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2021 DIGILAW 1019 (BOM)

Palkesh Chaurasiya v. Police Inspector

2021-07-20

M.S.JAWALKAR

body2021
JUDGMENT M S Jawalkar, J. - The above application is filed under Section 439 of Cr.P.C. in Crime No.42/2021, registered on 16.02.2021 by the Calangute Police Station, under Section 376, 109, 506 read with 34 of the Indian Penal Code, 1860, by the applicant, who came to be arrested by respondent no.1 on 20.02.2021. The applicant is arraigned as accused no.3 in the said crime. Unsuccessful with his efforts to get regular bail from the trial Court, the applicant has come before this Court. 2. Heard Mr. Franco Coburn Freddie Joseph, learned Counsel for the applicant and Mr. S.G. Bhobe, the learned Public Prosecutor for the Respondents. 3. Brief facts of the case are that victim girl had travelled by car from Indore, Madhya Pradesh to Goa on 29.12.2020, along with applicant and other accused, to celebrate new year. They had a stay in Villa Emmanuel Guest House at Baga beach in Goa, where the victim girl was pressurised by the other accused persons to drink alcohol and on 01.01.2021 at around 2.00 a.m. accused no.1 is said to have raped the victim girl. The victim girl then searched for police contact number and dialed at the police station at about 2.30 p.m. to 2.45 p.m. While doing so, one of the accused snatched her mobile away from her and switched it off. Hence, police could not trace her. The victim girl on reaching Indore filed a complaint against the accused persons on 03.02.2021. Accordingly, FIR was registered by the Calangute Police. A police team was formed and sent to Indore, who with the help of local police arrested the accused and brought to Goa. 4. Learned Counsel for the applicant submits that an intimation of arrest was issued to accused nos.1 to 4 on 18.02.2021 that the accused are arrested under Sections 376, 109, 506 read with 34 IPC. On the same day, notice under Section 41-A of Cr.P.C. was issued to accused nos.5 to 7, i.e. even before the chargesheet could be filed under same Sections. On the same day, notice under Section 41-A of Cr.P.C. was issued to accused nos.5 to 7, i.e. even before the chargesheet could be filed under same Sections. The learned Counsel has drawn my attention to Section 41-A, which speaks about notice of appearance before police officer and that the police officer shall, in all cases where the arrest of a person is not required under the provisions of Sub-section (1) of Section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice. The learned Counsel, thus, contends that the police officer has a reason to believe that on the basis of complaint such persons have committed the said offence. The learned counsel for the applicant contends that accused nos.5,6 & 7, who are booked for the same alleged offence, as the applicant, are not arrested and are only issued 41-A notice. 5. The learned counsel for the applicant submits that motive is not relevant when there is no direct evidence and that the whole case of the prosecution is based on suspicion and belief. Referring to 164 statement of the victim girl, learned Counsel states that the victim girl has not named applicant as the one who has committed rape. So also, the victim girl has filed the complaint after a period of one month and not immediately after reaching Indore. The applicant submits that investigation is complete and chargesheet is filed and, hence, he may be released on bail. 6. The learned Counsel has placed reliance on Santosh Ramchandra Nikam Vs. State of Maharashtra, (2010) AllMR(Cri) 693, wherein it is held at para 4 that there was a delay of a month in lodging of the F.I.R. which was not satisfactorily explained. The applicant was in custody for more than three months and the investigation was complete. In these circumstances, the learned Judge had granted bail to the applicant. 7. The learned Counsel has also relied on Kulwant Singh @ Kulbansh Singh Vs. State of Bihar, (2007) 3 Crimes(SC) 177 (SC), in support of his contention that mere failure to prevent the commission of an offence is not by itself an abetement of that offence. In these circumstances, the learned Judge had granted bail to the applicant. 7. The learned Counsel has also relied on Kulwant Singh @ Kulbansh Singh Vs. State of Bihar, (2007) 3 Crimes(SC) 177 (SC), in support of his contention that mere failure to prevent the commission of an offence is not by itself an abetement of that offence. It was further held that 'the instigation must have reference to the thing that was done and not to the thing that was likely to have been done by the person who is instigated. It is only if this condition is fulfilled that a person can be guilty of abetement by instigation'. 7. In view thereof, the learned counsel for the applicant prays that bail be granted and applicant be released on bail. 7. On the other hand, Shri S.G. Bhobe, the learned Public Prosecutor for the respondents, submitted that as pointed out in bail application three bail applications are pending disposal before the learned Sessions Judge. The learned Public Prosecutor submits that accused no.1/Pawan Lalwani and accused no.4/Mohit Kalyani, both have been rejected bail. As regards the present applicant accused no.3/Palkesh, the learned Public Prosecutor refers to Section 164 statement of the victim girl which is, as of today, of a rape. 8. XXX XXX XXX 9. XXX XXX XXX 10. Learned Public Prosecutor points out to 164 statement of the victim girl and submits that rape has been committed by one accused and abetement is clear from her statement. On going through 164 statement of the victim girl it is clear that the other accused persons including the applicant forced the victim girl to drink alcohol, due to which the victim girl had started feeling dizzy. Thereafter, these accused persons along with the applicant told accused no.1/Pawan to drop the victim girl at the villa where accused no.1/Pawan committed rape. Learned Public Prosecutor further submits that the victim girl had called Goa police from her mobile phone, which was snatched away by one of the accused and, hence, police could not trace her as her phone was found switched off by that time. Learned Public Prosecutor further submits that all the accused were convincing victim girl not to file complaint and were also threatening her. Learned Public Prosecutor further submits that all the accused were convincing victim girl not to file complaint and were also threatening her. Learned Public Prosecutor submits that the victim girl has clearly named applicant in her 164 statement as being one of those who had asked accused no.1/Pawan to force her to consume alcohol and it was not as if the applicant came to the rescue of the victim girl. All the accused had compelled the victim girl to consume alcohol and it cannot be said that naming the applicant specifically in 164 statement was an afterthought. 11. As regards, issuance of notice under Section 41- A, the learned Public Prosecutor submits that it was given to those accused whose bails are pending. Merely because Section 41-A notice was given to them, it will be of no use for present applicant. 12. Hence, learned Public Prosecutor submits that at least till the statement is recorded and arguments are heard for charge, the applicant may not be released on bail. So also, there is no case made out for grant of bail to this applicant. 13. I have heard the learned Counsel appearing for the parties and have also gone through the documents on record. The reliance placed by applicant on Kulwant Singh (supra), may not be helpful to the applicant as in the present set of facts and statement of victim girl, prima facie, abetement by the applicant reveals. It is not the case that he failed to stop committing offence, on the contrary, he instigated Pawan to force victim girl to drink alcohol. He also played role after commission of offence preventing victim girl from lodging complaint. Even on return to Indore they all threatened the victim girl for not filing complaint. 14. In the case of Santosh Ramchandra Nikam (supra), relied upon by the applicant, there was no satisfactorily explanation for delay of one month and, prima facie, Court observed that the act of intercourse could be with consent and only after it was disclosed that neighbours had seen the applicant entering the house of the prosecutrix, locking the door from inside and going out of the house after about 15-20 minutes, the complaint has been lodged. In the present case, the victim girl immediately called the police, which can be seen from the statement of Mr. In the present case, the victim girl immediately called the police, which can be seen from the statement of Mr. Amir Naik, Police Constable, who had received information from SHO of Calangute that they have received a call from unknown lady informing that she needs police help. SHO of Calangute Police Station gave her contact number also, however, they could not reach to the exact place as later on phone was switched off. This statement corroborates to the statement of victim girl. Prima facie, it appears that there is involvement of the applicant along with other accused in abeting Pawan to commit alleged crime. If he is released on bail likelihood of threats to the victim girl cannot be ruled out in view of the statement made by victim girl. 15. As such, I am not inclined to enlarge applicant on bail and, accordingly, bail application stands rejected. However, applicant is at liberty to file application for bail after recording evidence of victim girl, which can be decided on its own merit.