MS. X versus THE STATE OF MAHARASHTRA AND ANOTHER

Citation: [2023] 2 S.C.R. 1112 · Decided: 17-03-2023 · Supreme Court of India · Bench: A.S. BOPANNA, HIMA KOHLI · Disposal: Disposed off

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2023] 2 S.C.R.
MS. X
v.
THE STATE OF MAHARASHTRA AND ANOTHER
(Criminal Appeals Nos. 822-823 of 2023)
MARCH 17, 2023
[A. S. BOPANNA AND HIMA KOHLI, JJ.]
Code of Criminal Procedure, 1973 – ss. 437,438 and 439 –
Penal Code, 1860 – ss. 354,354-B, 376 and 506 – Anticipatory
bail – Cancellation of – A complaint filed by the appellant-
prosecutrix, against the respondent No.2-accused, who lured her
under the garb of offering some modelling assignments, raped her
in a hotel room where she was staying – Initially, the FIR was
registered u/ss. 354, 354-B and 506 of the IPC, and later, on the
supplementary statement of the appellant being recorded, the offence
u/s.376 was added to the FIR – The High Court granted anticipatory
bail to the respondent No. 2 on the grounds that the appellant had
improved her statement – On appeal, held: The nature and gravity
of the alleged offence and the financial stature, position and
standing of the accused vis-à-vis the appellant was disregarded
and ignored by the High Court – There was sufficient material in
the FIR that would prima facie attract the provision of s. 376, IPC –
Despite the appellant having filed an application for intervention
in the petition for anticipatory bail moved by the Respondent No.2
before the High Court, she was not afforded a hearing – There is
no other witness except for the appellant herself, High Court should
have granted opportunity of hearing – Grant of anticipatory bail
cannot be sustained – Order of the High Court quashed and set
aside.
Disposing of the appeals, the Court
Held: 1. The nature and gravity of the alleged offence has
been disregarded. So has the financial stature, position and
standing of the accused vis-à-vis the appellant/prosecutrix been
ignored. The High Court has granted anticipatory bail in favour
of the respondent No. 2/accused in a brief order of three
paragraphs, having been swayed by the “star variations in the
narration of the prosecutrix” implying thereby that what was
[2023] 2 S.C.R. 1112
1112
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originally recorded in the FIR, did not make out an offence of
rape, as defined in Section 375 IPC, which is an erroneous
assumption. Even if the first Supplementary statement of the
appellant/prosecutrix recorded in the evening hours of 6th August,
2022, the date on which the FIR had been registered against the
respondent No.2/accused in the first half of the same day, her
second Supplementary statement recorded on 6th September,
2022 and the Medico-Legal Report of the doctor who had
examined the appellant/prosecutrix on 8th August, 2022, are kept
aside for a moment, this Court finds that there was still sufficient
material in the FIR that would prima facie attract the provision of
Section 376, IPC. In this Court’s opinion, these factors ought to
have dissuaded the High Court from exercising its discretion in
favour of the respondent No.2/accused for granting him
anticipatory bail. [Para 22][1131-E-G; 1132-A-B]
2. Another reason that has weighed with this Court for
interfering in the impugned orders is that despite the appellant/
prosecutrix having filed an application for intervention in the
petition for anticipatory bail moved by the respondent No.2/
accused before the High Court, she was not afforded a hearing.
At least a perusal of the second impugned order does not reflect
the said position. 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.
Such an approach tantamounts to failure to recognize the right of
the prosecutrix to participate in the criminal proceedings that
would include a right to oppose the application for anticipatory
bail moved by the accused. The appellant/prosecutrix having been
denied a meaningful hearing when the first impugned order of
anticipatory bail granted in favour of the respondent No. 2/accused
was confirmed by the second impugned order, is an additional
factor that has prevailed with this Court to interfere in the
impugned orders. [Paras 23, 25][1132-B-D; 1133-F-G]
MS. X v. THE STATE OF MAHARASHTRA AND ANOTHER
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SUPREME COURT REPORTS
[2023] 2 S.C.R.
Sushila Aggarwal and Others v. State (NCT of Delhi)
and Another (2020) 5 

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