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2013 DIGILAW 1724 (RAJ)

Sanchita Gupta @ Shilpi v. State of Rajasthan

2013-09-25

NIRMAL KAUR

body2013
JUDGMENT Hon'ble KAUR, J.—The present bail application has been filed under Section 438 of the Cr.P.C. The petitioner is apprehending her arrest in connection with C.R. Case No.122/2013, P.S. Mahila Thana (West), Jodhpur for the offence under Sections 342, 376, 354-A, 506, 509/34 of the IPC, Section 23 & 26 of the Juvenile Justice (Care and Protection of Children) Act, 2000 and under Section 8 of the Protection of Children from sexual offences Act, 2012. 2. Learned counsel for the petitioner while praying for bail submitted that the petitioner is an unmarried girl. She joined Asa Ram Gurukul, Chhindwara (M.P.) only in the month of April, 2013. There is no allegation against her. The only evidence available with the Investigating Agency to connect the petitioner with the offence are the telephone calls between her, the co-accused Shiva and Prakash. However, no text of the said conversation is available. Hence, the said telephone calls between three of them cannot be taken into consideration. Reliance was placed upon the judgment of this Court rendered in the case of Prahlad Sharma vs. State of Rajasthan, reported in 2010(1) Cr.L.R. (Raj.) 380. 3. Learned counsel further argued that as per the medical report, there was no sign of rape having been committed. The prosecutrix was no a minor. The allegations are only of attempt. Hence, no offence under Section 376/34 of the IPC or Section 8 of the Protection of Children from Sexual Offences Act, 2012 is made out against the petitioner. Reliance was placed upon the judgment rendered by Hon'ble the Apex Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra & Ors., reported in (2011) 1 Supreme Court Cases (Cri.) 514 to contend that great ignominy, humiliation and disgrace is attached to arrest and in cases where court is of considered view that accused has joined investigation and is not likely to abscond, in that event, custodial interrogation should be avoided and anticipatory bail should be granted. 4. It was also contended that accused-petitioner neither hatched the criminal conspiracy with the other accused-persons nor sent prosecutrix to village Manai where the said offence is stated to have been committed. Learned counsel for the petitioner vehemently argued that Asa Ram had never met the prosecutrix. Hence, the question the present petitioner acting at the behest of Asa Ram to send the girl to Ashram does not arise. Learned counsel for the petitioner vehemently argued that Asa Ram had never met the prosecutrix. Hence, the question the present petitioner acting at the behest of Asa Ram to send the girl to Ashram does not arise. Further, the petitioner never talked to Asa Ram or his Sevak Shiva on telephone. She never met Asa Ram while she was working on the post and Asa Ram has also never met her. Asa Ram is only a trustee of the said Gurukul and he has no direct control over the Gurukul. 5. It was further stated that the petitioner has already faced the interrogation by the police and her statement was also recorded. Hence, the accused-petitioner is not required for investigation. However, if the Investigating Agency requires her for further investigation, she was ready to appear before the Investigating Agency. Learned counsel for the petitioner concluded his argument by stating that the petitioner is a young lady. She had no knowledge and nor was there any communication between her and main accused Asa Ram. She is only a Warden of the Gurukul. She simply guided the parents of the prosecutrix to show her to a good doctor. Since the petitioner had already joined the investigation and was further ready to cooperate with the investigation, her custodial interrogation is not necessary. 6. Reliance was placed upon the judgment rendered by Delhi High Court in the case of Renu Vij vs. State, reported in 2011(6) AD (Delhi) 153, wherein it was held that mere knowledge is not sufficient and there should be a meeting of minds of two or more persons for doing as illegal act or an act by illegal means to contend that in the absence of any evidence of knowledge or connivance, Section 120-B cannot be invoked in her case. 7. Learned Additional Advocate General while opposing the bail denied that the petitioner had joined the investigation. It was contended that at the first instance, when the complainant was registered, the petitioner was questioned on some aspects. It was enquired from her as to whether she had never contacted the other co-accused Sharad, Prakash or Asa Ram. Her reply was a complete denial. The petitioner denied that she had even contacted any of the other accused, whereas, there are number of call details between the present petitioner, Sharad and other co-accused. It was enquired from her as to whether she had never contacted the other co-accused Sharad, Prakash or Asa Ram. Her reply was a complete denial. The petitioner denied that she had even contacted any of the other accused, whereas, there are number of call details between the present petitioner, Sharad and other co-accused. There was 14 calls between Shilpi (the present petitioner) and victim from 6.8.2013 to 15.8.2013; 46 calls between Shilpi and Sharad; 19 calls between Shilip and Prakash and 17 calls between Sharad and Prakash. Further, co-accused Prakash is the cook of Asa Ram. Even if the cook is replaced by another cook, the telephone number remains the same. The said telephone number is infact the phone of main accused Asa Ram, which remain in the possession of the person whoever is his personal cook. Further, 15 girls of the Gurukul dropped out of the school in mid session. The reason for their leaving the school is required to be interrogated. 8. The arguments of the learned counsel for the parties were heard at length. The case diary was perused with the help of Investigating Officer, Ms. Chanchal Mishra, Assistant Commissioner of Police (West), Jodhpur Metropolitan and Additional Advocate General, Shri Anand Purohit. 9. The prosecutrix was studying in Asa Ram Gurukul at Chhindwara. The present petitioner is the Hostel Warden of the Gurukul. Before April also, she was working an institution run by Asa Ram. Co-accused Sharad is the Director of the said institutionadn Shiva is the devotee of Asa Ram and used to live with him. Prakash is the cook at the Ashram where the incident took place. The petitioner fell ill. Accordingly, the petitioner called the parents of the prosecutrix and told them that she was required to be treated by a doctor. Accordingly, her parents reached Gurukul on 8.8.2013. The parents met Shilpi on 9.8.2013 and at that time, Shilpi told them that the prosecutrix was under the spell of evil spirits and therefore, they should take her to Asa Ram wherever he was. Accordingly, they were sent to meet Asa Ram. The prosecutrix along with the parents reached the given address i.e. village Manai, which is 30-35 kms. away from the Jodhpur to meet Asa Ram. On the intervening night of 15/16.7.2013 Asa Ram called her to his Kutia. It is here that he committed the alleged offence. Accordingly, they were sent to meet Asa Ram. The prosecutrix along with the parents reached the given address i.e. village Manai, which is 30-35 kms. away from the Jodhpur to meet Asa Ram. On the intervening night of 15/16.7.2013 Asa Ram called her to his Kutia. It is here that he committed the alleged offence. FIR was registered on 20.8.2013. An explicit detail of the incident has been related by the prosecutrix. Thereafter, the statement of the prosecutrix was recorded under Section 161 of the Cr.P.C. on 22.8.2013. In her statement under Section 161 of the Cr.P.C., she gave out the detail as to how the present petitioner had led her to believe that she was possessed with evil spirit. In order to make her believe that she was possessed with evil spirits, the petitioner even went down to the extent of showing her another girl of the same Gurukul, who was made to put up a show of being under the spell of evil spirits. Instead of taking her to the doctor, she was told to perform religious rites (anusthan). She was not allowed to sleep for the whole night and was forced to read the Mantra. The petitioner even convinced her parents that the prosecutrix was indeed possessed with evil spirits. She told them that they should take her to Asa Ram Bapu and she also arranged their meeting with him through other co-accused. The statement of the prosecutrix was recorded under Section 164 of the Cr.P.C. on 20.8.2013, in which she corroborated her statement made under Section 161 and the statement on the basis of which FIR was registered. Her stand in all the statements is consistent. 10. The date of birth of the prosecutrix as mentioned in the High School certificate Examination (10+2) 2012 issued by the board of Secondary Education, Madhya Pradesh, Bhopal is 4.71997. The petitioner is the Hostel Wardenof the Gurukul where the prosecutrix was lodged. The petitioner was responsible for the security and well being of the prosecutrix. At that point of time, the prosecutrix was under her care and custody. The petitioner is not a doctor. Hence, it is not understood as to how she came to the conclusion that the prosecutrix has no other health problem except that she was possessed by evil spirits and required to be treated by Asa Ram. 11. At that point of time, the prosecutrix was under her care and custody. The petitioner is not a doctor. Hence, it is not understood as to how she came to the conclusion that the prosecutrix has no other health problem except that she was possessed by evil spirits and required to be treated by Asa Ram. 11. The argument of the learned counsel for the petitioner that the petitioner has joined the investigation is denied by the prosecution. It is stated that the petitioner was only questioned at the first instance, when the complaint was registered. She was specifically asked as to whether she was in touch with the other co-accused i.e. Shiva, Asa Ram etc. or not. The petitioner replied in the negative. However, the call details of the co-accused Shiva, Prakash, Sharad and of the petitioner were obtained. As per the said call details, the petitioner was regularly in touch with the other co-accused from 6.8.2013 to 16.8.2013, thus, raising the suspicion that she as in connivance with them, necessitating custodial interrogation. The argument of learned counsel for the petitioner that Asa Ram had never before seen the prosecutrix and hence, the question of sending the prosecutrix to him at his behest does not arise is rebutted by the prosecution because as per the statement of the prosecutrix under Section 161 of the Cr.P.C., the petitioner met Asa Ram along with the prosecutrix in the month of May-June, 2012 at Haridwar. 12. There is no dispute with the prosecution of law as laid down by the judgments relied upon by the learned counsel for the petitioner. However, every case has to be dealt with on its own facts and no set principle or straight jacket formula can be applied, especially while dealing with bail matters where only prima facie view can be taken on the basis of the facts presented before the Court. 13. Hon'ble the Apex Court in the case of Jai Prakash Singh vs. The State of Bihar & Anr. etc., reported in (2012) 4 SCC 379 while dealing with substantial difference between Section 438 and 439 of the Cr.P.C. cancelled the anticipatory bail granted to the respondent therein by observing as under: "13. There is no substantial difference between Section 438 and 439 Cr.P.C. so far as appreciation of the case as to whether or not a bail is to be granted, is concerned. There is no substantial difference between Section 438 and 439 Cr.P.C. so far as appreciation of the case as to whether or not a bail is to be granted, is concerned. However, neither anticipatory bail nor regular bail can be granted as a matter of rule. The anticipatory bail being an extraordinary privilege should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after proper application of mind to decide whether it is a fit case for grant of anticipatory bail." 14. Hon'ble the Supreme Court in the case of CBI vs. Anil Sharma, reported in (1997) 7 SCC 187 while dwelling on the issue of necessity of custodial interrogation observed as under: "6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this, effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders." 15. In the case at hand, no doubt, the petitioner too is a young lady. However, taking into account the seriousness of the offence and the role attributed to her by the prosecutrix in her statement under Section 161 and 164 Cr.P.C. coupled with the call details between her and other co-accused, it would not be proper to grant the concession of anticipatory bail to the petitioner when the investigation is still incomplete. 16. In view of the above discussion, this Court does not deem it proper to enlarge the accused-petitioner on anticipatory bail. The bail application is, accordingly, dismissed. 16. In view of the above discussion, this Court does not deem it proper to enlarge the accused-petitioner on anticipatory bail. The bail application is, accordingly, dismissed. However, nothing said herein above shall have any bearing on the merits of the case.