This matter arises out of suo motu court action in calling upon the two respondents as to why their applications for their release on bail be not rejected. They are accused of offences under Sections 366/376/342/506/34, Indian Penal Code. By two separate orders the learned Additional Sessions Judge had released both the respondents on bail. The order of this Court issuing show cause notice is dated 21 November 1992 and it is appropriate to set out that order in full showing the circumstances as to why the court thought it fit to take suo motu action :-
"It appeared in the national newspapers that the respondent Vishnu Pandit had been arrested for having allegedly committed rape on a 35 year old wife of an accountant working in D.D.A. His driver Baljeet was also taken into custody by the police. The allegations were that the woman was raped twice by Vishnu Pandit, first in front of her 15 years old son and at that time when Vishnu Pandit was molesting the woman his driver Baljeet kept a pistol on son's head. This was on 9 November 1992. Vishnu Pandit again committed rape on that woman on 11 November 1992 in front of her husband. The police version as given in the newspapers was that Vishnu Pandit first struck an acquaintance with the woman in a nursing home when she had come to see her ailing mother-in-law. He met the woman and her son outside the nursing home and on the pretext of giving them a lift to their house in his Maruti van he took them to his office in Dilshad Garden and committed rape on the woman. Yet further two days later he again took up that woman when at that time she was accompanied with her husband and again she was raped by Vishnu Pandit at the same spot.
Both Vishnu Pandit and his driver Baljeet have since been released on bail under the orders of Mr. B. S. Chaudhary, Additional Sessions Judge, Shahdara Delhi. The order of bail in the case of Baljeet was passed on 16 November 1992 and in the case of Vishnu Pandit on 18 November 1992. I sent for the records granting bail to both Vishnu Pandit and Baljeet. The accused are accused of having committed offences under sections 366/376/342/506/34, I.P.C. These are all cognisable offences and non-bailable. In the case of an offence under section 376 sentence can be imprisonment for life.
The impugned order in the case of Vishnu Pandit would show that the woman who has been raped is Kamlesh Arya and the order records that she argued her case for about 20 minutes without fear. This fearlessness on her part appears to be a circumstance which has gone against her. The order would show as if the learned Additional Sessions Judge has already disbelieved the version of the lady though yet he remarked "without going into the merits of the case, lest it may prejudice to the either party later on, I feel the totality of the circumstances of the matter and the facts as brought by the prosecution uptill now are convincing to the extent that the case for bail of the accused is made out." But I hardly find any justification for the learned Additional Sessions Judge to come to this conclusion.
As noted above, accused Baljeet is also accused of offences under same sections of Indian Penal Code. As to what role had been assigned to him by the prosecution the order releasing him on bail is silent. The whole of the order reads as under :-
"In view of the role assigned to the petitioner, and that he is stated to be driver and as per submission he remained outside the room throughout. In view of the circumstances, petitioner is admitted to bail on furnishing a bond in the sum of Rs. 5,000/- with one surety in the like amount to the satisfaction of the court concerned."
Considering the gravity of the offence and the dreadful manner in which it was committed the learned Additional Sessions Judge has not examined the possibility of the accused terrorising the witnesses. We cannot think of a more depraved act against the dignity of a woman and the approach of the learned Additional Sessions Judge in granting bail to the accused does not appear to be sound and it is rather casual and cavalier. The impugned orders do not record as to what version of the prosecution is and what investigation has so far been conducted. Prima facie it appears to me judicial discretion in the present case has not been properly exercised and the impugned orders granting bail to the accused are not legal. I, therefore, in exercise of powers conferred upon this Court under section 482 of the Code of Criminal Procedure and all other powers enabling in that behalf would stay the operation of the orders granting bail to the accused and would call upon them to show cause as to why their applications for their release on bail be not rejected. The result of stay of operation of the impugned orders is that the accused are to be taken into custody. Let non-bailable warrants issue against them for their appearance in Court on 23 November 1992. Notice will also issue to the Standing Counsel (Criminal), Delhi, Administration, for the same date."
2. In pursuance to the notices the respondents did appear and were represented by their respective counsel. Arguments could not be heard earlier as time and again they have been asking for adjournment on the ground that the lawyers of Delhi High Court Bar Association were abstaining from appearing in court. Thus, if there is any delay on this account in disposing of the show cause notice the respondents are to blame themselves or their counsel.
3. A great deal of arguments have been addressed by the respondents as if I have been holding a trial which has concluded. I told counsel for all the parties that I will consider the record of investigation only up to the stage when the learned Additional Sessions Judge passed the two impugned orders releasing the respondents on bail to see the validity of those orders. Both Mr. Sharma and Mr. Mathur said that was a right approach. Mr. Sud, however, said that since the investigation in the case was almost complete this court could nevertheless go into all the material so far collected and pass orders releasing the respondents on bail even if it could be said that the earlier orders of the learned Additional Sessions Judge were not valid. I do not think I should be doing that. The accused have right to move for bail as per the Code again and again if subsequent circumstances so demand. They will be at liberty to move the appropriate court for the purpose.
4. While examining the case I have to be cautious that I do not pre-judge the evidence which is yet to come on record and this foreclose the criminal trial. The order which I am making is without prejudice to the rights of the respondents to move the court concerned now or at any subsequent stage praying for their release on bail. Before me the question is if the learned Additional Sessions Judge was legally correct in releasing the respondents on bail as per the record then existing. This order, therefore, cannot come in the way of any court exercising power to release the respondents on bail taking into account events subsequent to the stage of the impugned orders.
5. As to what was the version of the prosecution at the time when the applications for bail in the present case came up for consideration can best be illustrated by the report dated 16 November 1992 filed in the court of the learned Additional Sessions Judge in the case of Vishnu Pandit. This report is not on the record of the court which I had sent for, but a photo copy of the same was produced before me by Mr. D. C. Mathur, learned counsel for Vishnu Pandit. There is no dispute that such a report was submitted in the court. This report reads as under :-
It is most respectfully submitted that on 12-11-1992 Smt. Kamlesh Arya lodged complaint that her mother-in-law was admitted in the Gita Gupta Nursing Home since 30-9-1992 and they had dispute with the Manager over the payment of Hospital Bill. One Vishnu Pandit had also come in the Nursing Home to see his patient. He assured them that he would settle the matter and took her and her husband Swami Raj into confidence. On 9-11-1992 Smt. Kamlesh Arya with her son Kailash aged about 13/14 years had come at the Nursing Home. When she was about to leave at 11 p.m. Vishnu Pandit and his driver (who had been identified as Baljeet) was present with the Maruti Van and suggested them that he would leave them at her residence. She along with her son accompanied them. Both the accused took her and her son to Vishnu Pandit's office. When she objected, they threatened that they would kill her son Kailash. Kailash was coerced by the driver who threatened him with a revolver. Vishnu committed rape with her. They again threatened them to keep mum otherwise they would kill them and let them go. On 11-11-1992 Smt. Kamlesh with her husband Swami Raj had visited the Nursing Home. At about 12 mid night Smt. Arya saw that her husband had gone out and Vishnu Pandit and Baljeet had offered him seat in their car. She came out hurriedly to ask her husband not to sit in their car, Vishnu and Baljeet forcibly pushed her inside the car and took them to their Jaina Building office. They threatened both of them to remain silent and took both of them to the rear room where Vishnu compelled her to take off her clothes before her husband. He kept them overnight and encroached her modesty. In the morning, when he was committing sexual intercourse, Swami Raj ran away and informed a passing P.C.R. Van. Vishnu Pandit and his driver Baljeet fled away from the scene before the police arrived there. Accused Vishnu Pandit crossed all the limits of humanity and acted like wild animal. This is not the first instance but he is having history of criminal records. He is involved (in) at least 9 such cases which include violence, extortion criminal intimidation and trespass. He is so desparate that none of the witnesses courage to depose against him. Keeping in view the seriousness of the present offence, previous record of the applicant accused Vishnu Dutt (Pandit) it is requested that he must not be granted bail. The case is yet pending investigation and his presence outside the jail would affect the investigation adversely as he would threaten the witnesses.
6. In the context of this report and the police file which was produced before the court of the learned Additional Sessions Judge on 16 November, 1992 and 18 November 1992 it does appear to me that without examining the facts in proper perspective the learned Additional Sessions Judge went on to find loopholes in the version of the prosecution when none existed at that time. What made the version of the prosecution so improbable which made the learned Additional Sessions Judge to make certain observations, I am unable to fathom. He held as under :-
(1) The complainant did not raise even a little finger nor her son who is a grown up boy even at the night of 9-11-1992, throughout the day on 10-11-1992 and again throughout the day on 11-11-1992 to tell anybody, even to the husband of the complainant, regarding previous night incident;
(2) Even, on the next evening the complainant accompanied the accused along with her husband. These complainant and her husband were the two persons in the vehicle whereas the accused was one and the driver is supposed to drive the vehicle. So no alarm was raised throughout and both of them gently entered the Jaina building. According to prosecution story, the husband of the complainant came out of the said Jaina building early in the morning even, the report could be lodged as delayed as at 8.30 a.m.
(This is the best I can make out from the para in the impugned order).
(3) The complainant is a grown up lady of 35 years and she is having four children. She appeared in the court today. She argued her case for about 20 minutes without fear.
Yet the learned Additional Sessions Judge remarked that he will not go into the merit of the controversy at that stage when in fact he did so and did not at all refer to the prosecution version and to the statements of witnesses recorded under S. 161 of the Act and the material evidence collected. As regards driver Baljeet, the learned Additional Sessions Judge said in view of role assigned to him and the fact that he was a mere driver and as per submission remained outside the room throughout, he would grant him bail ! What the prosecution alleged as to the part played by Baljeet in perpetrating the crime as mentioned above, the impugned order is silent.
7. The reasons for granting bail to the respondents are quite shocking. They are accused of serious offences under sections 366/376/342/506/34, I.P.C. I do not think it will be appropriate for me to comment on the evidence as its value will have to be tested during the course of the trial. It was, however, asserted before me with great deal of vehemence that the story given by the complainant was impossible to believe and was incredible and that the respondents had been roped in a false case to blackmail them or to satisfy some one's political vendetta. Nothing on the record as then existed suggested such a thing. An accused cannot be said to be in such a privileged position that he can make all sorts of allegations. In Aher Raja Khima v. State of Saurashtra, AIR 1956 SC 217 : (1956 Cri LJ 421), the Supreme Court (Vivian Bose, J.) said as under (para 9) :-
"There are two important factors in every criminal trial that weigh heavily in favour of an accused person; one is that the accused is entitled to the benefit of every reasonable doubt and the other, an off-shoot of the same principle, that when an accused person offers a reasonable explanation of his conduct, then, even though he cannot prove his assertions, they should ordinarily be accepted unless the circumstances indicate that they are false."
That, of course, the trial of the accused would tell.
8. It is contended that court should be liberal in granting bail and the accused has a right to bail under Art. 21 of the Constitution which provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. The question of grant of bail to the accused depends upon the facts and circumstances of each case and the factors which the court would take into consideration in a given case cannot be put into straight jacket, but some of these have been spelled out by the apex court which I will personally refer to. If Art. 21 gives right of liberty to the accused, it at the same time protects a woman so that she can live with dignity and honour.
9. An argument was raised that an order granting or refusing bail is an interlocutory order and as such no revision lies of such an order. In this connection reference has been made to a decision of the Supreme Court in Usmanbhai Dawoodbhai Memon v. State of Gujarat, (1988) 1 JT (SC) 539 : (1988 Cri LJ 938), and to the provisions of sub-sec. (2) of S. 397 of the Code. Relevant provisions of S. 397 are as follows :-
"397. Calling for records to exercise of powers of revision - (1) The High Court or any Sessions Judge may call for and examine the record of any proceedings before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.
(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceedings.
10. Section 401 of the Code gives High Court powers of revision and is as follows :-
"401. High Court's powers of revision. - (1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or on a Court of Session by Section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by S. 392.
(2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own conviction.
(3) to (5) .........................................................."
11. Then my attention has also been drawn to the provisions of Sections 386, 389, 390 and 391 of the Code. These respectively deal with powers of the Appellate Court, suspension of sentence pending the appeal; release of appellant on bail, arrest of accused in appeal from acquittal, and Appellate Court may take further evidence or direct it to be taken.
12. In Usmanbhai's case (1988 Cri LJ 938) (SC) one of the questions before the Supreme Court was as to the jurisdiction and power of the High Court to grant bail under section 439 of the Code or by recourse to its inherent powers under section 482 to a person held in custody and accused of an offence under sections 3 and 4 of the Terrorist & Disruptive Activities (Prevention) Act, 1987. The court accepted the contention advanced by the State Government that the Act being a special Act must prevail in respect of the jurisdiction and power of the High Court to entertain an application for bail under section 439 of the Code or by recourse to its inherent powers under section 482. Another argument raised was that the orders passed by the designated courts refusing to grant bail were not interlocutory orders and, therefore, appealable under section 19(1) of the TADA, but the court did not accept the same. The court was interpreting the words "not being in interlocutory order" used in Section 19(1) of the TADA and said that the court must interpret the words not being an interlocutory order used in Section 19(1) in their natural sense in furtherance of the object and purpose of the Act to exclude any interference with the proceedings before a Designated Court at an intermediate stage. There is no finality attached to an order of a Designated Court granting or refusing bail. Such an application for bail can always be renewed from time to time. It was in this context, therefore, that the Court said that it could not be doubted that the grant or refusal of a bail application is essentially an interlocutory order and there is no finality to such an order for an application for bail can always be renewed from time to time.
13. In yet another case The Janata Dal v. H. S. Chowdhary, (1992) 5 JT (SC) 213 : (1993 AIR SCW 248) the Supreme Court considered the revisional and inherent powers of the High Court. In this case a single Judge of the High Court exercising suo motu powers under Sections 190, 397, 401 and 482 of the Code proposed to quash the F.I.R. and other connected proceedings thereof and observed that it was wholly unjustified. The Court said that the inherent power under Section 482 of the Code could be exercised by the High Court (1) to give effect to any order passed under the Code; or (2) to prevent abuse of the process of any Court; or (3) otherwise to secure the ends of justice. It also said that the inherent power conferred by Section 482 of the Code should not be exercised to stifle a legitimate prosecution.
14. In my view Section 439(2) of the Code which empowers a High Court or Court of Sessions to direct that any person who has been released on bail under Chapter XXXIII of the Code (containing provisions as to bail and bonds, sections 436 to 450) be arrested and commit him to custody is independent of Section 397 and bar of sub-section (2) of Section 397 is inapplicable. That being so, power to suspend which is ancillary to power to cancel is inherent in the High Court and can be exercised under section 482 of the Code. I have not come cross any case and none has been cited before me where any aggrieved party has come to High Court under section 397 on refusal of grant of bail by a subordinate court. The power which I have exercised in issuing notices to the respondents while at the same time staying operation of the orders of the learned Additional Sessions Judge releasing him on bail can also be relatable to Article 227 of the Constitution giving the source of power to the High Court in that regard. Clause (1) of Article 227 provides that every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. To my mind, no law made by Parliament or State Legislature can whittle down the powers conferred by Article 227 on the High Court. I am fortified in my view by decisions of two different High Courts.
15. In State of Maharashtra v. Tukaram Shiv Patil, 1977 Cri LJ 394, a Division Bench of the Bombay High Court held that the High Court and even the Sessions Court had powers to cancel the bail granted earlier 'pending the trial of investigation under section 439(2), and that the High Court can further cancel it in exercise of its inherent jurisdiction under section 482 apart from the power under Article 227 of the Constitution.
16. A learned single Judge of the Allahabad High Court in Rameshwar Prasad v. State, 1975 Cri LJ 658, also took the same view. He said that the High Court in exercise of power under section 482 of the Code could stay the operation of a bail order where it found it was necessary to do so to prevent abuse of the process of the Court or to meet the ends of justice. The learned single Judge also observed that Section 439(2) only empowered a Sessions Judge to direct any person who had been released on bail to be arrested and committed to custody, and that this provision contemplated a final order which was popularly called as cancelling bail. It was urged before the court that Sessions Judge has no power under the law to stay operation of the bail order passed by the Chief Judicial Magistrate.
17. Let me now refer to some other judgments cited at the bar as to the nature of offence of rape, etc., the corroboration required and the principles to be kept in view while granting bail.
18. In Shahzad Hasan Khan v. Ishtiaq Hasan Khan, AIR 1987 SC 1613 : (1987 Cri LJ 1872) the accused was involved in a case of murder which took place in broad day light and to which there were eye-witnesses. He was granted bail on the ground that there was delay in trial and a citizen's liberty was involved. The Court found that the accused persons had obtained adjournment after adjournment on one pretext or the other and they did not allow the court to proceed with the trial and there were also serious allegations of tampering of evidence on behalf of the accused persons. The Supreme Court set aside the order granting bail. The Court observed that the High Court proceeded to grant bail simply on the ground that the liberty of a citizen was involved which was the case in every criminal case more particularly in a murder case where a citizen who let alone losing liberty had lost his very life. The Court observed as under (Para 6) :-
"No doubt liberty of a citizen must be zealously safeguarded by court. Liberty is to be secured through process of law, which is administered keeping in mind the interests of the accused, the near and dear of the victim who lost his life and who feel helpless and believe that there is no justice in the world as also the collective interest of the community so that parties do not lose faith in the institution and indulge in private retribution. Learned Judge was unduly influenced by the concept of liberty, disregarding the facts of the case."
19. The Court also observed (Para 7) :-
"One of the salutary principle in granting bail is that the court should be satisfied that the accused being enlarged on bail will not be in a position to tamper with the evidence. When allegations of tampering of evidence are made, it is the duty of the court to satisfy itself whether those allegations have basis (they can seldom be proved by concrete evidence) and if the allegations are not found to be concocted it would not be a proper exercise of jurisdiction in enlarging the accused on bail. In the instant case there were serious allegations but the learned Judge did not either consider or test the same."
The court said that in view of the facts and circumstances of the case the respondent was not entitled to bail if the seriousness of the matter was realised and a judicious approach was made.
20. Decision of the Supreme Court in Pratap Misra v. State of Orissa, AIR 1977 SC 1307 : (1977 Cri LJ 817), was rendered in an appeal when the appellant Pratap Misra had been convicted and sentenced for offences under sections 376/452/442/313 I.P.C. The court dealt with the question of evidence of proof in a case of a prosecutrix who was grown up and experienced pregnant lady. The allegations were that the three accused including the appellant had forcible and violent sexual intercourse with her one after the other in quick succession resulting in her abortion four or five days thereafter. The court said that the absence of any injuries either on the accused or the prosecutrix clearly showed that she did not put up any resistance to the alleged rape committed by the accused and inference could be that she was a consenting party. This judgment, to my mind, is not relevant for my purposes.
21. In Ashok Kumar v. Dev Raj alias Deva, (1983) 1 Chand LR (Cri) 345, a single Judge of this Court said that for purpose of cancellation of bail, vague and general allegation of threats having been administered to the family members of the petitioner by the accused was not enough and when those allegations were the subject-matter of separate case.
22. State of Maharashtra v. Nainmal Punjaji Shah, (1969) 3 SCC 904, was a case where the accused were arrested for offence under the Customs Act. Apprehension was expressed by the prosecution that the accused if released on bail would tamper with the evidence, or would abscond and leave India. Chief Presidency Magistrate, Bombay, however, granted bail. State filed revision and the High Court modified the order of bail in certain respects imposing certain conditions. The court refused to interfere with the order of the High Court. The Court said that if could not be said with absolute certainty that the accused would leave the country and that there was no material placed before the court to show that there was reasonable apprehension that evidence would be tampered with.
23. In Abdul Mohsin Albahouth v. The State, (1985) 2 Crimes 526, a decision rendered by me, I said relying on a decision of the Supreme Court in Gurcharan Singh v. State (Delhi Administration), AIR 1978 SC 179 : (1978 Cri LJ 129), that the facts and circumstances of each case would govern the exercise of judicial discretion in granting or cancelling bail. I also set out as to what would be the overriding considerations in granting bail relying on the aforesaid judgment of the Supreme Court, and these being "the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; likelihood of the accused fleeing from justice; of repeating the offences; of jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as of its investigation. But the Court stressed that there were two paramount considerations, viz., likelihood of the accused fleeing from justice and his tampering with prosecution evidence which related to ensuring a fair trial of the case in a court of justice and that it was essential that due and proper weight should be bestowed on these two factors apart from others and that there could not be an inexorable formula in the matter of granting bail."
24. In Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, AIR 1983 SC 753 : (1983 Cri LJ 1096), which was also a case under section 376 IPC, the Supreme Court said "in the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion ? To do so is to justify the charge of male chauvinism in a male dominated society." The Court also said that it was conceivable in the western society that female may level false accusation as regards sexual molestation against a male for several reasons, and after setting out these reasons the court observed as under (Para 10) :-
"By and large these factors are not relevant to India, and the Indian conditions. Without the fear of making too wide a statement, or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted. The statement is generally true in the context of the urban as also rural society. It is also by and large true in the context of the sophisticated, not so sophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites. Because :- (1) A girl or a woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. (2) She would be conscious of the danger of being ostracized by the society or being looked down by the society including by her own family members, relatives, friends, and neighbours (3) She would have to brave the whole world. (4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered, (5) If she is unmarried, she would apprehend all it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself, (7) The fear of being taunted by others will always haunt her, (8) She would feel extremely embarrassed in relating the incident to others being overpowered by a feeling of shame on account of the upbringing in a tradition bound society where by and large sex is taboo, (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy, (10) The parents of an unmarried girl as also the husband and members of the husband's family of a married woman, would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour, (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence, (12) The reluctance to face interrogation by the investigating agency, to face the Court, to face the cross-examination by counsel for the culprit, and the risk of being disbelieved act as a deterrent."
25. This judgment was followed in another decision of the Supreme Court in Gagan Bihari Samal v. State of Orissa (1991) 3 JT (SC) 63, a case also under sections 366/376/34, I.P.C. and again observed that corroboration was not the sine qua non for a conviction in a rape case. In this case the court also applied the provisions of S. 114(A) of the Evidence Act. This section raises certain presumption as to absence of consent in certain prosecutions for rape. I will, however, not go into this question and in my opinion it will be for the trial court to examine applicability of Section 114(A) of the Evidence Act in a particular case.
26. A single Judge of this Court in Chaman Ali v. State (1992) 3 Crimes 767, again a case under S. 376, I.P.C. observed as under :
"She is a married woman. There are many constrains to a married woman before lodging the F.I.R. Hence mere delay of about 8 hours, to my mind, is no ground for granting the bail. Her faculty was crowded because of the smelling of substance and it must have taken sometime to come out of that trauma and then to inform her husband about what happened with her. Supreme Court in the case of Harpal Singh, AIR 1981 SC 361 : (1982 Cri LJ 1), held that delay of about 10 days with respect to the filing of the F.I.R. in cases of alleged rape was explained as a result of deliberation in the family whether to take the matter which involved the honour of the family to get words was held to be reasonable and could be expected as it was not a uncommon that such considerations delay action on the part of the near relations of girl who had been raped. Let us not forget that every woman in this Republic is under the protection of law and an offence committed on her cannot be treated with indifference notwithstanding any insulations or suggestions against her character. The delay by itself is no ground to grant the bail particularly her statement where she stated that she became so afraid that immediately she left the place of the petitioner for home and there she had to muster enough courage to tell this incident to her husband. I must say that for a married woman to tell her husband that rape had been committed on her must have required enough courage to do so. Moreover, the question of delay will be looked into on merits."
27. In yet another case Amar Singh v. State, (1985) 1 Crimes 749 : (1985 Cri LJ 550) another single Judge of this Court cancelled the bail of the accused, accused of an offence under S. 302, I.P.C., and had to say as under (at pp. 552-553 of Cri LJ) :-
"After hearing the learned counsel for the parties and on consideration of the facts and circumstances I must express my deep concern that there is a sort of race afoot in granting bail to the accused persons even though involved in most heinous and reprehensive crime like murder and no less a person than a Sessions Judge himself is in the front line of the move. Normally, grant of bail in a case of murder is not a rule but here I am presently faced with a case of murder wherein the learned Sessions Judge thought is proper to grant bail by just a three line order. This court is thus unable to guess what exactly influenced the learned Sessions Judge while making the order. In a case such as this normally public policy an the general state of crime of such nature should also be considerations which should weigh with the court while considering an application for bail. I, however, do not mean to suggest that this should be an inflexible rule. There may even in this category of cases be some appropriate exceptions where bail may deservedly be granted. One of the main considerations would be as to whether on the basis of the evidence and the documents on which prosecution relies it can be said that there are grounds to believe that the accused are involved in offences punishable with death or transportation for life and if there are such reasonable grounds on which the accused are likely to be charged of murder then the question of grant of bail would not arise. The reasoning of the learned Sessions Judge that it is easier to grant bail in a non-bailable offence rather than to cancel it is really strange inasmuch as he seems to be labouring under the impression that it is easy and impermissible to commit a mistake but difficult to rectify the same. I do not find this reasoning conducive to judicial health and discipline and it is going to adversely affect the administration of justice. Besides, it is bound to provide a lever to miscreants and anti-social elements to indulge in heinous crimes with impunity. This will weaken the moral fibre of the society and twist the arms of law. Indeed personal liberty is a very valuable asset but the liberty of those who are law abiding is perhaps more valuable than the liberty of those who are out to break law as they themselves are responsible for its forfeiture. Over centuries we have been dealing with such cases. Why, if I may so ask, are the persons under trial for murder offence languishing in jails for years ? The only answer to this would be that because of the demands of public policy courts are loath to enlarge such offenders on bail. That accounts for the normal practice of the courts to refuse bail for crimes of such nature. Unmerited grant of bail in murder cases can neither serve the ends of justice and law nor of the society. It would only serve the interest of some powerful interest groups. I can safely say that with the present state of our society and increase in the rate of murder we can ill afford to be so liberal. Any reckless use of discretion, therefore, in such cases, is bound to shake the confidence not only of the society as a whole but also of those who may naturally be interested in seeing the culprits getting their due."
28. It was submitted before me that Vishnu Pandit had been acquitted in all the cases which had been pending against him and mentioned in the police report. Mr. Sharma, learned Standing Counsel for Delhi Administration, said that it was because that no witness would come, forward to depose against Vishnu Pandit as mafia type terror and fear psychosis had been created by him. He submitted that it could not be said that Vishnu Pandit, who had earlier been accused of heinous crimes, had all the cases foisted on him by the police for any enmity, or for any other reason. He said Vishnu Pandit was acquitted in all these cases because of terror in the minds of the witnesses. He further said that the respondents were desperate characters and that there was every possibility of their, if released on bail, terrorising the witnesses and tampering with the evidence. Mr. Sharma ridiculed the argument that the respondents in the present case had been involved for any purpose of blackmailing and for any political vendetta.
29. Crime against women is on increase and courts have to be circumspect in granting bail to the accused persons accused of having committed heinous offences against the women.
30. After Vishnu Pandit was ordered to be released on bail on 18 November 1992 and he had not secured his bail, the complainant lodged a report with the police on the evening of that day that she had been threatened by certain persons on behalf of Vishnu Pandit. Of course, this report could not be with the learned Additional Sessions Judge at the time when he ordered release of Vishnu Pandit on bail and need not to be taken into account by me.
31. The respondents are accused of serious offences and the investigation was at the threshold when they were ordered to be released on bail. I have set out above the principles relating to an offence under S. 376, I.P.C. and also matters which a court has to take into consideration while granting bail to the accused of heinous offences. Considering all the aspects of the matter of the case I have come to the conclusion that the discretion in granting bail to both the respondents was not properly and judicially exercised by the learned Additional Sessions Judge and his impugned orders, therefore, have to be set aside. I order accordingly.
32. The respondents are already in custody. They will be at liberty to move fresh bail application seeking their release on bail if the circumstances after the date 18 November 1992 so demand. The learned Additional Sessions Judge, if moved in the matter, shall exercise his judicial discretion unmindful of this order.