms. Y versus State of Rajasthan set aside a High Court order granting bail to POCSO accused. It had observed that the high court order in question was cryptic, did not take into consideration the grievous offence of rape by the accused against his young niece of 19 years of age, or that the accused was a habitual offender.