Research › Search › Judgment

Rajasthan High Court · body

2014 DIGILAW 437 (RAJ)

Saint Shri Asharam Bapu v. State of Rajasthan

2014-02-10

NIRMALJIT KAUR

body2014
ORDER This is second bail application under Section 439 Cr.P.C. The petitioner is seeking bail in Session Case No.152/2013 arising out of FIR No.122/2013, P.S. Mahila Thana (West) Jodhpur and 0/2013, P.S.Kamla Market Delhi, pending trial in the Court of Sessions Judge, Jodhpur for offence under Sections for the offence under Sections 342, 376(2)(F), 376(D), 370(4), 354A, 506, 509/34, 120-B of the IPC, Sections 23 & 26 of the Juvenile Justice (Care and Protection of Children) Act, 2000 and Section 5(F)/6, 5 (G)/6, 7/8 of the Protection of Children from Sexual Offences Act, 2012. The first bail application of the petitioner was dismissed on 01.10.2013 by a detailed order. The second bail application has been filed on the ground that challan has since been filed and that the earlier bail was dismissed at the point of time when the investigation of the case registered against the petitioner was in progress. Learned Senior Counsel, Shri Ram Jethmalani, addressed arguments on 07.01.2014 as well as on 13.01.2014, which were continued by Mr.C.V.Nagesh, Senior Counsel, on the subsequent date and finally concluded by handing over written submissions on 03.02.2014. It was argued that the material collected does not make out a serious offence for which a sentence of imprisonment exceeding five years can be imposed upon the petitioner. The allegations alleged against the petitioner are under three different enactments. Firstly, under Sections 23 and 26 of the Juvenile Justice (Care and Protection of Children) Act, 2000. Under these Sections, a child should be procured for the purpose of any hazardous employment and the offence should be committed by a person who is in actual charge of or control over the child, whereas, there is no evidence available on record that the prosecutrix, who is a child, was procured for the purpose of any employment or that the petitioner was the person having the actual charge of or control over the child so assaulted. Secondly, accusations are under the provisions of Protection of Children from Sexual Offences Act, 2012 of having committed the act of aggravated penetrative sexual offence. Secondly, accusations are under the provisions of Protection of Children from Sexual Offences Act, 2012 of having committed the act of aggravated penetrative sexual offence. Under Section 6 of the said Act, aggravated penetrative sexual assault is attributable to certain class of persons who have committed the act of penetrative sexual assault; they being a police officer, member of the armed force or security forces, a public servant, a person on the management or on the staff of jail, remand home, protection home, observation home, or other place of custody or care and protection established by or under any law for the time being in force, management or staff of a hospital and the management or staff of an educational institution or religious institution, whereas, in the present case, the prosecutrix was a student of Gurukul, which is run by a trust and therefore, the petitioner has got nothing to do with the institution where the prosecutrix was studying and the said offence was not committed in such an institution. Further, from the several statements of the prosecutrix, it is evident that there is no allegation of penetration. Thus, from the statement of the prosecutrix, if taken on face value, the only conclusion one can be arrived, is that her modesty came to be outraged and nothing else, for which the maximum sentence that could be imposed is for a period extending upto five years only. The offence was not so serious that would disentitle the petitioner to have the benefit of bail. Thirdly, the petitioner is alleged to have committed offences which are made penal under Sections 342, 354-A, 506, 509 and under Section 376(d)(f) and 370(4) of the Indian Penal Code. Section 375 of the Indian Penal Code defines “Rape”. “Rape” as defined under Section 375 of the Indian Penal Code is in para-materia with the definition of penetrative sexual assault as defined under Section 3 of the Protection of Children from Sexual Offences Act. While dealing with the penetrative sexual assault, it is submitted that the act which is attributed to the petitioner as could be made out from the statements of the prosecutrix, does not even remotely indicate that the petitioner has, on the person of the prosecutrix committed an act of penetrative sexual assault. While dealing with the penetrative sexual assault, it is submitted that the act which is attributed to the petitioner as could be made out from the statements of the prosecutrix, does not even remotely indicate that the petitioner has, on the person of the prosecutrix committed an act of penetrative sexual assault. Further, Section 376(2) of the IPC is referable to certain class of persons and the petitioner does not fall under the category of such class who is in the management or of the staff of a jail, remand home, or other place of custody. Learned counsel for the petitioner went on to argue that as regard the offence punishable under Section 370(4) of the Indian Penal Code, it was neither the case of the prosecution nor the grievance of the victim that the accused had recruited or transported or harboured or transferred or received the victim for exploitation. Learned Senior Counsel, Mr.Ram Jethmalani, further submitted that FIR No. 122/2013, P.S. Mahila Thana (West), Jodhpur is not the actual FIR. The FIR was registered on the statement of the prosecutrix. Her first complaint made on 19.08.2013 is being suppressed. There are discrepancies in her statements made under Section 161 of the Cr.P.C. on 20.08.2013 and subsequent to 21.08.2013 before the Jodhpur Police. It was pleaded that the petitioner is aged around 76 years. He is old and infirm. He is suffering from more than one disease and needs emergency treatment by specialized doctors. Further, the investigation having been completed and result of the investigation having been filed, the prosecution cannot now take the plea that the petitioner will interfere with the course of administration of justice in any manner and that he cannot be blamed for the agitation by his disciples and the same is the handwork of certain persons who are out to tarnish the image of the petitioner. Reliance was placed on the judgment rendered by Hon'ble the Apex Court in the case of Gurbuksh Singh Sibbia etc. Vs. State of Punjab, reported in (1980)3 Supreme Court Reports 383 to contend that it is “indisputable” that bail is not to be withheld as a punishment. Reliance was also placed on the judgment rendered by Hon'ble the Apex Court in the case of Sanjay Chandra Vs. Vs. State of Punjab, reported in (1980)3 Supreme Court Reports 383 to contend that it is “indisputable” that bail is not to be withheld as a punishment. Reliance was also placed on the judgment rendered by Hon'ble the Apex Court in the case of Sanjay Chandra Vs. Central Bureau of Investigation, reported in (2012) 1 Supreme Court Cases 40 in which reliance was placed on the concept and philosophy of bail discussed by Hon'ble the Apex Court in the case of Vaman Narain Ghiya Vs. State of Rajasthan [reported in (2009)2 SCC 281 ], which reads as under:- “8. The law of bail, like any other branch of law, has its own philosophy, and occupies an important place in the administration of justice and the concept of bail emerges from the conflict between the police power to restrict liberty of a man who is alleged to have committed a crime, and presumption of innocence in favour of the alleged criminal. An accused is not detained in custody with the object of punishing him on the assumption of his guilt.” Dr.Pushpendra Singh Bhati, learned Additional Advocate General vehemently opposed the bail and submitted that the first bail application of the petitioner stands dismissed. The first bail application of the petitioner was rejected by this Court on merits. The filing of the charge-sheet is not a change in the circumstances. Reliance was placed on the judgment rendered by Chhattisgarh High Court in the case of Manoj Kumar Sharma Vs. State of Chhattishgarh, in Misc. Criminal Case No.507 of 2010, decided on 8.3.2010 and the judgment rendered by Gujarat High Court in the case of Meghabhai Varjangbhai Vs. State of Gujarat, in Misc. Application (for Cancellation of bail) No.17585/2012, decided on 1.3.2013 wherein reliance was placed on the judicial pronouncement of the Hon'ble Apx Court as under:- “It is a well settled principle of law that when the successive application comes before the Court, the Court would be very conscious while considering the successive bail application. 8. As held by the Apex Court in the State of Maharashtra v. Captain Buddhikota Subha Rao (supra) that successive bail application can be entertained by the Court when substantial change is established by the accused, which would entitle him for getting bail in successive bail application. 8. As held by the Apex Court in the State of Maharashtra v. Captain Buddhikota Subha Rao (supra) that successive bail application can be entertained by the Court when substantial change is established by the accused, which would entitle him for getting bail in successive bail application. The Court should not pass the order of releasing him on bail in successive bail application merely establishing some cosmetic change between time gap of two applications. There should be drastic change during the period between two applications, which would entitle the accused for bail. 9. In case of Kalyan Chandra Sarkar (supra), the Honble Apex Court has held that the Court before entertaining such successive bail application must consider the reasons and grounds on which the earlier bail applications were rejected. When a successive bail application comes before the Court, it is the duty of the Court to record that what are the fresh grounds, which persuade it to take a view different from the one taken in the earlier application. In the case of Rajubhai Pithabhai Vala (supra), this Court by relying upon the numerous judgments rendered by the Apex Court, has held that successive bail application must be considered with care and caution and not in all cases. The discretion should be exercised in very good and deserving cases quite sparingly and not as a matter of course.” I have heard the learned counsel for the parties and perused the case-diary as well as gone through their written submissions. The facts and the statements of the prosecutrix under Sections 161 & 164 of the Cr.P.C. need not be discussed in the present bail application as the same have been dealt with in detail in the first bail application. This is second bail application. The first bail application of the petitioner was rejected by this Court on merits vide order dated 01.10.2013. It is true that there is no change in the circumstances except that the charge-sheet has been filed. This is second bail application. The first bail application of the petitioner was rejected by this Court on merits vide order dated 01.10.2013. It is true that there is no change in the circumstances except that the charge-sheet has been filed. The argument raised by learned Senior Counsel in the present case that the allegation of rape is not corroborated by medical evidence and also the argument that even if the allegations are taken on their face value and the accusations as levelled under the three different enactments of Juvenile Justice Act and Protection of Children from Sexual Offences Act, 2012 as also under the Indian Penal Code are not made out, was also dealt with while dismissing the first bail application. In any case, since the learned Senior Counsel has once again greatly stressed that the offence as alleged is not made out, it has become necessary to go over it once again. Penetrative sexual assault as defined under Section 3 of the Protection of Children from Sexual Offences Act reads as under:- “3. Penetrative sexual assault.-A person is said to commit “penetrative sexual assault” if (a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or (b) he inserts, to any extent, any object of a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person: or (c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person: or (d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.” In the instant case, the prosecutrix alleged that petitioner had tried to force her to perform oral sex. Thus, the said allegation is covered under the definition of penetrative sexual assault given in Section 3(d) of the aforesaid Act as well as under Section 375 (A) IPC of the Amended Act of 2013. Thus, the said allegation is covered under the definition of penetrative sexual assault given in Section 3(d) of the aforesaid Act as well as under Section 375 (A) IPC of the Amended Act of 2013. The argument that the prosecutrix was not under the control or custody of the petitioner or that the said incident did not happen in the institution where she was studying, too does not help the petitioner. The prosecutrix was studying in an institution run by trust, of which, the petitioner was Managing Trustee. The offence took place at Jodhpur in an ashram alleged to be a place used for giving religious discourse to public at large belongs to the petitioner. Charge-sheet has been filed under Section 5(F)/6, 5(G)/6, 7/8 of the Protection of Children from Sexual Offence Act. Section 5(F) reads as under:- “5. Aggravated penetrative sexual assault.- (a) ..... ...... ..... (b) ..... ...... ..... (c) ..... ...... ..... (d) ..... ...... ..... (e) ..... ...... ..... (f) Whoever being on the management or staff of an educational institution or religious institution, commits penetrative sexual assault on a child in that institution;” For the offence above, the punishment is prescribed under Section 6, which is for a term not less than 10 years and may extend to imprisonment for life . The prosecution has collected evidence to show that the prosecutrix was brought to the religious place under the pretext of treating her and freeing her from all evil spirits resulting into offence under Section 370(4). I have already said in my earlier order that the offence becomes more severe and invites more serious repercussions, if it is committed by a person whose public image is of a god man, a saint, who is worshiped by the victim's own family and committed the same under the garb of giving 'treatment'. The prosecutrix herein is minor and her stand is consistent. The statement of the prosecutrix under Section 164 of the Cr.P.C. cannot be ignored in view of the provision of Section 114-A of the Indian Evidence Act, 1872. There is no reason for her to make any false allegation against the petitioner. There is no dispute with the provision of law that it would be improper for any court to refuse bail to a person who is undergoing trial only for the purpose of giving him a taste of imprisonment as a lesson. There is no reason for her to make any false allegation against the petitioner. There is no dispute with the provision of law that it would be improper for any court to refuse bail to a person who is undergoing trial only for the purpose of giving him a taste of imprisonment as a lesson. However, we can also not lose sight of the judgment rendered by Hon'ble the Apex Court in the case of Babu Singh Vs. State of U.P., reported in 1978 SCC (Cri) 133 and duly relied upon in the case of Sanjay Chandra's case (supra) as under:- “16. Thus the legal principle and practice validate the Court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is applying for bail to find whether he has a bad record--particularly a record which suggests that he is likely to commit serious offences while on bail. In regard to habituals, it is part of criminological history that a thoughtless bail order has enabled the bailee to exploit the opportunity to inflict further crimes on the members of society. Bail discretion, on the basis of evidence about the criminal record of a defendant, is therefore not an exercise in irrelevance.” Similarly, in the case of Chaman Lal Vs. State of U.P. & Another, reported in 2004 Supreme Court Cases (Cri) 1974, guidelines are laid down for considering certain circumstances before granting bail. Para 9 of the same reads as under:- “9. There is a need to indicate in the order, reasons for prima facie concluding why bail was being granted particularly where an accused was charged of having committed a serious offence. It is necessary for the courts dealing with application for bail to consider among other circumstances, the following factors also before granting bail, they are: 1. The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence; 2. Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; 3. Prima facie satisfaction of the Court in support of the charge.” Thus, while granting bail, the Court is required to exercise its jurisdiction in a judicial manner and not as a matter of course. Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; 3. Prima facie satisfaction of the Court in support of the charge.” Thus, while granting bail, the Court is required to exercise its jurisdiction in a judicial manner and not as a matter of course. In view of the above discussion, besides the gravity of the offence, the vital fact which needs to be gone into is the likelihood of the petitioner giving out threats and inducement to the witnesses and tampering with the evidence. Dr.Pushpendra Singh Bhati, learned Additional Advocate General submitted that the prosecutrix and her family members are being threated by the supporters of Asa Ram. As a result, she and her family members are under constant security. Learned Additional Advocate General has placed on record the copy of following FIRs registered against the supporters of Asa Ram for trying to stop the police from performing its duty and creating law and order problem:- S. No. Particulars of FIRs Complainant Against Offences 1. FIR No.43 dt 18.1.2014, P.S. Udai Mandir, Jodhpur Khaneya Lal Prajapat Supporters of Asa Ram U/Ss 143/341/323/504 IPC 2. FIR No.455 dt. 1.9.02013 P.S. Mahamandir Jodhpur Kamal Singh, Circle Inspector Rajesh Sharma and 14 Ors U/Ss 143/341/323/353/332/225/120-B of the IPC and U/s 3 of PDPP Act. 3. FIR No.101 dt. 31.8.2013, P.S. Jodhpur West. Bhawani Singh S/o Prabhu Singh Bharat Bhai & 10 others. U/S 147/148/149/307/395/42 7 of the IPC. Following complaints under Section 151 of the Cr.P.C. are registered against a large number of supporters of Asa Ram:- S. No. Particulars of Complaint Police Station Number of persons arrested/ restrained 1. 359/2014, dt. 17.1.2014 Udai Mandir, Jodhpur (Metro) 12 persons 2. Nil (113/228), dt. 21.12.2013 do 16 persons 3. 199/2014, dt. 8.1.2014 do 4 persons 4. 1119/2013 dt. 19.12.2013 do 13 persons 5. 11189/2013 dt. 19.12.2013 do 14 persons 6. 11190/2013 dt. 19.12.2013 do 13 persons 7. 10411/2013 dt. 16.11.2013 do 02 persons 8. 10410/2013, dt. 16.11.2013 do 21 persons 9. 16/2013 Boranda, Jodhpur 13 persons 10. 357/2014, dt. 171.2014 Udaimadir Jodhpur 09 persons 11. 355/2014, dt. 17.1.2014 do 17 persons 12. 354/2014, dt. 17.1.2014 do 10 persons 13. 358/2014, dt. 17.1.2014 do 08 persons 14. 176/2013, dt. 11190/2013 dt. 19.12.2013 do 13 persons 7. 10411/2013 dt. 16.11.2013 do 02 persons 8. 10410/2013, dt. 16.11.2013 do 21 persons 9. 16/2013 Boranda, Jodhpur 13 persons 10. 357/2014, dt. 171.2014 Udaimadir Jodhpur 09 persons 11. 355/2014, dt. 17.1.2014 do 17 persons 12. 354/2014, dt. 17.1.2014 do 10 persons 13. 358/2014, dt. 17.1.2014 do 08 persons 14. 176/2013, dt. 16.11.2013 Mahamandir, Jodhpur 21 persons Besides the above, the principal of the school, who has issued the certificate verifying the date of birth of the prosecutrix, has also registered FIR No.220/2013 dt. 21.9.2013 at Shahjahanpur (U.P.) alleging that he was being threatened with dire consequences. Mahendra Chawla, one of the prosecution witness, has also submitted a complaint before the Investigating Officer Ms. Chanchal Mishra, ACP, Jodhpur stating that he is being threatened with false implication in various cases, in case, he gives evidence against Asa Ram. It is submitted that another FIR has been registered in the State of Gujarat against the son of the petitioner for trying to give bribe of 13 crores to the police. In the said FIR, the allegations are also alleged against the present petitioner. A threatening letter has also been received by Mr.Manoj Vyas, District & Sessions Judge who is dealing with the case in the month of September, 2013. The reports with respect to threats being received by witness-Ajay Kumar and one Ajay Gautam (applicant in PIL NO.11372/2013 in which he sought investigation of this case from CBI) have also been placed on record. Apprehension is expressed by the State and the learned counsel for the complainant that the petitioner, who has both the backing of a large following and money power, is likely to use the same to win over the witnesses and tamper with evidence. Moreover, the right of the petitioner for speedy trial as guaranteed to an accused for protection of personal liberty under Article 21 of the Constitution of India stands safeguarded by the Coordinate Bench of this Court in S.B.Criminal Misc. Bail Application No.8609/2013 (Shiva @ Savaram Vs. State of Rajasthan) and S.B.Criminal Misc. Bail Application No.8610/2013 (Sanchita Gupta @ Shilpi Vs. Moreover, the right of the petitioner for speedy trial as guaranteed to an accused for protection of personal liberty under Article 21 of the Constitution of India stands safeguarded by the Coordinate Bench of this Court in S.B.Criminal Misc. Bail Application No.8609/2013 (Shiva @ Savaram Vs. State of Rajasthan) and S.B.Criminal Misc. Bail Application No.8610/2013 (Sanchita Gupta @ Shilpi Vs. State of Rajasthan) vide common order dated 8.11.2013 directing the trial court to proceed with the trial on day to day basis till its conclusion in view of Section 309 of the Cr.P.C. amended by the Parliament vide the Criminal Law (Amendment) Bail, 2012 i.e. Bill No.63 of 2013 that in a case of rape, every trial must be concluded within a period of two months from the date of filing the charge-sheet while observing as under:- “One of the accused in the present case, is perceived as a Godman and wields a lot of influence as he is having a very large following. As to who can be termed influential in public life, Law Commission in its report observed as under : “3. Influential persons in public life – illustrative list. The question whether the term ‘influential person in public life’ needs to be defined has engaged the attention of the Law Commission. The Commission feels that such definition is not feasible and it does not serve any purpose. The influential persons are not merely those who are holding or who have held public offices; even their henchmen and close relations, the rich and powerful and men with muscle power having links with one or the other political party are quite influential in their own way and they have the potential to create stumbling blocks for smooth investigation and effective trial. Moreover, it is not desirable to give too much of an expansive meaning to this term so as to 13 include elected representatives at the Panchayat level or all the office-bearers of various political parties. To specify with precision the term ‘influential person in public life’ is a complex task. It is a wide and nebulous term. Moreover, it is not desirable to give too much of an expansive meaning to this term so as to 13 include elected representatives at the Panchayat level or all the office-bearers of various political parties. To specify with precision the term ‘influential person in public life’ is a complex task. It is a wide and nebulous term. The whole object of specifying influential persons in public life as a category is to enable the Police and Judicial Officers concerned to keep track of cases involving such persons and to endeavour avoidance of delays and bottlenecks in the way of speedy investigation and trial.” It is to be noted that in the State of Rajasthan, Special Courts have been created for trial of offences against woman. A court too, to this effect has also been established at Jodhpur. Thus noticing the necessity of speedy trial, this Court directs the trial court to proceed with this case from 16.11.2013 onwards and decide the issue whether cognizance is to be taken against the accused or not and if so, for what offences ? The trial court shall without any interruption and hindrance proceed with the trial on day to day basis till its conclusion so that the speedy trial is ensured.” In view of the above, this Court is of the opinion that enlarging the petitioner on bail would impede the progress of the trial. Moreover, as stated earlier, the prosecutrix and her family members, who are presently living under constant threat and fear, require protection and re-assurance. Hence, this Court is not inclined to release the petitioner on bail. The second bail application is, accordingly, dismissed.