"Bhaiya Is Back" Posters Lead To Supreme Court Cancelling Bail Granted To Rape-Accused Student Leader

In a case where posters saying "Bhaiya is back" was put up to celebrate the release of a rape-accused on bail, the Supreme Court set aside the bail, observing that "brazen conduct of the accused has evoked a bona fide fear in complainant's mind that she would not get a free and fair trial if he remains enlarged on bail and that there is a likelihood of his influencing the material witnesses".

 While observing that the accused - a student leader studying law - doesn't deserve concession of bail, a bench comprising Chief Justice of India NV Ramana, Justice Krishna Murari and Justice Hima Kohli has directed the accused to surrender in a week.

The bench observed that even if it is assumed that the posters in question were not contemporaneous to the release of the accused, the captions tagged to his photographs on the social media highlight the superior position and power wielded by him and his family in the society and its deleterious impact on the complainant. 

With regard to the argument of the accused that posters were related to celebration of the festival "Maa Narmada Jayanti", the bench has observed that the emojis of crowns and hearts tagged with the captions like" Bhaiyaa is back", "Back to Bhaiyaa", and "Welcome to Role Janeman" are devoid of any religious sentiments sought to be portrayed by the accused.

According to the bench, they amplify the celebratory mood of the accused and his supporters on his having been released from detention in less than two months of being taken into custody for a grave offence that entails sentence of not less than ten years that may even extend to life.

Therefore the bench recorded, "The respondent No. 2 does not deserve the concession of bail. Relevant material brought on record has been overlooked by the High Court while granting him bail. The supervening adverse circumstances referred to, also warrant cancellation of bail. Accordingly, the impugned order is quashed and set aside and the respondent No. 2 is directed to surrender within one week from the date of passing of this order." 

Circumstance for cancelling bail

Referring to precedent, the judgment authored by Justice Kohli enumerated some of the circumstances where bail granted to the accused under Section 439 (1) of the Cr.P.C. can be cancelled are enumerated below: -

a) If he misuses his liberty by indulging in similar/other criminal activity;

b) If he interferes with the course of investigation;

c) If he attempts to tamper with the evidence;

d) If he attempts to influence/threaten the witnesses;

e) If he evades or attempts to evade court proceedings;

f) If he indulges in activities which would hamper smooth investigation;

g) If he is likely to flee from the country;

h) If he attempts to make himself scarce by going underground and/or becoming unavailable to the investigating agency;

i) If he attempts to place himself beyond the reach of his surety.

j) If any facts may emerge after the grant of bail which are considered unconducive to a fair trial.

The Court noted that the High Court has not taken into account the criminal antecedents of the accused. Also, the complainant had not wavered in her statments and had stuck to her version in Section 161 and 164 statements.

The Bench has issued the direction in a special leave petition challenging order of the Madhya Pradesh High Court granting bail to the accused, who has been charged for the offence punishable under Sections 376 (2) (n) and 506 of I.P.C and was arrested 29th September 2021.

The bench was on an earlier occasion informed that banners with statement "Bhaiya is Back" were put up after the accused was released on bail. The bench had then asked for a response from the accused regarding the same.

The court was informed by Senior Advocate Sidharth Luthra appearing for the accused that the poster was put up almost 3 months after the impugned order granting bail was passed

The Bench was informed that the poster along with the photograph of the answering Respondent accused sends out wishes of an annual festival namely "Maa Narmada Jayanti" which is celebrated ever year in February as per the Hindu Calendar, and the accused being a student leader belongs to the community engaged in the prayer for "Maa Narmada Jayanti".

It was submitted on behalf of the respondent accused that the social media posts containing photographs of certain posters/ comments shared on media post showing the name and picture of accused placed on record by the petitioner are not contemporaneous to his release . Further the poster does not demonstrate any violations of the bail conditions.

It was further submitted that the accused is a student leader and a fifth year law student. He argued that the present case is one of a consensual relationship, and once things broke down between him and the petitioner girl when discovered her relationship with someone else. He submitted that the accused can also offer to stay outside the State.

The Counsel appearing for the State of Madhya Pradesh had submitted that the State is supporting the petitioner's case. The counsel informed that court that 6 other cases are pending against against the accused.

Advocate Shikha Khurana and Advocate Vaibhav Manu Srivastava appearing for the petitioner had opposed the submissions made by the accused that the posts and hoardings were not put by them.

Referring to the alleged social media posts put by the accused, Advocate Khurana submitted that he had added specific music, the song ' Baap ka maal' with this post which only shows the arrogance and attitude of the accused.

She had further argued that the hoardings were strategically put between petitioner's residence and her father's workplace to intimidate the petitioner and her family.

The allegation against the accused is that he repeatedly committed sexual intercourse with the prosecutrix on various occasions over a period of three years under the garb of false promise to marry with her.

Case Title: Ms P vs State of Madhya Pradesh

Citation : 2022 LiveLaw (SC) 448

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