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Sangitaben Shaileshbhai Datanta v. State Of Gujarat And Another
Factual and Procedural Background
An FIR (C.R. No. 113/17) was lodged on 16-09-2017 at Shahpur Police Station, Ahmedabad City, against Respondent 2 for offences under Sections 376(2)(f) and 376(2)(i) of the Indian Penal Code, 1860, and Sections 4, 5(c), 5(f), 5(m), 6, 8, 9(c), 9(f), 9(m) and 10 of the Protection of Children from Sexual Offences Act, 2012 (POCSO). The complainant is the grandmother of the seven-year-old victim.
A charge-sheet was filed on 05-12-2017. Respondent 2 sought bail before the High Court of Gujarat and was granted bail by order dated 27-04-2018 (2018 SCC OnLine Guj 2153). Aggrieved, the grandmother (appellant) filed a Special Leave Petition before the Supreme Court of India. The present order decides that appeal.
Legal Issues Presented
- Whether the High Court, while deciding a bail application under Section 439 CrPC, erred by directing lie-detector, brain-mapping and narco-analysis tests of the accused, the victim’s grandmother, and the victim’s parents, thereby effectively conducting a “mini-trial”.
- Whether the High Court violated Section 228-A IPC and relevant provisions of the POCSO Act by repeatedly disclosing the identity of the minor victim in its bail order.
- Consequent to the above, whether the Supreme Court should set aside the High Court’s order granting bail to Respondent 2.
Arguments of the Parties
Appellant and State
- The High Court’s order contravenes settled principles governing bail under Section 439 CrPC by ordering invasive scientific tests and scrutinising their results in detail.
- Such an approach converts a bail hearing into a mini-trial, which is impermissible at the pre-trial stage.
- The High Court unlawfully disclosed the minor victim’s identity, contravening Section 228-A IPC and the protective provisions of the POCSO Act.
Respondent 2 (Accused)
- As bail had already been granted by the High Court, the Supreme Court should refrain from interfering.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| State of Punjab v. Ramdev Singh (2004) 1 SCC 421 | Court judgments should avoid disclosing the identity of victims of sexual offences, reflecting the object of Section 228-A IPC. | Used to emphasise that the High Court erred in repeatedly naming the minor victim in its bail order. |
Court's Reasoning and Analysis
The Supreme Court held that Section 439 CrPC limits the inquiry in bail matters to a prima facie assessment of the case. By ordering and then analysing lie-detector, brain-mapping and narco-analysis tests, the High Court ventured far beyond this limited scope, effectively conducting a “mini-trial”. Such an exercise was branded contrary to “first principles of criminal law jurisprudence”.
The Court further noted that the High Court’s repeated disclosure of the minor victim’s name violated Section 228-A IPC and ran counter to the protective intent embodied in Sections 33(7) and 23 of the POCSO Act. Reliance was placed on State of Punjab v. Ramdev Singh to reinforce the requirement that courts themselves must refrain from revealing a sexual-offence victim’s identity.
Because the High Court’s approach contravened statutory mandates and precedent, the Supreme Court found the impugned bail order unsustainable and deprecated the State’s failure to appeal it promptly.
Holding and Implications
Holding: The appeal is allowed; the High Court’s order dated 27-04-2018 granting bail in 2018 SCC OnLine Guj 2153 is quashed and set aside.
Implications: Respondent 2’s bail stands cancelled, and the trial court is directed to expedite the criminal trial. The judgment reinforces that (i) bail hearings must not morph into mini-trials through invasive evidentiary orders, and (ii) courts must protect the anonymity of sexual-offence victims, thus reaffirming statutory safeguards without creating new precedent.
Order
1. Leave granted. This appeal by special leave is directed against the order passed by the High Court of Gujarat at Ahmedabad in Sunilkumar Virjibhai Damor v. State Of Gujarat 2018 SCC OnLine Guj 2153 for the offences punishable under Sections 376(2)(f) and 376(2)(i) of the Penal Code, 1860 and also for the offences under Sections 4, 5(c), (f), (m), 6, 8, 9(c), (f), (m) and 10 of the Protection of Children from Sexual Offences Act, 2012 by which the High Court granted bail to the accused (hereinafter referred to as “Respondent 2”).
2. It is not required to go into the details of the instant case. However, we find it pertinent to mention brief facts, which are as follows. On 16-9-2017, an FIR, CR No. 113/17 was lodged at Shahpur Police Station, Ahmedabad City against Respondent 2, under Sections 376(2)(f) and 376(2)(i) IPC and Sections 4, 5(c), (f), (m), 6, 8, 9(c), (f), (m) and 10 of the Pocso Act, by the appellant, who is grandmother of the “victim”. The victim herein is a minor, aged around 7 years.
3. Respondent 2 was apprehended thereafter and charge-sheet was filed on 5-12-2017 for the offence mentioned in the FIR. Therein, Respondent 2 approached the High Court for bail and the same was granted 2018 SCC OnLine Guj 2153.
4. The learned counsel for the appellant as well as the State have brought to our notice that the present order of the High Court is in clear violation of the settled principles of criminal law jurisprudence and statutory prescriptions. It was also contended that, while considering the bail application, the High Court traversed the settled principles of law. The learned counsel for appellant has brought to our notice that the High Court directed respondent-Accused 2 as well as the appellant, who is grandmother of the victim along with parents of the victim to undergo scientific tests viz. lie detector, brain mapping and narco analysis. After receiving the reports of the same, it examined the same before enlarging Respondent 2 on bail vide impugned order dated 27-4-2018 2018 SCC OnLine Guj 2153. Further, it is also brought to our notice that the learned Judge has throughout the course of his order disclosed the identity of the “victim”.
5. Counsel for Respondent 2 has contended that the respondent has already been enlarged on bail by the High Court, and thus, seeks non-interference by this Court.
6. Having heard the counsel for the parties, it is surprising to note the present approach adopted by the High Court while considering the bail application. The High Court ordering the abovementioned tests is not only in contravention to the first principles of criminal law jurisprudence but also violates statutory requirements. While adjudicating a bail application, Section 439 of the Code of Criminal Procedure, 1973 is the guiding principle wherein the court takes into consideration, inter alia, the gravity of the crime, the character of the evidence, position and status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of his tampering with the witnesses and obstructing the course of justice and such other grounds. Each criminal case presents its own peculiar factual matrix, and therefore, certain grounds peculiar to a particular case may have to be taken into account by the court. However, the court has to only opine as to whether there is prima facie case against the accused. The court must not undertake meticulous examination of the evidence collected by the police, or rather order specific tests as done in the present case.
7. In the instant case, by ordering the abovementioned tests and venturing into the reports of the same with meticulous details, the High Court has converted the adjudication of a bail matter to that of a mini trial indeed. This assumption of function of a trial court by the High Court is deprecated.
8. Apart from the above, the High Court stands in clear violation of the precedents of this Hon'ble Court and statutory prescriptions, by disclosing the name of the “victim” throughout the impugned order 2018 SCC OnLine Guj 2153. At this juncture, we would like to highlight Section 228-A IPC, which states as follows—
“228-A. Disclosure of identity of the victim of certain offences, etc.—(1) Whoever prints or publishes the name or any matter which may make known the identity of any person against whom an offence under Section 376, Section 376-A, Section 376-AB, Section 376-B, Section 376-C, Section 376-D, Section 376-DA, Section 376-DB or Section 376-E is alleged or found to have been committed (hereafter in this section referred to as the victim) shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine.
***
Explanation.—The printing or publication of the judgment of any High Court or the Supreme Court does not amount to an offence within the meaning of this section.”
9. Extrapolating the intention of the legislature in Section 228-A IPC, this Court in, State Of Punjab v. Ramdev Singh . (2004) 1 SCC 421 has made the following observations:
“3. We do not propose to mention the name of the victim. Section 228-A IPC makes disclosure of identity of the victim of certain offences punishable. Printing or publishing name or any matter which may make known the identity of any person against whom an offence under Sections 376, 376-A, 376-B, 376-C or 376-D is alleged or is found to have been committed can be punished. True it is, the restriction does not relate to printing or publication of judgment by the High Court or the Supreme Court. But keeping in view the social object of preventing social victimisation or ostracism of the victim of a sexual offence for which Section 228-A has been enacted, it would be appropriate that in the judgments, be it of this Court, High Court or lower courts, the name of the victim should not be indicated. We have chosen to describe her as “victim” in the judgment.”
(emphasis supplied)
10. The concern of the legislature in protecting the identity of the victim is further evident from the provisions of Pocso Act. Section 33(7) of the same casts a duty on the Special Court to ensure that identity of the victim is not disclosed at any time during the course of investigation or trial. Further, Section 23 of the Pocso Act provides restriction on any form of media to disclose the identity of the victim which tends to lower her reputation or infringes upon her privacy. No disclosure of any particular(s) is allowed which can eventually lead to disclosure of the identity of the victim.
11. Thus, taking note of the violation of settled principles of criminal law jurisprudence and statutory prescriptions vis-à-vis conversion of adjudication of bail application to a mini-trial and disclosure of identity of the “victim” by the High Court, we disapprove the manner in which the High Court has adjudicated the bail application and accordingly, quash the order 2018 SCC OnLine Guj 2153 passed by the High Court.
12. While disposing the matter, we are constrained to observe the lethargic attitude of the State by not taking necessary steps to bring the matter to the notice of this Court by filing an appeal despite the clear violations of settled principles of criminal law jurisprudence and statutory prescriptions. The present special leave petition was filed by the grandmother of the victim and it is only on her behest that we took notice of the matter.
13. Having considered the facts and circumstances of the case in the light of foregoing discussion, we allow the appeal and set aside the impugned order 2018 SCC OnLine Guj 2153 passed by the High Court. Before parting with the matter, we make it clear that we have not expressed any opinion on the merits of the case. However, considering the seriousness of the allegations levelled against Respondent 2 herein, we direct the trial court to expedite the trial and conclude the proceedings as expeditiously as possible.
14. The appeal stands allowed accordingly.
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