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2019 DIGILAW 270 (GUJ)

Roshanbhai Hasanbhai Rangsaj v. State of Gujarat

2019-03-27

A.P.THAKER

body2019
JUDGMENT : A P Thaker, J. Admit. Ms.Moxa Thakkar, learned Additional Public Prosecutor waives service of notice of admission for respondent No.1 - State. 2. This is an appeal filed under Section 14(A)(2) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter be referred to as "the Atrocity Act" for short) at the instance of the appellants - original accused for bail in connection with the FIR being I - C.R.No.03/2019 registered with Aamletha Police Station, District: Narmada for the offences punishable under Sections 363, 366 and 376 of the Indian Penal Code and Section 3(2)(v-a), 3(1)(w)(i), 3(2)(5) of the Atrocity Act and Sections 3, 4, 12, 16 and 17 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter be referred to as "the POCSO Act"). 3. As per the allegations made in the complaint, the present appellants are named in the FIR for the allegation that they have abetted in the offence committed by the main accused by keeping them at their residence. It is further contended that they have been arrested on 28.02.2019 and this is an appeal for regular bail before filing of the charge-sheet. It is contended that they have preferred bail application being Criminal Misc. Application No.66 of 2019 before the District and Sessions Court, Rajpipla which came to be rejected vide order dated 08.03.2019 by the learned Additional Sessions Judge, Rajpipla. It is also contended that they are innocent and they have been falsely implicated in the alleged offence. It is further contended that appellant No.1 is aged about 25 years and appellant No.2 is aged about 45 years and the appellant No.1 is brother and appellant No.2 is mother of the main accused. It is also contended that the story put forward by respondent No.2 is not believable insofar as the only role which is alleged is regarding the abetment and except that there is no other offence is said to have been committed by the present appellants. It is contended that the appellants are ready and willing to abide by all conditions which may be imposed by this Court. They have prayed to release them on bail. 4. Heard Mr.Apurva Kapadia, learned advocate for the appellants and Ms.Moxa Thakkar, learned Additional Public Prosecutor for respondent No.1 - State. Though served, nobody has appeared on behalf of respondent No.2. 5. They have prayed to release them on bail. 4. Heard Mr.Apurva Kapadia, learned advocate for the appellants and Ms.Moxa Thakkar, learned Additional Public Prosecutor for respondent No.1 - State. Though served, nobody has appeared on behalf of respondent No.2. 5. Mr.Apurva Kapadia, learned advocate for the appellants has vehemently submitted that the present appellant No.1 is the brother and appellant No.2 is the mother of the main accused and the role attributed to the present appellants are to give shelter to the main accused and the victim. It is submitted that being brother and mother, the appellants have given only shelter to their brother and son which cannot be said that they have done any wrongful act. It is also submitted that the charge-sheet has been filed, but it has not been narrated in the present appeal and by mistake it has been narrated that the charge-sheet is not filed. It is also submitted that the filing of the charge-sheet will be in favour of the appellants and the Court should not take hyper and technical view. It is further submitted that the High Court and the Sessions Court has concurrent jurisdiction under Section 439 of the Criminal Procedure Code and, therefore, even during the pendency of the application / appeal, if the charge-sheet is filed, it will not make any difference. He has submitted that the charge-sheet is being filed, bail will be ruled and jail will be exceptional. He has further submitted that keeping the appellants in jail will not meet with the end of justice. He has submitted that there is no any criminal antecedent of the present appellants. 5.1 Mr.Kapadia, learned advocate for the appellants has relied upon the decision in the case of Rakesh Kumar Paul Vs. State of Assam, (2017) 15 SCC 67 for his preposition that in the matters of personal liberty, the High Court should not be too technical and must learn in favour of personal liberty. 5.2 Mr.Kapadia, learned advocate for the appellants has relied upon the decision in the case of Sundeep Kumar Bafna Vs. State of Maharashtra and another, (2014) 16 SCC 623 a provision requires pragmatic, positive facilitative interpretation has been given to Section 439 of the Criminal Procedure Code and there is concurrent powers with the Sessions Court and the High Court under Section 439 of the Criminal Procedure Code. State of Maharashtra and another, (2014) 16 SCC 623 a provision requires pragmatic, positive facilitative interpretation has been given to Section 439 of the Criminal Procedure Code and there is concurrent powers with the Sessions Court and the High Court under Section 439 of the Criminal Procedure Code. That there are no restrictions on the High Court to entertain the application for bail provided the accused is in custody. 5.3 He has submitted that there is no provision in law that when the bail application is filed perfunctorily to be filed before the charge-sheet and during the pendency of that application, the charge-sheet is filed then the accused should first go to the Sessions Court and then prefers subsequent bail application after filing of the charge-sheet before the High Court. He has, therefore, urged to allow the appeal and enlarge the appellants on bail. 5.4 He has further relied upon the following decisions of the Coordinate Bench of this Court. 1. In the case of Sanjay Gunvantbhai Joshi Vs. State of Gujarat, rendered in Criminal Appeal No.1030 of 2018 dated 24.08.2018. 2. In the case of Kishanbhai Rajabhai Co. Ptel Vs. State of Gujarat, rendered in Criminal Appeal No.2030 of 2018 dated 21.01.2019. 3. In the case of Guddukumar Kalicharan Prasad (Patel) Vs. State of Gujarat, rendered in Criminal Appeal No.126 of 2019 dated 01.02.2019. 6. Per contra, Ms.Moxa Thakkar, learned Additional Public Prosecutor for respondent No.1 - State has submitted that even during the pendency of the bail application before the trial Court, the charge-sheet was filed, but the trial Court has not noted this fact as it was decided on the bail. She has submitted that when the application was filed, the charge-sheet was already filed before the trial Court and, therefore, considering the practice and procedure, the application should be rejected on the ground that the charge-sheet has been filed and this fact has been cleared in the bail application. She has submitted that the appellants may withdraw the appeal with a liberty to file before the trial Court as the chargesheet has been filed after the decision by the trial Court. She has submitted that the appellants may withdraw the appeal with a liberty to file before the trial Court as the chargesheet has been filed after the decision by the trial Court. She has further submitted that now, the charge-sheet has been filed and as per prima facie evidence, the victim girl is below 17 years and it was the duty of the appellants not to give shelter to their relative, who is brother and son of the respective appellants and they ought to have sent the victim back immediately and not to give separate room to the accused and the victim girl. She has referred to the statement of the victim and submitted that considering the offence of abetment in rape upon a minor, this appeal is required to be dismissed. 7. In the case of Rakesh Kumar Paul Vs. State of Assam (supra), the Apex Court in paras-40 and 41 has held and observed as under: - 40. ......In our opinion, in matters of personal liberty, we cannot and should not be too technical and must lean in favour of personal liberty..... 41. We take this view keeping in mind that in matters of personal liberty and Article 21 of the Constitution, it is not always advisable to be formalistic or technical. The history of the personal liberty jurisprudence of this Court and other constitutional courts includes petitions for a writ of habeas corpus and for other writs being entertained even on the basis of a letter addressed to the Chief Justice or the Court. 7.1 In the case of Sundeep Kumar Bafna Vs. State of Maharashtra and another (supra), the Apex Court has held and observed in paras No.24, 25 and 26 as under:- 24. In this analysis, the opinion in the impugned Judgment incorrectly concludes that the High Court is bereft or devoid of power to jurisdiction upon a petition which firstly pleads surrender and, thereafter, prays for bail. The High Court could have perfunctorily taken the Appellant into its custody and then proceeded with the perusal of the prayer for bail; in the event of its coming to the conclusion that sufficient grounds had not been disclosed for enlargement on bail, necessary orders for judicial or police custody could have been ordained. A Judge is expected to perform his onerous calling impervious of any public pressure that may be brought to bear on him. A Judge is expected to perform his onerous calling impervious of any public pressure that may be brought to bear on him. The Conundrum of Cognizance, Committal & Bail 25. We have already noted in para 8 the creation by the CrPC of a hiatus between the cognizance of an offence by the Magistrate and the committal by him of that offence to the Court of Session. Section 190 contemplates the cognizance of an offence by a Magistrate in any of the following four circumstances: (i) upon receiving a complaint of facts; or (ii) upon a police report of such facts; or (iii) upon information received from any person other than a police officer, or (iv) upon the Magistrates own knowledge. Thereafter, Section 193 proscribes the Court of Session from taking cognizance of any offence, as a Court of original jurisdiction, unless the case has been committed to it by a Magistrate; its Appellate jurisdiction is left untouched. Chapter XVI makes it amply clear that a substantial period may inevitably intervene between a Magistrate taking cognizance of an offence triable by Sessions and its committal to the Court of Session. Section 204 casts the duty on a Magistrate to issue process; Section 205 empowers him to dispense with personal attendance of accused; Section 206 permits Special summons in cases of petty offence; Sections 207 and 208 obligate the Magistrate to furnish to the accused, free of cost, copies of sundry documents mentioned therein; and, thereafter, under Section 209 to commit the case to Sessions. What is to happen to the accused in this interregnum; can his liberty be jeopardized! The only permissible restriction to personal freedom, as a universal legal norm, is the arrest or detention of an accused for a reasonable period of 24 hours. Thereafter, the accused would be entitled to seek before a Court his enlargement on bail. In connection with serious offences, Section 167 CrPC contemplates that an accused may be incarcerated, either in police or judicial custody, for a maximum of 90 days if the Charge Sheet has not been filed. An accused can and very often does remain bereft of his personal liberty for as long as three months and law must enable him to seek enlargement on bail in this period. An accused can and very often does remain bereft of his personal liberty for as long as three months and law must enable him to seek enlargement on bail in this period. Since severe restrictions have been placed on the powers of a Magistrate to grant bail, in the case of an offence punishable by death or for imprisonment for life, an accused should be in a position to move the Courts meaningfully empowered to grant him succour. It is inevitable that the personal freedom of an individual would be curtailed even before he can invoke the appellate jurisdiction of Sessions Judge. The Constitution therefore requires that a pragmatic, positive and facilitative interpretation be given to the CrPC especially with regard to the exercise of its original jurisdiction by the Sessions Court. We are unable to locate any provision in the CrPC which prohibits an accused from moving the Court of Session for such a relief except, theoretically, Section 193 which also only prohibits it from taking cognizance of an offence as a Court of original jurisdiction. This embargo does not prohibit the Court of Session from adjudicating upon a plea for bail. It appears to us that till the committal of case to the Court of Session, Section 439 can be invoked for the purpose of pleading for bail. If administrative difficulties are encountered, such as, where there are several Additional Session Judges, they can be overcome by enabling the accused to move the Sessions Judge, or by further empowering the Additional Sessions Judge hearing other Bail Applications whether post committal or as the Appellate Court, to also entertain Bail Applications at the pre-committal stage. Since the Magistrate is completely barred from granting bail to a person accused even of an offence punishable by death or imprisonment for life, a superior Court such as Court of Session, should not be incapacitated from considering a bail application especially keeping in perspective that its powers are comparatively unfettered under Section 439 of the CrPC. 26. In the case in hand, we need not dwell further on this question since the Appellant has filed an application praying, firstly, that he be permitted to surrender to the High Court and secondly, for his plea to be considered for grant of bail by the High Court. 26. In the case in hand, we need not dwell further on this question since the Appellant has filed an application praying, firstly, that he be permitted to surrender to the High Court and secondly, for his plea to be considered for grant of bail by the High Court. We say this because there are no provisions in the CrPC contemplating the committal of a case to the High Court, thereby logically leaving its powers untrammelled. There are no restrictions on the High Court to entertain an application for bail provided always the accused is in custody, and this position obtains as soon as the accused actually surrenders himself to the Court. 8. Now admittedly in this case, the provision of the POCSO Act has been involved. 9. Admittedly, if the provision of the POCSO Act is invoked then the provision of Section 439 of the Criminal Procedure Code will be applicable. But in the case of offence registered under the provision of the Atrocity Act which is a special Act wherein the provision for bail is specifically provided and, therefore, the general rules of the Criminal Procedure Code will not be applicable in the case of the offence registered under the Atrocity Act. As per the provision of the Atrocity Act, the appeal lies, against the order of granting or rejecting the bail by the trial Court, before the High Court. Thus, there is deviation under the provision of the Atrocity Act so far as it relates to the concurrent jurisdiction of Section 439 of the Criminal Procedure Code. However, once the bail application is made before the trial Court under the provision of the Atrocity Act, then for conducting the bail application under Section 439 of the Criminal Procedure Code will apply. But at the same time, in view of the special provision contained in the Atrocity Act one cannot directly approach the High Court under Section 439 of the Criminal Procedure Code on the basis that there is concurrent jurisdiction with the Sessions Court and the High court. 10. It is pertinent to note that Section 31 of the POCSO Act provides that the provisions of the Criminal Procedure Code including the provisions of the bail and bonds will apply to the proceedings under the POCSO Act. 10. It is pertinent to note that Section 31 of the POCSO Act provides that the provisions of the Criminal Procedure Code including the provisions of the bail and bonds will apply to the proceedings under the POCSO Act. Therefore, the provisions of Section 439 of the Criminal Procedure Code will be applicable and Section 14(1) of the Atrocity Act also provides that the appeal against the order of granting or rejecting the bail by the trial Court lies before the High Court. 11. This Court has taken into consideration the law laid down by the Apex Court in the case of Sanjay Chandra Vs. Central Bureau of Investigation, (2012) 1 SCC 40 . 11.1 When the appeal filed under Section 14(A)(2) of the Atrocity Act challenging the order of trial Court, the mere fact that the charge-sheet has been filed, does not ipso facto affect the rights of the appellants to challenge the order of the trial Court rejecting their bail application and if the charge-sheet is filed during the pendency of the criminal appeal filed under Section 14(A)(2) of the Atrocity Act, that fact itself cannot crystallize to reject the bail application of the appellants. 12. It appears from the record that the role attributed to the present appellants is giving shelter to her son and brother. It also appears from the statement of the prosecutrix that there is love affairs between the main accused and the victim. It also appears from the record that the appellants herein are in jail since 28.02.2019. Considering the role of the appellants in the alleged offence and the allegations made against them in the FIR, without discussing the evidence in detail, prima facie this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the appellants on regular bail. 13. Hence, the present appeal is allowed. Considering the role of the appellants in the alleged offence and the allegations made against them in the FIR, without discussing the evidence in detail, prima facie this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the appellants on regular bail. 13. Hence, the present appeal is allowed. The appellants are ordered to be released on regular bail in connection with I - C.R.No.03/2019 registered with Aamletha Police Station, District: Narmada on executing a personal bond of Rs.10,000/- (Rupees Ten Thousand Only) each with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that they shall; (a) not take undue advantage of liberty or misuse liberty; (b) not act in a manner injurious to the interest of the prosecution; (c) surrender passports, if any, to the lower Court within a week; (d) not leave the State of Gujarat without prior permission of the Sessions Judge concerned; (e) mark presence before the concerned Police Station on alternate Monday of every English calendar month between 11.00 a.m. and 2.00 p.m., for a period of six months or till the conclusion of the trial, whichever is earlier; (f) furnish the present address of their residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court; 13. The authorities will release the appellants only if they are not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. 14. Bail bond to be executed before the lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law. 15. At the trial, the trial Court shall not be influenced by the observations of preliminary nature qua the evidence at this stage made by this Court while enlarging the appellants on bail. 16. The appeal is allowed in the aforesaid terms. Direct Service is permitted.