Bombay High Court: In the present application, the State had sought recall of the order passed by the Additional Sessions Judge at Dindoshi, wherein the Sessions Court had enlarged the accused, who was alleged to have committed the offence of gang rape, on bail, subject to the ground that his marriage was scheduled in the near future.
A Single Judge Bench of Dr. Neela Gokhale, J., while cancelling the bail, held that the offence was that of gang rape and that the alleged acts attributed to the accused were heinous in nature. Considering the totality of the circumstances, the Court was satisfied that the Trial Court had ignored the relevant material available on record and had failed to consider the gravity of the offence.
Background:
The case arose from an application filed by the State seeking cancellation of the bail granted by the Additional Sessions Judge, Dindoshi, to an accused in a gang-rape case. The bail had been granted on the grounds that the accused’s marriage was imminent and that no injuries were found on the victim’s private parts.
According to the prosecution, the victim, a young woman, went to a flat accompanied by one of the co-accused, whom she knew. At the flat, which was rented by the accused, she was allegedly given a spiked drink, assaulted, disrobed, and raped by three persons. The victim stated that her mobile phone was taken away, her hands were tied, and she was physically injured. She narrated the incident in her First Information Report (‘FIR’) and later confirmed it in her statement recorded under Section 164 of the Criminal Procedure Code, 1973 (‘CrPC’), in which she described head injuries and other marks of violence.
An intervention application was also filed on behalf of the victim, seeking permission to intervene in the matter and advance submissions. Consequently, the Court considered the request and allowed the intervention.
The State submitted the chargesheet and supplementary charge-sheet, arguing that despite the evidence and the statutory minimum punishment of 20 years for the offence, the Trial Court erred in granting bail to the accused. The intervenor supported the State’s position and asserted that the common intention to commit gang rape was evident from the conduct of all three accused.
In response, the accused defended the bail order, pointing to discrepancies between the FIR and the victim’s Section 164 CrPC statement, alleging improvement in her account. He also noted a timing inconsistency between her phone call and CCTV footage, and supported the Trial Court’s decision, praying for rejection of the application.
Analysis and Decision:
The Court emphasised that upon taking into account the entirety of the case, the impugned order required intercession. The Court observed that a plain reading of the order revealed that the accused had been enlarged on bail without examining all material aspects placed by the prosecution before the Trial Court through the filing of the chargesheet and the supplementary chargesheet.
The Court highlighted that it had examined the FIR as well as the statement of the victim recorded under Section 164 of CrPC, wherein she had narrated the entire sordid ordeal faced by her at the hands of the three accused in the criminal case. The Court noted that a plain reading of both the FIR and the Section 164 CrPC statement clearly revealed that although the victim had gone to the said flat voluntarily with her friend, accompanied by the accused, she was given a spiked drink. Thereafter, she was taken to the bathroom and beaten up by her friend, causing her to fall and bang her head on the commode. Subsequently, she was disrobed, brought to the bed, her hands were tied, her mobile phone was taken away, and she was brutally raped by all three accused.
The Court emphasised that the Section 164 CrPC statement was consistent with the averments made in the FIR. The Court further highlighted that the medical report indicated an injury on the left side of her head and moreover, the findings of the doctor demonstrated evidence of physical violence, including the head injury, scratch marks, and other injuries found on her person. Additionally, the Court noted that the statement of the victim’s uncle corroborated the account given by the victim.
The Court observed that the Trial Court had taken into account only two aspects while granting bail. Firstly, it noted that there were no injuries on the private part of the victim, albeit the Trial Judge had recorded injuries on her person as reflected in the medical report. Secondly, the Trial Court appeared to have been influenced by the fact that the marriage of the Accused was scheduled in the near future.
Further, the Court noted that the State had insisted that, even if that ground was considered tenable, it was a misleading statement, as no marriage of the accused had been solemnised till date. Nevertheless, the fact that the Trial Court had considered this as a parameter for the grant of bail was found to be troubling.
The Court emphasised that the accused had been arrested on 09-12-2024 and was released on bail on 24-02-2025, i.e., within a period of two and a half months from the date of arrest, on the ground that his marriage was scheduled in March 2025, despite all the material on record prima facie indicting him. Furthermore, the Court highlighted that the offence was that of gang rape and the alleged acts attributed to the accused were heinous in nature. Considering the totality of the circumstances, the Court was satisfied that the Trial Court had ignored the relevant material available on record and failed to consider the gravity of the offence.
The Court opined that the statute, as well as a series of decisions of the Supreme Court and various High Courts, had well settled the parameters for the grant of bail to an undertrial however impending marriage of an accused was not one of them.
The Court, therefore, while disposing of the application, set aside the impugned order and cancelled the bail granted to the accused. The Court further directed the accused to surrender before the Investigating Officer within two days from the date of uploading of the order.
[State of Maharashtra v. XYZ, Criminal Application No. 367 of 2025, decided on 30-09-2025]
Advocates who appeared in this case:
For the State: Megha S. Bajoria, APP
For the Accused: Shlok Saraogi
For the Intervenor: Shivamsinh Deshmukh with Tarun Shetty
Buy Code of Criminal Procedure, 1973 HERE
