To start with, we must first and foremost pay our unremitting attention to the glaring manner in which while ruling on a very pertinent legal point pertaining to the role of filing of chargesheet in the granting or refusal of bail, the Single Judge Bench comprising of Hon’ble Mr Justice Saurabh Banerjee of the Delhi High Court in a most learned, laudable, landmark, logical and latest judgment titled Keshav Prasad Gupta vs State NCT of Delhi in Bail Appln. 665/2023 that was pronounced as recently as on 21.11.2023 has minced just no words to state clearly in no uncertain terms that while filing of the chargesheet is a material consideration in bail matters, it is not the sole criterion and must be considered in conjunction with the facts and circumstances of the case.

It must be mentioned here that the applicant had sought regular bail in a case against him involving serious charges with which he was charged under various Sections of the Indian Penal Code (IPC), including sexual offences. It must be noted that the applicant along with two other co-accused was accused of committing heinous sexual atrocities over a period of almost two years. Of course, it cannot be glossed over which even the Court noted that the complainant made serious allegations that she was forcefully intoxicated and subjected to legal abuse. The bail application of the applicant was thus dismissed. Very rightly so!

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Saurabh Banerjee of the Delhi High Court sets the ball in motion by first and foremost putting forth aptly in para 1 that:
The applicant vide the present application under Section 439 of the Code of Criminal Procedure, 1973 [CrPC] seeks regular bail in FIR No.0566/2022 dated 03.09.2022 registered under Sections 323/328/343/ 376D/376(2)(n)/506/509/120B of the Indian Penal Code, 1860 at PS.: Bhajanpura, North-East District, Delhi.

To put things in perspective, the Bench in para 2 while dwelling on the facts of the case envisages that:
The facts of the FIR reveal that the applicant alongwith two other co-accused persons namely Aashu and Arjun Rathore were involved in committing heinous sexual atrocities upon the complainant over a period of almost 2 years. It is also alleged therein that sometime in November, 2021, for a period of over 6 days, the complainant was forcefully intoxicated, her hands were tied-up and the applicant herein, alongwith the aforementioned two other co-accused persons, invited other persons in lieu of money charged, to commit sexual atrocities upon her.

As we see, the Bench then discloses in para 3 that:
Learned counsel for the applicant submits that since the chargesheet has already been filed, therefore, there is no threat of the applicant either tampering with the evidence or threatening the witnesses; and that the applicant never came in any direct contact with the complainant at any point of time; and that the complainant, in her statement recorded under Section 161 of the CrPC, has not alleged that the applicant had ever made any direct physical/ sexual relations with her; and that the applicant is a young boy aged around 19 years and has clean antecedents; and that there has been an inordinate/unexplained delay of around 31 months in registration of the present FIR and lastly that since one of the co-accused namely Arjun Rathore has already been granted bail by a co-ordinate Bench of this Court vide order dated 08.02.2023, the applicant ought to be released on bail on the grounds of parity.

As it turned out, the Bench points out in para 4 that:
This Court, vide its order dated 28.02.2023, issued notice. The Status Report was called for and the Nominal Roll was also requisitioned from the concerned Jail Authorities.

Quite strikingly, we see that the Bench then observes in para 5 that:
Learned APP for the State, while opposing grant of bail in the present application submits that the complainant has leveled extremely serious allegations against the applicant to the effect that it was the applicant who used to call several persons for having sexual intercourse with the complainant in lieu of the money charged from those persons; and that the applicant is in fact the king-pin and the key player who used to arrange different persons for the other two co-accused persons for having forceful sexual intercourse with the complainant and lastly that the delay in the registration of the present FIR was on account of the fact that the complainant had stated that she was blackmailed by one of the co-accused persons that if she takes any step qua registration of a complaint/ FIR against the co-accused persons, then he would make her nude pictures/videos, public and viral.

Needless to say, the Bench states in para 6 that:
This Court has heard the learned counsel for the applicant and the learned APP for the State and perused the Status Report filed by the State as also the other documents on record.

As things stands, the Bench then mentions in para 7 that:
As per the Nominal Roll, the applicant has been in judicial custody since 06.09.2022, and his overall jail conduct has been satisfactory.

Most significantly, what constitutes the cornerstone of this notable judgment is then propounded most precisely in para 8 wherein it is postulated that:
Before adverting to the merits involved herein, this Court would like to specify that though filing of the chargesheet is a material consideration while granting bail, however, the same is not the sole criterion to be taken into consideration as it has to be coupled with the facts and circumstances involved. Here is a case wherein, though the chargesheet has already been filed, however, the complainant in both her statements recorded under Sections(s) 161 and 164 of the CrPC has specifically deposed not only naming the applicant but also attributing a specific role to him. The applicant has been assigned the role of bringing other persons to have physical relations with the complainant after charging them money.

It cannot be lost sight of that the Bench then further hastens to add in para 9 stating succinctly that:
The involvement of the applicant, under the given circumstances, raises a concern, more so, as there is no denial of the fact that he was known to the other co-accused persons named in the present FIR and in any event, the same is very much a matter of trial. At this stage, there is no plausible reason or explanation given by the applicant for his involvement with the other co-accused persons in the commission of the alleged offences.

No less significant is what is then articulated so uprightly by the Bench in para 10 of this noteworthy judgment wherein it is expounded that:
The aforesaid facts coupled with the grievousness of the offences including the severity of the punishment, if convicted, are themselves sufficient reasons for this Court to deny bail to the applicant at this stage. Primarily when the conditions laid down by the Hon’ble Supreme Court in Re.: Prasanta Kumar Sarkar vs. Ashis Chatterjee (2010) 14 SCC 496 and State of Uttar Pradesh vs. Amaramani Tripathi (2005) 8 SCC 21 and Deepak Yadav vs. State of Uttar Pradesh (2022) 8 SCC 559] for granting bail to any accused like the applicant are as under:

1. Whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
2. Nature and gravity of the accusation;
3. Severity of the punishment in the event of conviction;
4. Danger of the accused absconding or fleeing, if released on bail;
5. Character, behaviour, means, position, and standing of the accused;
6. Likelihood of the offence being repeated;
7. Reasonable apprehension of the witnesses being influenced;
8. Danger, of course, of justice being thwarted by the grant of bail.

As a corollary, the Bench then goes on to hold in para 11 of this robust judgment that:
Accordingly, the present bail application is dismissed in the above terms.

Finally and for the sake of clarity, the Bench then also clarifies in para 12 of this remarkable judgment directing most clearly and most precisely that, Needless to mention, observations made, if any, are purely for the purposes of adjudication of present application and shall not be construed as expressions on the merits of the matter.

In a nutshell, we can now thus safely conclude after going through a very cursory look at this most refreshing, rational, recent and remarkable judgment delivered by the Single Judge Bench comprising of Hon’ble Mr Justice Saurabh Banerjee of the Delhi High Court that though filing a chargesheet is a material consideration while granting bail, it is not the sole criterion and definitely there can be thus no gainsaying as has been underscored by the Court also that it must be considered in conjunction with the facts and circumstances of the case. We thus see that the facts coupled with the grievousness of the offences including the severity of the punishment, if convicted, are themselves sufficient reasons for this Court to deny bail to the applicant and it was accordingly thus denied! No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh