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Cancelling bail of a rape accused upon whose release "Bhaiya is back" hoardings were put up, the Top Court on Thursday noted that the emojis of crowns and hearts tagged with the captions on the hoardings were not only devoid of any religious sentiments as was claimed by the accused but also they amplified the celebratory mood of him and his supporters.

Court stated,"...they amplify the celebratory mood of the respondent No.2 and his supporters on his having been released from detention in less than two months of being taken into custody for a grave offence that entails sentence of not less than ten years that may even extend to life."

The bench of Chief Justice of India NV Ramana, Justice Krishna Murari and Justice Hima Kohli further noted that the brazen conduct of the accused evoked a bona fide fear in the mind of the complainant that she would not get a free and fair trial if he remained enlarged on bail and that there is a likelihood of his influencing the material witnesses.

Also, the bench opined that even if the posters in question were not contemporaneous to the release of the accused, the captions tagged to his photographs on the social media highlighted the superior position and power wielded by him and his family in the society and its deleterious impact on the complainant.

In the judgment canceling bail, the bench considered whether the High Court was justified in exercising jurisdiction under Section 439(1) of the Cr.P.C. for grant of regular bail in the facts of the present case.

The bench added that the conditions stipulated under Section 437(1)(i) Cr.P.C. ought to be taken into consideration for granting bail even under Section 439 of the Cr.P.C.

"..for cancelling bail once granted, the Court must consider whether any supervening circumstances have arisen or the conduct of the accused post grant of bail demonstrates that it is no longer conducive to a fair trial to permit him to retain his freedom by enjoying the concession of bail during trial", also opined the top court.

Also, a perusal of the impugned order revealed that the High Court has made 'short shrift' of the submissions made by the prosecution counsel to the effect that in her statements recorded under Sections 161 and 164 Cr.P.C., the complainant had not waivered and stuck to her version and the fact that the accused had previous criminal history.

Referring to the explanation offered by the accused is that he is a student leader who belongs to a community that celebrates the festival “Maa Narmada Jayanti” and the posters in question have nothing to do with his being released on bail, was also not accepted by the Court.

When the matter was first heard in April, hoardings reading "Bhaiya is back", which were put up welcoming the accused after his bail, had enraged the Supreme Court. "Ask your bhaiya to be careful this week," a CJI led bench of the Supreme Court had then told the defence counsel as it decided to consider the victim's plea for cancellation of bail.

"What are you celebrating after the bail? What is this hoarding all about", the top court had further enquired then.

The Madhya Pradesh High Court granted bail to the accused in November. FIR alleged that the accused had committed sexual intercourse with the complainant, a major, on various occasions over a period of three years after falsely promising to marry her. He was arrested in September last year.

On the last hearing, Sidharth Luthra, Sr. Adv, appearing for the accused had argued that the hoardings were put up since the accused was a part of an organising committee of a festival.

Luthra had further argued that the other pictures on social media were put up by others and not the accused. He said, "Somebody posts these on social media. I am not posting these. Social media is problematic.”

Case title: Ms. P Vs State of Madhya Pradesh