Supreme Court
Case BriefsSupreme Court

Supreme Court: In a significant case, the Division Bench of Indira Banerjee and J.K. Maheshwari, JJ., upheld pre-arrest bail of actor-producer Vijay Babu who was alleged to have committed rape of an actress.

The Court, however, modified the bail condition that the accused can be interrogated for the next seven days i.e., from 27-06-2022 till 03-07-2022, and directed that the accused may be interrogated as and when necessary, even after 03-07-2022.

Vijay Babu was alleged to have committed rape on the victim, a struggling actress, with the promise of a role in a movie and also of marriage. He has allegedly even caused physical injuries to her. The prosecution further alleged that on coming to know about the registration of the crime, the applicant went abroad in an attempt to flee from the law.

Pertinently, by the impugned order, Single Judge of the Kerala High Court had granted pre-arrest bail to the accused by holding that there is no restriction in law that pre-arrest bail cannot be granted to a person sitting abroad; which was doubted by a co-equal Bench of the High Court. Consequently, the question as to whether pre-arrest bail can be granted to a person sitting abroad was referred to a larger Bench. Though the Supreme Court did not refer to the aforementioned question, it has upheld the grant of pre-arrest bail to the accused.

After considering the pleadings and other materials on record, the Court declined to interfere with the impugned order. The Court stated,

“We are also not inclined to interfere with the conditions imposed in the impugned order for grant of pre-arrest bail, except sub-paragraph (2) of paragraph 27 of the impugned order which reads as under:

(2) The petitioner can be interrogated for the next seven days i.e., from 27-06-2022 till 03-07-2022 (inclusive) from 09.00 AM till 06.00 PM every day, if required. The petitioner shall be deemed to be under custody during the aforesaid period for facilitating the requirements of investigation.”

Hence, the Court modified the bail condition by deleting the words “for the next seven days i.e., from 27-06-2022 till 03-07-2022 (inclusive)” and held that the accused may be interrogated as and when necessary, even after 03-07-2022.

The accused was directed to comply with all other conditions imposed by the High Court as also the conditions for grant of pre-arrest bail enumerated in Section 438(2) of the CrPC. Bail conditions affirmed by the Court are as follows:

  1. The accused shall not leave the State of Kerala without prior permission of the jurisdictional Court;
  2. shall appear before the Investigating Officer as and when called;
  3. shall not contact or interact with the victim or any of the witnesses;
  4. shall not indulge in any form of attack on the victim or her family through social media or any other mode;
  5. shall not harass, defame, denigrate or ridicule the petitioner or members of her family in any manner whatsoever or publish or post any comments, writing, picture, etc. in relation to the incident on social media or otherwise;
  6. shall not commit any other offence while on bail
  7. shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any Police officer;
  8. if the impounded passport of the accused is returned or if he is issued with a fresh passport, he shall immediately surrender the same to the Investigating Officer.

[x v. Vijay Babu, 2022 SCC OnLine SC 805, decided on 06-07-2022]


Advocates who appeared in this case :

Mr. Arjun Singh Bhati, AOR, Mr. C. K. Sasi, AOR, Advocate, for the Petitioner;

Mr. Siddharth Luthra, Sr. Adv., Mr. S. Udaya Kumar Sagar, Adv., Ms. Sweena Nair, Adv., Mr. Lakshay Saini, Adv., Ms. Anasuya Choudhury, Adv. and Mr. Angaj Gautam, Advocates, for the Respondent(s).


Also Read

Kerala High Court grants anticipatory bail to cine artist & producer Vijay Babu in a rape case

Kerala High Court| Can pre-arrest bail be granted to accused sitting abroad? Co-equal bench doubts order in Vijay Babu’s case; Larger Bench to decide


*Kamini Sharma, Editorial Assistant has put this report together

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: In a high-profile rape case that ignited controversy in the cine industry, Bechu Kurian Thomas, J., granted anticipatory bail to the cine artist and producer Vijay Babu. The Court held that there is no restriction in law that anticipatory bail cannot be granted to a person sitting abroad.

Abstaining to examine the application meticulously on facts, the Court said that the presumptions available under section 114(a) as well as under section 53(a) of the Evidence Act, 1872 in the cases of rape cannot be given undue preference at the stage of anticipatory bail and those presumptions will arise only when substantive evidence is adduced in a court of law i.e. at the stage of the trial.

Factual Matrix

Apprehending arrest in a rape case, the cine artist cum producer Vijay Babu had approached the Court with an application for anticipatory bail.

The applicant was alleged to have committed rape on the victim with the promise of marriage, he even alleged to have caused physical injuries to her. The prosecution further alleged that on coming to know about the registration of the crime, the applicant went abroad in an attempt to flee from the law.

Noticeably, the victim is a struggling actress who was promised to have a role in the applicant’s film. The prosecution alleged that the applicant had abused the trust reposed on him by the victim and exploited her by raping her on many occasions. Moreover, even during her menstrual periods, the applicant forced himself upon her, ignoring her repeated objections. Further, even after registration of the crime, the applicant was said to have come live on Facebook, where he revealed the identity of the victim, making her a laughing stock, and even threatened to prosecute her.

The prosecution contested the application for anticipatory bail alleging that the applicant had deleted the text messages from his mobile phones for the period till 31-03-2022, and the selective deletion of WhatsApp messages was crucial, considering the victim’s statement that on 16-03-2022 she was brutally raped after being forced to consume red wine.

On the contrary, the applicant argued that the accusation was only a machination of the victim who was upset on getting information that another actress was decided to be cast as a heroine. It was also pleaded that the applicant and victim had a consensual relationship, and the victim was aware that he is a married man, therefore the offences alleged were not made out at all.

Maintainability of Anticipatory Bail Application when the Applicant is Residing Abroad

The prosecution had assailed the bail application on the ground that the same had been filed when the applicant was in Dubai and the practice of filing applications for bail while sitting outside the country should not be entertained.

Considering that with the advancement in investigative technology and communication, the various agencies of investigation could even be deployed to arrest a person outside the country, the Court opined that apprehension of arrest can arise even while the applicant is residing outside the country. Relying on Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1, and Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565, wherein it was held that courts cannot read into section 438 CrPC. a restriction, which the legislature had not thought it fit to impose, the Court stated,

“When a bonafide apprehension exists, the statute confers power on such a person to seek protection from arrest. In the absence of any restrictive clauses in S.438, restricting the right of a person residing outside the country from filing an application for pre-arrest bail, Court cannot read into the provision such a restriction which the legislature did not incorporate.”

The Court relied on Souda Beevi v. S.I. of Police, 2011 SCC OnLine Ker 4242 and Shafi S.M. v. State of Kerala, 2020 SCC OnLine Ker 2928, to hold that there is no such an absolute restriction that application for anticipatory bail should not be entertained when filed from abroad, however, the Court must be convinced that the applicant is within the jurisdiction of the Court at least before the final hearing so that the conditions if any imposed, could be effectively enforced.

“Section 438 CrPC does not contain a restrictive mandate that a person residing outside the country cannot file an application for anticipatory bail.”

Therefore, the Court concluded that an application for anticipatory bail can be filed even by a person residing outside the country. However, the only limitation is that prior to the final hearing, the applicant must be inside the country to enable the court to impose and enforce conditions contemplated under the statutory provisions.

Factual Analysis

The Court opined that the nuance of ‘consent’ under the Penal Code, 1860 or of ‘rape’ is not to be deliberated upon at the anticipatory bail stage, and the Court should only consider the competing claims of liberty of an individual guaranteed under Article 21 of the Constitution as against the power of investigation of the police against a person accused of a serious crime.

Therefore, the Court must not get swayed by stereotypical notions of rape myths; i.e., chastity, resistance to rape, having visible physical injuries, behaving in a certain way, reporting the offence immediately, etc. Notwithstanding the above, care must be taken to avoid consensual relationships being converted into instances of rape.

In the backdrop of above, the Court called for the case diary and made the following observations:

  • The survivor was aware that the applicant was a married man. Therefore, the applicant being involved in a subsisting marriage, there was no possibility of a legal marriage with the survivor.

  • During the period from 16-03-2022 till 14-04-2022, the survivor was not under any form of confinement.

  • The applicant and the survivor have been communicating with each other through WhatsApp and Instagram consistently and in plenty and the available messages (from 31-03-2022 to 17-04-2022) conveyed an intense relationship between them; further those communications did not refer to any instances of sexual assault.

  • While the applicant deleted the messages from 16-03-2022 till 30-03-2022 from his phones, the survivor also deleted all messages between them, for the entire period in question.

  • Applicant had already been questioned for 38 hours and he had handed over his mobile phones to the investigating officer.

  • When the other actress had been chosen as a heroine, which came to the knowledge of the survivor after 15-04-2022 and she shouted at the applicant on 17-04-2022.

  • The applicant’s passport has already been impounded; hence he cannot flee from the country.

Conclusion

Resultantly, the Court held that the applicant ought to be given the benefit of anticipatory bail, subject to the following conditions:

  • The applicant can be interrogated for the next seven days i.e.; from 27-06-2022 till 03-07-2022 (inclusive) from 09.00 AM till 06.00 PM every day, if required to facilitate the requirements of the investigation.

  • If the Investigating Officer intends to arrest the applicant, then he shall be released on bail on executing a bond for Rs.5,00,000 with two solvent sureties for the like sum.

  • Applicant shall not contact or interact with the victim or any of the witnesses. The applicant shall not indulge in any form of attack through social media or other modes against the victim or her family.

  • Applicant shall not leave the State of Kerala without prior permission of the jurisdictional court and shall co-operate with the investigation. Further, he shall surrender his passport as and when he is issued with a fresh one or if the impounding is cancelled.

[Vijay Babu v. State of Kerala, 2022 SCC OnLine Ker 3158, decided on 22-06-2022]


Advocates who appeared in this case :

S. Rajeev, V. Vinay, M.S. Aneer and Sarath K.P., Advocates, for the Applicant;

M.R. Rajesh, Advocate, for the Victim;

Grashious Kuriakose, Addl. Director General of Prosecution, for the State.


*Kamini Sharma, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Meghalaya High Court: W. Diengdoh, J.,  has held that the ingredients that are to be seen existing in an allegation of attempt to rape is that there must be firstly an intention to commit, then preparation to commit it and thirdly, to commit it.

In the present case, the victim/complainant deposed that while she was walking home, the accused, who came in a car, offered to drop her home and he went along with her on foot. While they were walking, the appellant started nudging her and on her protest that they belong to the same family clan, he replied in the negative and grabbed her on her shoulder and put her to the ground. “The victim/complainant struggled and pushed him away to which he acknowledged and released her. Thereafter, he offered to drop her again and told her that he was just testing her because a lot of girls from the village think that he was a rapist. Thereafter, he told her not to inform to anybody about what happened and the victim proceeded home.”

The appellant was charged with an offence under Sections 376 and 511 of the Penal Code, 1860 and was sentenced with rigorous imprisonment for three years and six months and a fine of Rs 10,000 on default of payment of fine with rigorous imprisonment of another six months by the Trial Court.

The said decision was challenged on the ground that there was no material to indicate that the accused/appellant had any intention or attempted to commit any offence.

“The accused/appellant did not even touch inappropriately nor made any attempt on any part of the body of the alleged victim to either molest or rape the alleged victim. There was also no resistance on the part of the alleged victim nor did she raised any alarm on her part.”

Before proceeding to analyse the case at hand, the High Court reminded that,

“… while deciding an appeal, the High Court has the same concurrent power to appreciate the evidence on record and by extension, to come to a conclusion whether to agree with the finding of the Trial Court or to come to another view point which may be contrary to the original verdict.”

The Court relied on the Supreme Court’s judgment in Koppula Venkat Rao v. State of AP, (2004) 3 SCC 602, wherein it was held that,

“In order to find an accused guilty of an attempt with intent to commit a rape, court has to be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all events, and notwithstanding any resistance on her part. Indecent assaults are often magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events, and in spite of all resistance, materials must exist. Surrounding circumstances many times throw beacon light on that aspect.”

On appreciation of the evidence and materials on record, the High Court, hence, observed that as far as the applicability of Section 376 read with Section 511 IPC, the ingredients that are to be seen existing in an allegation of attempt to rape is that there must be firstly an intention to commit, then preparation to commit it and thirdly, to commit it.

Applying the said principle to the case at hand, the Court noticed that

“… the appellant met the victim by chance and offered to drop her to her village. Even if it is assumed that he has intention to commit the crime, there is no material to prove that he has made preparation for the same and as to the third ingredient that is, attempt to commit it, the evidence on record shows that he pushed the victim to the ground from her shoulder and after the victim struggled and pushed him away, he released her.”

Further, the appellant herein did not attempt to disrobe the victim and there is no indication that he tried to rape her and in the attempt, failed to do so after she raised a hue and cry.

The High Court was, of the opinion that the Trial Court has solely relied on the evidence of the victim without any corroboration with the supporting evidence, including the medical report, and failed to notice that no case under Section 376 read with Section 511 IPC could be made out against the appellant-accused as the same was not proved beyond reasonable doubt.

The Court relied on the judgment in the case of Tarkeshwar Sahu v. State of Bihar, (2006) 8 SCC 560 wherein the Supreme Court had elaborately discussed the essential ingredients of rape, and came to the conclusion that the crime committed by the accused was at the initial stage of preparation and hence, the offence committed does not come within the purview of offence punishable under Sections 376/511 IPC but the offence under Section 354 IPC was made out against the accused.

The Court, hence,  acquitted the accused of the charges under Section 376 read with Section 511 IPC and took recourse to Section 222 CrPC to charge the accused under Section 354 IPC sentencing him with rigorous imprisonment of one year with fine of Rs 5000 and on default of payment of fine with rigorous imprisonment of another six months. The Court ordered that the accused/appellant will serve out the sentence which will be set off with the period of conviction already undergone.[Denis Mukhim v. State of Meghalaya, 2020 SCC OnLine Megh 38, decided on 04-03-2020]


Appearance made before the Court by:

For the Petitioner/Appellant(s) : Advocates C.H. Mawlong, S.R. Lyngdoh and K.S. Kharshiing

For the Respondent(s) : S. Sengupta, Addl. Sr. PP and R. Colney, GA.

Case BriefsSupreme Court

Supreme Court: In a 20-year-old case relating to rape of a 6-year-old, the 3-judge bench of RF Nariman*, Navin Sinha and KM Joseph, JJ has dismissed the special leave petition filed by the convict, thereby rejecting the contention that since the petitioner has only one hand, it would be physically impossible to have committed an act of rape. The Court said that there is no such impossibility.

Senior Advocate R. Basant had argued before the Court that the case was made out against the convict only under Section 376(1) and not under Section 376(2), however, after perusing the charges framed, the Court noticed that the charge was not only under Section 376(1) IPC, but was under Section 376, which includes Section 376(2).

Further, there was a concurrent finding of the Court below of facts that the victim, who was only 6 years old, was raped by the petitioner. Apart from the victim’s testimony, there was also the testimony of her mother, who was an eye witness to the incident. The petitioner was over 18 years old and was found to be potent. His lungi was recovered and he himself absconded, having been captured after 15 days of the incident.

While dismissing the Special Leave Petition, the Court said,

“Considering that the State has not filed an appeal and that the incident has taken place 20 years ago, we dismiss the special leave petition, without going into Section 376(2) and whether a case is made out on facts for reducing the minimum punishment of 10 years.”

[Seelan v. Inspector of Police,  2020 SCC OnLine SC 1028, decided on 16.12.2020]


*Justice RF Nariman ahs penned this judgment. Read more about him here.

Case BriefsHigh Courts

Calcutta High Court: A Single Judge Bench comprising of Rajasekhar Mantha, J. allowed an appeal filed by the appellant against of the order of the trial court whereby he was convicted under Section 376 IPC.

The prosecution case was that the appellant had committed rape on the prosecutrix on the false pretext of marrying her. It was alleged that after the first occasion of sexual intercourse, the appellant promised to marry the prosecutrix to which she consented. Thereafter, as admitted by the prosecutrix, they remained in a love affair for 1 and half years where they cohabitated regularly. The prosecutrix had intercourse with the appellant on various occasions of her own free will. 15 days prior the complaint, they also tried to fly away but were caught by the mother of the prosecutrix. It was proved that the prosecutrix became pregnant and gave birth to appellant’s child. It was alleged that the appellant finally refused to marry her. Thus, the complaint was filed and the appellant was convicted as aforementioned.

The High Court perused the record and found that after the mother of the prosecutrix came to know about the affair on the night when the appellant and prosecutrix attempted to flee, she talked to appellant’s father. His father, however, refused to give consent to their marriage. The Court observed that the trial court ignored the fact that the prosecutrix continued to have sexual intercourse with the appellant of her own free will. It was never proved that the appellant, on the first occasion, did not intend to marry her. It was only the father of appellant who refused to accept her as the daughter-in-law. Consent of the prosecutrix for voluntary sexual intercourse, in this case, was obtained neither by fraud nor on a misconception of facts. Holding thus, the High Court set aside the order of the trial court and acquitted the appellant. The appeal was, thus, allowed. [Kalam Sk. v. State of W.B.,2018 SCC OnLine Cal 6548, decided on 20-09-2018]

Case BriefsSupreme Court

“Courts shoulder a great responsibility while trying an accused on charge of rape. They must deal with such cases with utmost sensitivity.”

Supreme Court: The Bench comprising of N.V. Ramana and Mohan M. Shantanagoudar, JJ., while addressing an appeal against the judgment and order passed by the High Court of Punjab and Haryana, allowed the said appeal on the basis that the Courts below had convicted the accused merely on “conjectures and surmises.”

The present appeal was filed by two convicts accused Jai Singh and Sham Singh, but the former had already undergone his term of sentence and had been released which left Sham Singh as the appellant. It was submitted by the victim that both the accused had forcibly taken the victim in their house and tied her hands with rope and committed “rape”. On filing of charge sheet against the accused the Lower Courts convicted both of them under Section 376(2)(g), 342 and 506 IPC.

The appellant in his submissions had placed that the material witnesses were not examined and the Courts below had ignored the material facts as well which are fatal to the case of prosecution. The appreciation of evidence by the Trial Court and the High Court has not been proper and correct.

The Supreme Court on giving due consideration to the appeal realized that it was amply clear that the case of the prosecution as made out, appears to be artificial and concocted. If the incident would have actually taken place then the medical report would have gone against the accused. The court stated that “We find that this is a case wherein incriminating materials are lacking against the accused”. Further, the Court also stated that the circumstances in this case themselves suffer from serious infirmities and lack of legal credibility to merit acceptance in the hands of the court of law. The appeal is thus allowed. [Sham Singh v. State of Haryana,2018 SCC OnLine SC 1042, decided on 21-08-2018]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of B.R. Gavai and Sarang V. Kotwal JJ., addressed a Criminal Appeal by setting aside the order of conviction and sentence in view of considering the matter in the purview of ‘benefit of doubt’.

In the present matter, the Appellant was convicted under Sections 376 (f) and 302 IPC for committing the rape of a 6-year-old child and murder thereafter. In accordance to the FIR lodged by the victim’s father. The appellant was found to be sleeping beside the deceased. The deceased was found with blood and injuries to her private parts.

While noting the facts of the case, the High Court found that the post-mortem report states the final cause of death as ‘death due to shock due to vaginal and anal tear with multiple injuries over body’. Also, the fact to be noted that was found on during the medical examination of the Appellant was that he had no injuries on his person with no blood or semen on any of the clothing of the appellant. There was no evidence of semen or vaginal fluid been taken off by washing from the private parts of the appellant.

Therefore, the case of prosecution lied only in the arena of ‘suspicion’ and the chain of circumstances against the appellant seemed to be incomplete, which awarded the appellant ‘benefit of doubt’ by acquitting the appellant in the present matter. [Sandip Ramesh Gaikwad v. State of Maharashtra,2018 SCC OnLine Bom 2067, dated 06-07-2018]

Gauhati High Court
Case BriefsHigh Courts

Gauhati High Court: A Single Judge Bench comprising of Hitesh Kumar Sarma, J., convicted the accused-appellant under Section 376(1) of the IPC, and made a correction by removing Section 8 of the POCSO Act as it was discovered by this Court that the victim was a major when the act of rape was committed upon the victim.

The brief facts of the case are that the accused/appellant had committed the offence of rape for which he was convicted by the learned Special Judge under Section 376 of the IPC combined with Section 8 of the POCSO Act. For the stated fact, an FIR was lodged and on receipt of the FIR, a case was registered under Section 376 of the IPC read with Section 8 of the Protection of Children from Sexual Offences Act, 2012. The learned Sessions Judge framed the charges against accused-appellant under Section 376 and 511 of the IPC as well as Section 8 of the POCSO Act.

The fact that the accused-appellant had committed the offence of rape on the victim who was intellectually disabled was allegedly proved from the fact that when he was asked to appear for a village meeting in which on being asked about the incident, he kept mum and therefore he was sent to jail.

However, on perusal of the records, the High Court stated that if any meeting of such manner as mentioned above was even held, the extra-judicial statements that were recorded at the meeting were all without strong corroboration and cannot be relied upon.

Therefore, the Hon’ble High Court on noting the fact that the victim was a major when the incident happened, acquitted the accused of the offence under Section 8 of POCSO Act, and upheld his conviction under Section 376 IPC on finding him guilty on the basis of the testimony of the victim. However, since the incident happened before the enforcement of Criminal (Amendment) Act, 2013, the accused was sentenced under Section 376(1) and his sentence was reduced from 10 years to 7 years. [Lila Duwarah v. State of Assam, 2018 SCC OnLine Gau 551, dated 18-05-2018]