'Bail Can Be Cancelled If Serious Offences Are Subsequently Added To FIR' : Supreme Court Sets Aside Bail In 'Casting Couch' Case

The Supreme Court has reiterated that subsequent addition of more serious offences to the FIR can be a circumstance for a Court to cancel the bail granted by it.

"Addition of a serious offence can be a circumstance where a Court can direct that the accused be arrested and committed to custody even though an order of bail was earlier granted in his favour in respect of the offences with which he was charged when his application for bail was considered and a favourable order was passed", a bench comprising Justices AS Bopanna and Hima Kohli observed while setting aside an order of the Bombay High Court which granted bail to a man in a 'casting couch' case.

The bench was considering an appeal filed by a model who alleged that the accused, a businessman, raped her after luring her with offers of modelling assignments. The FIR did not initially mention the offence of rape and was registered for the offences punishable under Sections 354, 354-B and 506 IPC. The Magistrate granted bail to the accused. Later, the victim filed a complaint before higher police authorities stating that the investigation was not proceeding on the right track. Following that, her supplementary statement was recorded and the offence of rape (Section 376 IPC) was included in the FIR. The police also moved for cancellation of bail on the basis of the supplementary statement. The Magistrate allowed the application to cancel the bail.

The accused meanwhile moved the Sessions Court for anticipatory bail, with no success. Later, the accused got anticipatory bail from the Bombay High Court, against which the victim moved the Supreme Court.

The Supreme Court noted that High Court was swayed by the “star variations in the narration of the prosecutrix”. In this regard, the Supreme Court noted that though the offence of rape was specifically mentioned in the FIR only at a later stage, even the first statement of the victim had the ingredients which are necessary to constitute the offence of rape.

Based on the precedentPrasanta Kumar Sarkar v. Ashis Chatterjee And Another (2010) 14 SCC 496 which discussed the consequence of adding graver offence to the FIR, the judgment authored by Justice Kohli observed :

"addition of a serious offence can be a circumstance where a Court can direct that the accused be arrested and committed to custody even though an order of bail was earlier granted in his favour in respect of the offences with which he was charged when his application for bail was considered and a favourable order was passed. The recourse available to an accused in a situation where after grant of bail, further cognizable and non-bailable offences are added to the FIR, is for him to surrender and apply afresh for bail in respect of the newly added offences. The investigating agency is also entitled to move the Court for seeking the custody of the accused by invoking the provisions of 437(5)3 and 439(2)34 Cr.P.C., falling under Chapter XXXII of the Statute that deals with provisions relating to bails and bonds" 

The Court also noted that the gravity and seriousness of the allegations and financial stature and position of the accused vis-a-vis the victim were not considered by the High Court. The Court also criticised the High Court for not allowing the intervention of the victim in the bail application,.

"No doubt, the State was present and was represented in the said proceedings, but the right of the prosecutrix could not have been whittled down for this reason alone. In a crime of this nature where ordinarily, there is no other witness except for the prosecutrix herself, it was all the more incumbent for the High Court to have lent its ear to the appellant".

In this context, the Court referred to the judgment in Jagjeet Singh And Others v. Ashish Mishra Alias Monu And Another 2022 LiveLaw (SC) 376 which held that a victim of the crime has the right to be heard in the bail application of the accused.

Senior Advocate R Basant appeared for the victim and Senior Advocate Sanjay Hegde appeared for the accused.

Case Title : Ms.X vs State of Maharashtra (CRIMINAL APPEALS NO. 822-823 OF 2023)

Citation : 2023 LiveLaw (SC) 205

Code of Criminal Procedure 1973- Section 438 - Addition of a serious offence can be a circumstance where a Court can direct that the accused be arrested and committed to custody even though an order of bail was earlier granted in his favour in respect of the offences with which he was charged when his application for bail was considered and a favourable order was passed. The recourse available to an accused in a situation where after grant of bail, further cognizable and non-bailable offences are added to the FIR, is for him to surrender and apply afresh for bail in respect of the newly added offences. The investigating agency is also entitled to move the Court for seeking the custody of the accused by invoking the provisions of 437(5)3 and 439(2)34 Cr.P.C., falling under Chapter XXXII of the Statute that deals with provisions relating to bails and bonds- followed Prasanta Kumar Sarkar v. Ashis Chatterjee And Another (2010) 14 SCC 496- Para 20

Code of Criminal Procedure 1973- Section 438 -Victim has right to be heard in bail application of the accused- No doubt, the State was present and was represented in the said proceedings, but the right of the prosecutrix could not have been whittled down for this reason alone. In a crime of this nature where ordinarily, there is no other witness except for the prosecutrix herself, it was all the more incumbent for the High Court to have lent its ear to the appellant - followed Jagjeet Singh And Others v. Ashish Mishra Alias Monu And Another 2022 LiveLaw (SC) 376- Para 23, 24Code of Criminal Procedure 1973- Section 438- Supreme Court sets aside anticipatory bail granted to an accused in a 'casting couch' rape case- The nature and gravity of the alleged offence has been disregarded by the HC- So has the financial stature, position and standing of the accused vis-à-vis the appellant/prosecutrix been ignored- Para 22

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