A bench of Justices M R Shah and Hima Kohli observed the high court has failed to appreciate the allegations in the FIR that immediately on the occurrence, when the woman regained consciousness, she first went to the hospital and thereafter, tried to lodge the FIR but no complaint was taken.
“In a case like this, the high court has not properly appreciated the fact that there could have been some delay (though in the present case, it may not be said that there was any inordinate delay in lodging the FIR) as sometime could have been consumed for the victim/prosecutrix to get out of the shock. Even the said aspect is required to be considered at the time of the trial,” the bench said in its judgement.
The apex court delivered the verdict on an appeal filed by the complainant challenging the high court judgement releasing the accused on bail in connection with an FIR lodged for alleged offences, including that of rape.
The top court observed that even otherwise, from the reasoning given, it appeared that the high court has not at all considered the seriousness of the allegations and the gravity of the offences alleged against the accused.
It noted that charge sheet has already been filed in the case.
“So, whatever material has been collected during the investigation was required to be considered by the high court while considering the application under section 439 of CrPC,” the bench said.
Section 439 of the Code of Criminal Procedure (CrPC) deals with special powers of the high court or sessions court regarding bail.
“In view of the above and for the reasons stated above, the present appeal succeeds. The impugned judgment and order passed by the high court releasing respondent no. 2 – accused on bail, deserves to be quashed and set aside and is accordingly quashed and set aside,” the apex court said.
It remitted the matter to the high court to decide the bail application afresh in accordance with law and on its own merits after perusing the material or evidence collected during the investigation which are now part of the charge sheet.
It directed the accused to surrender before the concerned court or jail authority within a week. PTI ABA ABA TIR TIR