A Dangerous Precedent For Denial Of Bail In Cases Involving Sexual Offences

In a recent case of 'X v. State of Rajasthan,'^[2] the Supreme Court observed that courts should refrain from entertaining bail applications in serious offences such as rape, murder, dacoity once the trial has commenced.

The case involved a petition filed by the prosecutrix challenging the High Court of Rajasthan's (“High Court”) decision to grant bail to the accused. The accused was charged under Section 376-D and Section 342 of the Indian Penal Code, 1860 (“IPC”). Relying on an earlier order granting bail to a co-accused as well as noting certain discrepancies in the prosecutrix's statement recorded under Section 164 of Criminal Procedure Code, 1973 (“CrPC”) vis-à-vis FIR and statement recorded under Section 161 CrPC, the High Court subsequently granted bail to the accused. The High Court further observed that the trial was likely to take a significant amount of time to conclude, justifying the decision to grant bail.

While refraining from overturning the High Court's order, the Supreme Court observed that the High Court erred in granting bail to the accused, as appreciating the victim's testimony at the stage of bail would have an impact on the pending trial. The Court criticized the practice of granting bail after framing of charges or based on discrepancies in the victim's testimony, deeming these practices inappropriate. The Court further appeared to restrict the right to be released on bail in such cases to instances where the trial is unduly delayed for no fault on the part of the accused, i.e., on the ground that right of the accused to have a speedy trial has been infringed.

The observations of the Supreme Court can have far-reaching implications for the rights of the persons seeking bail in similar cases. Indian courts typically consider factors such as the nature and gravity of the charges and the severity of punishment in the event of conviction while deciding bail applications.^[3] Consequently, courts are often reluctant to grant bail in heinous offences like rape, murder and dacoity, where conviction carry penalties ranging from a minimum of 10 years of imprisonment to life sentences.^[4]

As a general practice, in cases involving sexual offences under the IPC or the Protection of Children from Sexual Offence Act, 2012 (“POCSO”), courts are usually hesitant to grant bail until the victim's testimony is recorded before the court. This is in line with a well-settled principle of law that conviction can be sustained on the sole testimony of the prosecutrix if it inspires confidence^[5] and that corroboration is not a sine qua non for conviction in such cases.^[6] Moreover, this practice aims to protect victims from intimidation or psychological distress that might result from accused's release prior to their deposition in court.^[7]

An inevitable fallout of such an approach is that there is an extremely high threshold for granting bail in such cases which often results in accused persons spending years in custody before securing bail. For example, in a recent case before the Delhi High Court, an accused person remained in custody for seven years before the victim's testimony was recorded, which ultimately lacked corroboration by eyewitnesses.^[8]

In this context, there arises a genuine apprehension that the Supreme Court's observations, however well meaning, may prolong custody period for accused persons as it seeks to further push the stage for consideration of bail from recording the statement of the victim to the conclusion of the trial. This approach significantly restricts the accused's right to seek bail until the trial is complete, undermining the provisions for bail under the CrPC and BNSS.^[9] Such an interpretation contradicts the established dictum that bail is the rule, and jail is the exception.^[10]

To put it simply, as things stand, in cases involving sexual offences, courts are extremely reluctant to consider grant of bail prior to recording of the prosecutrix's evidence. The effect of the Supreme Court's observations discouraging any consideration of bail once evidence has commenced is likely to lead to persons spending years in custody awaiting conclusion of trial, which may ultimately lead to their acquittal.

There is no gainsaying that the victim's testimony in sexual offence cases is often a crucial piece of evidence. Therefore, it can be argued that if the victim's statement contains discrepancies – such as inconsistencies Section 161 and Section 164 CrPC statements – court should take proactive steps to safeguard the liberty of the accused, as the most crucial piece of evidence in the trial is untrustworthy. Furthermore, false allegations arising from family pressure or soured relationships are not uncommon in India, making it even more critical for the courts to ensure that individuals are not left languishing in jail due to the restrictions placed by the observations of the Supreme Court.^[11]

More crucially, the Supreme Court's observations fail to take into account that Section 309 CrPC / Section 346 BNSS are practical dead letters in as much as trial courts in India do not hold day to day trials. Practically speaking, there is no chance of evidence being concluded within a short span of two months.

While the Supreme Court's observations do provide a narrow window for accused persons to seek bail in cases of undue delay in trial proceedings, the concept of “delay” is subjective, and as highlighted earlier, could translate to as long as seven years in custody before the bail is granted.

To conclude, the Court's observations on denial of bail once evidence has commenced could lead to longer periods of under-trial detention, particularly given the inefficiencies in the judicial system. Hence it would be prudent if the observations of the Supreme Court are confined to instances where the testimony of the victim is of sterling quality and inspires confidence, to avoid the risk of prolonged wrongful incarceration.

Views Are Personal. 

1. Author are advocates, practising at the Supreme Court and High Court of Delhi. 

2. Judgment dated 27.11.2024 in SLP (Crl) No. 13378 of 2024 ↑

3. Prahlad Singh Bhati v. NCT, Delhi & Anr. (2001) 4 SCC 280 [Para 8], Prasanta Kumar Sarkar v. Ashis Chatterjee & Anr. (2010) 14 SCC 496 [Para 9] & Manik Madhukar Sarve & Ors. v. Vitthal Damuji Meher & Ors. [Paras 18 & 19] ↑

4. Ram Govind Upadhyay v. Sudarshan Singh & Ors. (2002) 3 SCC 598 [Para 3] ↑

5. Rameshwar v. State of Rajasthan 1951 SCC 1213 [Para 18], State of Rajasthan v. N.K (2000) 5 SCC 30 [Para 11], and State of Himachal Pradesh v. Manga Singh (2019) 16 SCC 759 [Paras 10 & 12] ↑

6. Ganesan v. State (2020) 10 SCC 573 [Paras 10.1 to 10.3] & State of Himachal Pradesh v. Manga Singh (2019) 16 SCC 759 [Para 11] ↑

7. Anup Bhengra v. State Govt. of NCT of Delhi 2024 SCC OnLine Del 1417 [Para 11] ↑

8. Mohd. Afroz v. State (NCT of Delhi) [Bail Appl. No. 2240 of 2024] ↑

9. The successor of CrPC, Bharatiya Nagarik Surakha Sanhita, 2023 (“BNSS”) ↑

10. Sanjay Chandra v. Central Bureau of Investigation (2021) 1 SCC 40 [Para 27 and 28] ↑

11. See, “Delhi High expresses worry over 'alarming increase' of false rape cases”, dated 22.08.2021, accessible through this link: https://www.thehindu.com/news/national/delhi-high-court-expresses-worry-over-alarming-increase-of-false-rape-cases/article36042093.ece, and also, Does India have a problem with false rape claims? - BBC News ↑