Bombay High Court
Gia Rajkumar Kukreja vs State Of Goa, Thr. Public Prosecutor And ... on 24 June, 2025
2025:BHC-GOA:1103
2025:BHC-GOA:1103
906 WPCR 26-2025
Jose
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL WRIT PETITION NO.26 OF 2025
XXXXXX
Daughter of XXXXXX
Age 18 years, Student
Resident of Flat No. 1501,
A bldg., Verde residency,
Next to Nagar wala day board school,
Kalyani Nagar, Pune, Maharashtra. ... Petitioner.
Versus
1. STATE OF GOA,
Through Public Prosecutor,
High Court of Bombay at Goa
Porvorim Goa.
2. The Police Inspector
Anjuna Police Station
Bardez - Goa.
3. Mr. Sohail Sayyed
Son of Shabuddin Sayyed
Age 19 years, Student,
Resident of Flat no. 3F2,
Models Legacy, Taleigao,
Tiswadi Goa. ... Respondents.
Mr. Pavithran A.V. with Ms. S. Shaikh, Advocates for the
Petitioner.
Mr. S.G. Bhobe, Public Prosecutor for Respondent Nos.1 and 2.
Mr. Vibhav Amonkar, Advocate for Respondent No.3.
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906 WPCR 26-2025
CORAM: VALMIKI MENEZES, J.
DATED: 24th June, 2025
JUDGMENT:
1. Registry to waive office objections and register this matter.
2. This is a petition filed by a victim seeking cancellation of bail granted to the Respondent No.3 who is Accused No.1 in Crime No. 135/2024 registered at Anjuna Police Station on 05.10.2024 pursuant to which charge-sheet No.137/2024 was filed on 30.11.2024, pending trial before the Fast Track Special Court (POCSO) at Panaji bearing No. 8/2025. The charge-sheet alleges commission of an offence by the Accused No.1 and Accused No.2 under Sections 328, 376 and 354-A IPC.
3. The case as set out by the victim in her complaint which is dated 04.10.2024, was that she had travelled to Goa from Pune, with her mother on 21.06.2024 for a holiday and whilst attending a party at a hotel at Vagator, on 22.06.2024 with her friend Viola, they were joined by Viola's friends, Accused No.1, Accused No.2 and one Sadiq. After they had a few drinks which were prepared by Accused No.1, she felt disorientated, the victim records that she suspected that Accused No.1 might have spiked her drinks. She also states that the Accused No.1 started making advances towards her which she Page 2 of 19 24th June, 2025 ::: Uploaded on - 04/07/2025 ::: Downloaded on - 05/07/2025 11:11:52 ::: 906 WPCR 26-2025 rebuked. She then states that she was losing consciousness due to the alcohol and only remembers that Accused No.1 took her to the isolated area outside the hotel, forcefully disrobed and had sexual intercourse with her against her wish. She also states that she was totally helpless and became unconscious.
4. The complaint further records that the victim regained consciousness at around 6:00 a.m. on 23.06.2024 and found herself in her hotel room where her mother and her friend Viola were present and she found herself wearing the clothes of the Accused No.1. She recounts that she had iron wires in her hair and multiple bruises and scratches on her body and she felt a pain in her private part. She also records that she had bumps on her head and was then taken by her mother around 10:00 a.m. to Galaxy Hospital, Mapusa where she was treated for her injuries, but did not report the sexual assault of the incident to the doctor on that date.
5. The victim further states in her complaint that she reported the matter to Anjuna Police Station on 25.06.2024 where Accused No.1 was brought and at that time, she was under severe trauma due to the sexual assault and was not in a position to decide what to do next. She further states that on 27.06.2024, she gathered courage and along with her mother and Viola went to Galaxy Hospital and reported the sexual assault to the doctor, where she was examined and she was informed that there were internal injuries to her private part and the Page 3 of 19 24th June, 2025 ::: Uploaded on - 04/07/2025 ::: Downloaded on - 05/07/2025 11:11:52 ::: 906 WPCR 26-2025 sexual assault was confirmed. She also states that during inquiries with her friend Tanishka and Viola, she learnt that her friends had seen her with Accused No.1 on the night of 22.06.2024 sitting in a car driven by one female driver suspected to be a relative of Accused No.2. She alleges that Accused No.1 had forcefully disrobed her on that night and had sexual intercourse with her against her will.
6. An FIR came to be registered on 05.10.2024 after the complaint was filed. The victim was sent for medical examination on the same day. A scene of offence panchanama was also prepared on 05.10.2024 and thereafter the statements of witnesses which include the victim's mother, her friend Viola and Tanishka were recorded between 07.10.2024 and 11.10.2024. The victim's statement under Section 164 Cr.P.C. was recorded by the JMFC, Mapusa on 08.10.2024 wherein she has repeated the narration found in the complaint and has further stated that the doctor who examined her at Galaxy Hospital on 26.06.2024 called the Police to record her statement, however, due to threats given by Accused No.1, she had not given her statement to the Police. She records that after leaving the hospital, she went back to Pune, from where she hails. She has also stated before the Magistrate that she underwent trauma therapy at Pune, to enable her to come out of the trauma, and she was presently under medication. She has further stated that after treatment, and with support of her family, she decided to lodge the FIR. The Accused No.1 was arrested on 07.11.2024 after an anticipatory bail application Page 4 of 19 24th June, 2025 ::: Uploaded on - 04/07/2025 ::: Downloaded on - 05/07/2025 11:11:52 ::: 906 WPCR 26-2025 was rejected on 06.11.2024. Accused No.2 was not arrested, since he complied with the notice under Section 35(3) BNSS. Charge-sheet was then filed on completion of investigation on 30.11.2024 and is pending trial before the Sessions Court, Panaji.
7. Accused No. 1 filed an application seeking bail, bearing No. 09/2025, before the Sessions Court, Panaji on 07.01.2025 wherein, the victim/complainant was allowed by the Sessions Court to intervene. After hearing the victim and State impugned order dated 18.02.2025 granting bail to Accused No. 1 by imposing certain conditions was passed. This order is impugned herein on various grounds and submissions advanced by the Petitioner.
8. It is the Petitioner's submission through Advocate Mr. A. V. Pavithran, that the Sessions Court, has used language and reasoning in the order which trivialises the survivor and tends to diminish the severity of the offence. It is submitted that the considerations adopted by the Sessions Court for grant of bail to the Accused were not those permissible under Section 439, Cr.P.C. Reliance was placed on the following Judgments of the Supreme Court in support of these submissions:
(i) Ranjit Singh v. State of Madhya Pradesh, (2013) 16 SCC
797.
(ii) XYZ & Ors. v. State of Madhya Pradesh & Anr., (2021) 16 SCC 179.
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9. Shri. S.G. Bhobe, learned Public Prosecutor, supports the arguments advanced by the victim submitting that this is not a case where the State or the victim alleges a breach of the conditions of grant of bail but this is a case where the order granting bail, on the face of it suffers from perversity for non-consideration of the specific conditions laid down by the Hon'ble Supreme Court in The State of Rajasthan v. Indraj Singh, reported in 2025 SCC OnLine SC 518 He further submits that the principles for grant of bail as contained in Section 439 Cr.P.C. have been totally ignored by the Sessions Court while granting bail on wholly irrelevant factors and considerations. He places reliance on a Judgment of the Supreme Court in Ash Mohammad v. Shivraj Singh reported in (2012) 9 SCC 446, wherein the Supreme Court has laid down the factors to be considered for grant of bail and in what event orders granting bail may be held legally unsustainable and contrary to the principles laid down for grant of bail under Section 439 of the Code.
10. Shri Vibhav Amonkar for Respondent No.3/Accused No.1 supports the impugned order and submits that all relevant factors for grant of bail in terms of Section 439 Cr.P.C. had been considered by the Sessions Court. He submits that the observations of the Sessions Court as to the conduct of the victim on the relevant dates i.e. at the time of the incident and immediately after have been considered by the Sessions Court, and observations with regard to non-compliance of Section 164-A Cr.P.C. and the observations with regard to the Page 6 of 19 24th June, 2025 ::: Uploaded on - 04/07/2025 ::: Downloaded on - 05/07/2025 11:11:52 ::: 906 WPCR 26-2025 victim being free willed and having no control over life were based upon the statement of the victim herself.
11. Before considering the rival submissions, it would be apposite to make reference to certain Judgments of the Apex Court on the subject. On the question of what would be the considerations for grant of bail by the Sessions Court, the Supreme Court, in a catena of Judgments has laid down certain guidelines and parameters which are as listed under:
i. Whether there exists a prima facie ground for the Court to reasonably believe that the accused has committed the offence;
ii. The nature of the accusations and the gravity of the charges;
iii. The severity of the punishment that may be imposed upon conviction;
iv. The criminal antecedents of the accused, if any; v. The reasonable possibility of the accused absconding or fleeing if released on bail; and vi. The reasonable apprehension that the witnesses may be tampered with.
The aforementioned principles governing the grant of bail are culled out by the Supreme Court in a plethora of judgments and are re-iterated in Ram Govind Upadhyay v. Sudarshan Singh, Page 7 of 19 24th June, 2025 ::: Uploaded on - 04/07/2025 ::: Downloaded on - 05/07/2025 11:11:52 ::: 906 WPCR 26-2025 (2002) 3 SCC 598 and Sanjay Chandra v. CBI, AIR 2012 SC 830.
12. The Supreme Court has also laid down in several Judgments what would constitute irrelevant considerations or factors, which ought not to be considered whilst granting bail, especially in offences which are of heinous nature or offences such as rape. In Ash Mohammad (supra), the Supreme Court was considering a case where the victim had sought cancellation of bail granted to the Accused, and has considered therein whether the order passed by the High Court granting bail, was legitimately acceptable and could be legally sustained, on the factors that it considered whilst granting bail. The relevant portions of this Judgment are quoted below:
"13. In Puran v. Rambilas it has been noted that (SCC p.
345. para 11) the concept of setting aside an unjustified, illegal or perverse order is totally different from the cancelling an order of bail on the ground that the accused had misconducted himself or because of some supervening circumstances warranting such cancellation.
14. In Narendra K. min v. State of Gujarat a three-Judge ench has observed that when irrelevant materials have been taken into consideration the same makes the order granting bail vulnerable. If the order is perverse. the same can be set at naught by the superior court.
15. In Prakash Kadam v. Ramprasad Vishwanath Gupta, while making a distinction between cancellation of bail and consideration for grant of bail, this Court opined thus: (SCC p. 195, paras 18-19) Page 8 of 19 24th June, 2025 ::: Uploaded on - 04/07/2025 ::: Downloaded on - 05/07/2025 11:11:52 ::: 906 WPCR 26-2025 "18. In considering whether to cancel the bail the court has also to consider the gravity and nature of the offence, prima facie case against the accused, the position and standing of the accused, etc. If there are very serious allegations against the accused his bail may be cancelled even if he has not misused the bail granted to him. Moreover, the above principle applies when the same court which granted bail is approached for cancelling the bail. It will not apply when the order granting bail is appealed against before an appellate/Revisional Court.
19. In our opinion, there is no absolute rule that once bail is granted to the accused then it can only be cancelled if there is likelihood of misuse of the bail. That factor, though no doubt important, is not the only factor. There are several other factors also which may be seen while deciding to cancel the bail."
13. In Shabeen Ahmad v. The State of Uttar Pradesh & Anr., reported in 2025 SCC OnLine SC 479, the Supreme Court considered whether an order granting bail on the facts of that case, deserved to be sustained or set aside in the light of the material available therein. That was a case of dowry death under Section 498-A IPC and Dowry Prohibition Act where the wife of the Accused had died under suspicious circumstances. The Supreme Court considered the ante mortem injuries on the body and the pronounced ligature mark signifying strangulation along with other relevant material and concluded that the Court granting bail was Page 9 of 19 24th June, 2025 ::: Uploaded on - 04/07/2025 ::: Downloaded on - 05/07/2025 11:11:52 ::: 906 WPCR 26-2025 obliged to consider such relevant material, including the severity of the offence.
14. On applying the principles laid down by the Supreme Court in the abovementioned Judgments, the offence which has been complained of in the present case is no doubt of very serious nature. The victim, in her complaint and in her statement under Section 164 to the Magistrate has stated the details of the offence and the circumstances under which she alleged they took place. She has stated that she and her friends were in an inebriated state due to consumption of alcohol on the relevant date and she has described her physical state after the sexual assault which she alleges was committed by the Accused No.1 in the bushes outside the hotel where she was attending a party.
15. From the description of the state of the victim at the relevant time, she claims that she was not in control of herself and later on lost consciousness. The victim has also described the injuries on her body which have been recorded by the Medical Officer a day after the incident. The medical records maintained by the Medical Officer of Galaxy Hospital on 23.06.2024 and 27.06.2024 clearly establish the injuries found on the body of the victim. The medical report of 27.06.2024 records in detail the history of sexual assault and the medical findings of the officer which includes the inflammation and bleeding found on the vagina of the victim. The medical papers also Page 10 of 19 24th June, 2025 ::: Uploaded on - 04/07/2025 ::: Downloaded on - 05/07/2025 11:11:52 ::: 906 WPCR 26-2025 opine that the case be recorded as a Medico-Legal case and information to this effect was given to the Anjuna Police Station by the Medical Officer on 27.06.2024 itself. There is also a Station Diary entry found on 25.06.2024 at 10:34 found at the Anjuna Police Station recording that the victim had visited the Police Station with her mother and friend and were advised to give a complaint. The entry also records that the victim had a discussion with her friends and stated that she does not want to lodge any FIR.
16. Pursuant to the Station Diary entry, the Anjuna Police requested from the hotel where the incident is alleged to have taken place, the CCTV recording of the night of 22.06.2024, which was provided to the Police Station by the hotel on 05.07.2024. The CCTV footage records the presence of the Accused No.1, the victim and her friends and their movement out of the hotel before the alleged incident of rape took place. Prima facie, the CCTV footage establishes the narration of the victim and her friends Viola and Tanishka, whose statements had been recorded.
17. This material, prima facie establishes that the incident was reported to the Anjuna Police Station immediately after the alleged offence, both, by the victim and by the Medical Officer. The Accused No.1 was also specifically named in the General Diary record of the Police Station of that date.
18. The victim herself has stated both in her complaint and in her Page 11 of 19 24th June, 2025 ::: Uploaded on - 04/07/2025 ::: Downloaded on - 05/07/2025 11:11:52 ::: 906 WPCR 26-2025 statement to the Magistrate, that being traumatised, and having to face the presence of the Accused No.1 at the Police Station on the relevant date, chose not to file the complaint and proceeded to Pune where she took psychological treatment post her trauma. It is only after she gathered the courage and was supported by her friends and parents that she chose to lodge a formal complaint on 04.10.2024 relating the entire incident in her complaint and statement. The fact however remains that from the medical papers, it is prima facie established that the victim was subjected to a sexual assault and the incident was reported to the Anjuna Police Station on 25.06.2024 and was further reported by the Medical Officer of Galaxy Hospital on the same day though the medical papers were not physically forwarded to the Police Station. These medical papers were taken in custody during investigation on 07.10.2024.
19. Perusal of the impugned order would reveal that the Sessions Court has, whilst granting bail, taken into consideration, amongst others, the following factors/facts:
a) The submission of the Advocate for the Accused that alcohol drinks consumed by the victim were itself intoxicating drinks, and alcohol interferes with the brain communication pathways and can affect the mood and behaviour of the person; that the victim and her friends were so intoxicated that they could not walk properly.Page 12 of 19
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b) That the Complainant has not stated anywhere that she was not averse to drinking alcohol or she never had any alcohol or she refused to have alcohol or that she had plain beverages which were spiked with intoxicating substance, and therefore, it appears that the victim was used to having such party drinks.
c) That due to failure of the Medical Officer to follow the mandatory provisions of Section 164-A Cr.P.C., the not forwarding the medical papers of the victim, valuable evidence regarding the offence could not be collected.
d) That the mother of the victim has stated that they approached the Anjuna Police Station on 25.06.2024 to make a complaint, and they were made to sit from 11:00 a.m. to 10:00 p.m. at the Police Station, as the Anjuna Police were not cooperating; that there were around 8 male persons outside the Police Station to create fear in their minds and to intimidate them from filing a complaint. The order then goes on to consider that the victim, on the contrary, has not stated these facts in her complaint and therefore, this is an improvement made by the victim. It is further held that the question of whether there is a justification in filing the complaint belatedly and whether the medical certificate issued by the Medical Officer of the private hospital would Page 13 of 19 24th June, 2025 ::: Uploaded on - 04/07/2025 ::: Downloaded on - 05/07/2025 11:11:52 ::: 906 WPCR 26-2025 be admissible as proof of rape would be a matter of trial, and may not be considered at this stage.
e) That the victim had stated that she did not remember much about the incident, but that she subsequently found herself outside the hotel in a bushy area and the Applicant had forceful sexual intercourse with her without her consent. That the victim stated that during her inquiry with Viola, she learnt from her that she was sitting in a car with the Accused, which was driven by a driver who she suspected was Accused Devkrish. From this, the Court concludes that the statement of the victim prima facie shows she did not know exactly what happened to her as she was intoxicated. That the victim has joined titbits of her memory from versions given by Viola and Tanishka and made allegations against the Accused, which prima facie does not make out a case for denial of bail.
20. In XYZ & Ors. v. State of Madhya Pradesh & Anr., reported in (2021) 16 SCC 179, the Supreme Court has considered the manner in which Courts deciding bail applications under Sections 438 and 439 in cases of anticipatory bail and bail applications should consider the material, in cases of sexual offences. It has deprecated the use of reasoning and language by Courts, while passing their orders in such offences, which tend to trivialise the survivor or diminish the offence.
Page 14 of 1924th June, 2025 ::: Uploaded on - 04/07/2025 ::: Downloaded on - 05/07/2025 11:11:52 ::: 906 WPCR 26-2025 The following passages from this Judgment are relevant to the present case:
"42. This Court therefore holds that the use of reasoning /language which diminishes the offence and tends to trivialise the survivor, is especially to be avoided under all circumstances. Thus, the following conduct, actions or situations are hereby deemed irrelevant, e.g. to say that the survivor had in the past consented to such or similar acts or that she behaved promiscuously, or by her acts or clothing, provoked the alleged action of the accused, that she had called upon the situation by her behaviour, etc. These instances are only illustrations of an attitude which should never enter judicial verdicts or orders or be considered relevant while making a judicial decision; they cannot be reasons for granting bail or other such relief. Similarly, imposing conditions that implicitly tend to condone or diminish the harm caused by the accused and have the effect of potentially exposing the survivor to secondary trauma, such as mandating mediation processes in non-compoundable offences, mandating as part of bail conditions, community service (in a manner of speaking with the so-called reformative approach towards the perpetrator of sexual offence) or requiring tendering of apology once or repeatedly, or in any manner getting or being in touch with the survivor, is especially forbidden. The law does not permit or countenance such conduct, where the survivor can potentially be traumatised many times over, or be led into some kind of non-voluntary acceptance, or be compelled by the circumstances to accept and condone behaviour what is a serious offence Page 15 of 19 24th June, 2025 ::: Uploaded on - 04/07/2025 ::: Downloaded on - 05/07/2025 11:11:52 ::: 906 WPCR 26-2025
43. The instances spelt out in the present judgment are only illustrations; the idea is that the greatest extent of sensitivity is to be displayed in the judicial approach, language and reasoning adopted by the Judge. Even a solitary instance of such order or utterance in the court, reflects adversely on the entire judicial system of the country, undermining the guarantee to fair justice to all, and especially to victims of sexual violence (of any kind from the most a aggravated to the so-called minor offences)."
Considering the reference made by me to the findings of the Sessions Court whilst granting bail, which have been referred to in para 19 above, and culled out from paras 6, 12, 13 and 17 of the impugned order, the Sessions Court ought not to have made any references to the behaviour and conduct of the victim. The comments of the Sessions Court on the victim's behaviour, were uncalled for and would not be a consideration for grant or refusal of bail. The fact is that the victim has stated that she was intoxicated and not in control of herself and then was a victim of sexual assault. The considerations for grant of bail are detailed in para 11 above as referred in in Ram Govind Upadhyay (supra) and Sanjay Chandra (supra). Bail was therefore granted to the Accused on certain irrelevant considerations as referred to above which renders the impugned order to be perverse and on irrelevant or extraneous considerations. Such an order cannot be sustained and would necessarily have to be set aside.
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21. This position has been reiterated by the Supreme Court in Ranjit Singh (supra), holding that orders granting bail on a Court's erroneous perception or fallacious understanding are to be considered illegal and suffering from perversity. Relevant paragraphs of the Judgment are as quoted below:
18. We have reproduced the said order in extenso to appreciate whether as matter of fact the learned dditional Sessions Judge has misconstrued the import of the order or decided the application under Section 439 CrPC regard being had to the considerations that are to be kept in mind while dealing with such an application. s is evincible, there has been no deliberation with regard to the requirements under Section 439 CrPC. The order read in entirety clearly reflects that the learned dditional Sessions Judge had an erroneous perception and fallacious understanding of the order passed by the High Court and it is clear as day that the regular bail was b granted on the bedrock of the order passed by the High Court.
He had absolutely misconstrued the order. Thus, the order passed by the learned dditional Sessions Judge is totally unjustified and illegal.
19. It needs no special emphasis to state that there is distinction between the parameters for grant of bail and cancellation of bail. There is also a distinction between the concept of setting aside an unjustified, illegal or c perverse order and cancellation of an order of bail on the ground that the accused has misconducted himself or certain supervening circumstances warrant such cancellation. If the order granting bail is a perverse one or passed on irrelevant materials, it can be annulled by the superior court. We have already referred to Page 17 of 19 24th June, 2025 ::: Uploaded on - 04/07/2025 ::: Downloaded on - 05/07/2025 11:11:52 ::: 906 WPCR 26-2025 various paragraphs of the order passed by the High Court. We have already held that the learned trial Judge has misconstrued the order passed by the High Court. However, we may hasten to add that the learned Single Judge has taken note of certain supervening circumstances to cancel the bail, but we are of the opinion that in the obtaining factual matrix the said exercise was not necessary as the grant of bail was absolutely illegal and unjustified as the court below had enlarged the accused on bail on the strength of the order passed in Ranjeet Singh v. State of M.P. remaining oblivious of the parameters for grant of bail under Section 439 CrPC. It is well settled in law that grant of bail though involves exercise of discretionary power of the court, yet the said exercise has to be made in a judicious manner and not as a matter of course."
22. Considering that the impugned order suffers from perversity and is contrary to the law laid down by the Supreme Court on what should be the considerations for grant or rejection of bail, the impugned order is quashed and set aside. The Fast Track Special Court (POCSO) at Panaji dealing with Sessions Case No.8/2025 shall hear the bail application bearing No. 09/2025 of Respondent No.3 afresh in the light of the observations made herein and considering only the relevant factors which are discussed above. It is submitted that the matter before the POCSO Court is now listed on 29.07.2025. Considering the urgency in hearing the bail application, the Fast Track Special Court (POCSO) at Panaji shall commence hearing of the bail application, preferably on 07.07.2025 at 2:30 p.m. The bail application shall be decided within 30 days from this order. The Page 18 of 19 24th June, 2025 ::: Uploaded on - 04/07/2025 ::: Downloaded on - 05/07/2025 11:11:52 ::: 906 WPCR 26-2025 parties shall appear and place on the record of the POCSO Court a copy of this order on 07.07.2025, at 2:30 p.m.
23. Considering that the Respondent No.3/Accused No.1 has been enlarged on bail, by the impugned order, which is now set aside, he shall continue to remain enlarged on bail on the same conditions stated in the impugned order, until a fresh order is passed on his bail application. This is by way of an interim arrangement until disposal of the bail application.
24. The impugned order is quashed and set aside and rule is made absolute in terms of the directions contained herein.
VALMIKI MENEZES, J.
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