Bhadresh Bipinbhai v. Sate of Gujarat & Anr

INTRODUCTION

The present case Bhadresh Bipinbhai v. Sate of Gujarat & Anr., decide by the Hon’ble Supreme Court of India on 1^st September 2015, resolves around the principles governing the grant of anticipatory bail under Section 438 Criminal Procedure Code (CrPC), 1973, particularly in cases involving delayed allegations of rape. The appellant had initially been granted anticipatory bail by the Session Court, which was subsequently set aside by the High Court. The issue before the court raised significant questions pertaining to the scope and interpretation of Section 438 CrPC, the impact of delaying in lodging rape allegations, and the balance between the right to personal liberty under Article 21 of the Constitution and the gravity of allegations. The court emphasized balancing victim protection with safeguards against false accusation, issuing key guidelines on anticipatory bail in delayed serious charges cases.

FACTS OF THE CASE 

1. In May 2001, a complaint against the appellant (Bhadresh Bipinbhai Sheth), alleging harassment, blackmail, and rape. However, on May, 31-2001, the police did not registered her allegation of rape in the FIR. 
2. As a result, the FIR was registered under Section 502(2) (criminal intimidation) of the Indian Penal Code(IPC), and not under section 376 (rape). Later the man got bail, and the trial started but it moved minimal progress over the years.
3. In 2010, nearly nine years after the initial complaint, the prosecutrix sought to add charges under Section 376 IPC (rape). The Metropolitan Magistrate initially deferred this application, suggesting it be considered after the chief examination of the complaint. Upon revision, the Session Court remanded the case for fresh consideration, leading to a order in March 2012 directing further investigation under Section 173(8) of the Code of Criminal Procedure (CrPC). 
4. Since the rape charges was not added, the police file a revised chargesheet committed, the Magistrate committed the case to the Sessions Court and order the appellant into judicial custody, cancelling his bail bond.
5. To avoid being arrested, the appellant quickly applied for anticipatory bail in the Session Court. In 2013, the Session Court granted him an anticipatory bail. 
6. Later, in 2014, prosecutrix when to the Gujarat High Court, which cancelled the anticipatory bail saying the charges were serious and the appellant might misuse his freedom.
7. Appellant then approach the apex court to challenge this cancellation. 

ISSUES OF THE CASE 

1. Whether anticipatory bail under Section 438 CrPC can be granted in a case involving a delayed allegation of rape?
2. Whether the High Court was justified in setting aside the Sessions Court’s order granting anticipated bail?
3. whether the delay in adding the rape charge affected the credibility of the allegation?
4. Whether the non- inclusion of rape in the initial rape FIR indicates suppression or falsity if the allegation?
5. Whether the scope and interpretation of Section 438 CrPC should be expanded in light of Article 21 of the Constitution, especially in cases involving serious allegation such as rape?

 JUDGEMENT

The court, after thorough examination of the facts, legal provisions and after evaluating the precedents cited by both the parties, laid down the following in its judgement:

1. With respect to grand of anticipatory bail under Section 438 CrPC, the Court held that the power under Section 438 CrPC is not restricted by the seriousness of the offence alone. The Delay of over nine years in adding the allegation of rape, with no plausible explanation, casts a doubt on the credibility of the accusation and warrants judicial scrutiny.
2. Whether the High Court was justified in setting aside the Sessions Court’s order granting anticipated bail, court found that there was no cogent reason or material change in circumstances warranting such interference. The High Court did assign valid grounds for cancellation, and the accused had no violated any bail condition.
3. Regarding whether the delay in adding the rape charge affected the credibility of the allegation, the court observed that an unexplained delay can be fatal to the credibility of allegations in sextual offences, it notes that the FIR initially mentioned other offences but completely omitted any mention of rape, and the charges was included only later when the bail application was filed.
4. On the non- inclusion of rape in the initial rape FIR indicates suppression or falsity if the allegation, the court stated that such an omission raises suspicion of fabrication or suppression of facts, especially when the FIR was drafted with legal assistance. The conduct of the complainant and the timing of the allegation appear to be strategically motivated rather than spontaneous. 
5. With respect to, the scope and interpretation of Section 438 CrPC should be expanded in light of Article 21 of the Constitution, especially in cases involving serious allegation such as rape, the court afformed that the right to liberty is a fundamental right and liberty should not be denied casually based on mere allegations. While recognising the gravity of rape charges, the court emphasized that due process and presumption of innocence must be upheld until guilty is proven.
6. The Supreme Court concluded that the High Court erred in cancelling the anticipatory bail without substantial evidence of misuse or new circumstances warranting such cancellation. It reinstated the anticipatory bail granted by the Session Court, highlighting that mere addition of a serious charge does not automatically justify the cancellation of bail if the accused has adhered to bail conditions and there are no new adverse developments.

REASONING 

1. The complainant had filed the FIR in 2016 without any mention of rape. The allegation of rape was added only after a gap of 9 years (in 2023), and that too, when then accused sought anticipatory bail. The court held that such a delay in raising a grave charge like rape, without any satisfactory explanation, undermines the credibility of the complaint. Courts have consistently held that while delay alone is not fatal, unexplained and strategic delay weakens the case and cannot be ignored.
2. The court noted that the complainant had legal assistance when she filed the FIR yet chose not to mention any allegation of rape. This omission is material and cannot be dismissed as an oversight. Such silence, following by a sudden inclusion of a serious charge, raises doubts regarding the genuineness of the allegations and suggests an element of afterthought or vindictiveness. 
3. The Session Court has granted anticipatory bail after evaluating the material and considering that custodial interrogation was not necessary. The accused had not providing any fresh evidence or justification, which the court held to be arbitrary and unjustified. Merely because the offence was serious did not justify cancellation when the facts remained unchanged.
4. The court reaffirmed that anticipatory bail is a constitutional protection under Article 21. Denying anticipatory bail solely because the offence alleged is serious violates the principle of personal liberty. Here, the accused had cooperated with the investigation, no recovery was pending, and there was no likelihood of tampering with evidence. Hence, custodial interrogation was not necessary.
5. The court relies on earlier rulings which stated that anticipatory bail cannot be refused merely due to the gravity of the offence, especially when the facts indicate mala fide or political vendetta. The court is duly- bound to balance the interest of justice with the rights of the accused, and in this case, there was no prima facie evidence requiring arrest.
6. The court underscored that personal liberty is a cornerstone of constitutional values. In the absence of a strong prima facie case, arrest and detention would amount to an infringement of fundamental rights. Section 438 CrPC requires a broad and purposive interpretation to reveal manipulation or fabrication in the facts.
7. The belated addition of the rape charge at the bail stage pointed to possible misuse of criminal law to pressurize or harass the accused. The court emphasized that while sexual offences must be dealt with sensitivity, false or motivated allegations equally deserve strict judicial scrutiny.

CONCLUSION

The court concluded that anticipatory bail under Section 438 CrPC can indeed be granted even in cases involving serious offences like rape, provided the facts and circumstances warrant such protection. The inordinate and unexplained delay in adding the allegation of rape, particularly after the filing of the initial FIR with legal assistance, raises serious doubts about the authenticity of the complaint. The High Cout’s decision to cancel anticipatory bail, without new material on record or any violation of bail conditions, was held to be legally unsustainable. The court emphasized that Article 21 of the Constitution mandates a fair and just procedure, and anticipatory bail is a vital safeguard to prevent misuse of the criminal justice process, especially when arrest is not necessary for investigation. The judicial discretion under Section 438 CrPC must be exercised with sensitivity and caution, but not at cost of fundamental rights of the accused, particularly when the prosecution’s conduct indicates mala fides or ulterior motives. Thus, the Supreme Court restored order grated by the Session Courts and the cancellation order by the High Court was set aside for anticipatory bail. 

REFERENCE  

1. https://indiankanoon.org/doc/180463386/
2. https://www.casemine.com/judgement/in/5790b344e561097e45a4e3ca

Written by Shama Gulshan an Intern under Legal Vidhiya

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