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2024 DIGILAW 55 (GUJ)

Amit Mahendrabhai Bhindi v. State Of Gujarat

2024-01-08

J.C.DOSHI

body2024
JUDGMENT : By way of the present petition under Section 438 of the Code of Criminal Procedure, 1973, the petitioner has prayed to release them on anticipatory bail in case of his arrest in connection with the FIR registered as C.R.No.11208003221110 of 2022 registered with Rajkot City, Gandhigram – II Police Station for the offences punishable under Sections 376(2)(f)(k)(n), 506(1) and 114 of the IPC. 2. The short facts of the case are that somewhere in the year 2019, complainant and her husband Mayur Raninga were working in the shop of the petitioner in marketing department. That the shop of the petitioner is named as Ganesh Gold and deals in jewellery. On a date which the complainant does not recollect, it is alleged that the petitioner called her to his residence in the flat as mentioned in the cause title, i.e. in Sankalp 3 Apartments under the guise of checking and tallying the accounts since the shops would be closed on account of Diwali holidays. When she arrived at the residence of the petitioner, he was alone and taking advantage of the situation, he made illicit demand from the complainant. Taking advantage of her vulnerable situation, the accused No.1 is alleged to have committed offence under Section 376 and also taken nude photos of her. It is alleged that she was threatened to make the photos viral if she complained to anyone. Thereafter, misusing the photos, the petitioner also committed rape on her on different occasions and thereby committed the offences as alleged in the FIR. Thus the offence as aforesaid was committed and FIR came to be lodged. 3. Learned Advocate Mr.Nirav Thakkar appearing for the petitioner has thoroughly read the FIR to contend that FIR is filed belatedly almost after three years of the alleged incident. He would further submit that FIR is filed to counterblast the various proceedings initiated by the petitioner against the husband of the first informant. Taking this Court through Annexure – B, learned Advocate for the petitioner would submit that the petitioner has filed a criminal case under the NI Act against the husband of the first informant on 17/07/2021 alleging that he has not paid Rs.28 Lacs. Taking this Court through Annexure – B, learned Advocate for the petitioner would submit that the petitioner has filed a criminal case under the NI Act against the husband of the first informant on 17/07/2021 alleging that he has not paid Rs.28 Lacs. Referring to Annexure-C, he would submit that husband and sister of the first informant gave one application to the DCP, Rajkot alleging certain financial allegations against the petitioner which was filed prior to filing of the FIR and registered the Chapter case; but in the said complaint, at nowhere the allegations of rape was levelled against the petitioner though as per FIR husband of victim was knowing of alleged incident. He would further submit that since the husband of the first informant did not get any relief to settle the financial burden he owes to the petitioner, he in connivance with first informant filed the present false and frivolous FIR, and implicated petitioner in frivolous FIR, as accused. 3.1 Reading the FIR, learned Advocate would further submit that alleged incident took place between 01/11/2019 to 30/01/2020 at the place viz., Flat No.504, Sankalp-3 Apartment, Sadhu Vasvani Road, Rajkot; but the said allegation is false as the father of the petitioner has purchased this property only on 24/02/2021. Referring to Annexure-F, learned Advocate for the petitioner would submit that allegations are false and frivolous as the frivolity has been attached with the prosecution. He would further submit that even if the FIR is taken at its face value, it does not constitute the offence of rape as non-consensual act between the parties. He would further submit that since the flat was purchased in the year 2021, the question of committing rape or sexual act for the alleged period as aforesaid does not arise. He would submit that if this aspect is assessed, it would show that FIR is not only false but frivolous one. 3.2 Learned advocate for the petitioner would submit that this Court has granted interim relief and as a measure thereof, the petitioner joined the investigation and co-operated with the IO and remained present before the IO and recorded his statement and thereby extended fullest co-operation. 3.2 Learned advocate for the petitioner would submit that this Court has granted interim relief and as a measure thereof, the petitioner joined the investigation and co-operated with the IO and remained present before the IO and recorded his statement and thereby extended fullest co-operation. 3.3 Lastly, he would submit that as the petitioner is permanent resident of Rajkot City and having movable and immovable property with City, question of his absconding would not arise and thus by making above submissions, he would urge to allow this application. 4. Learned Advocate Mr.Pratik Jasani for the the victim having read the FIR would submit that victim entered sexual and physical relationship with the petitioner on the threat having been passed by the petitioner that he possesses the Satakhat files of the immovable property of her aunt. He would further submit that petitioner is having blank cheques of the first informant and her husband and as he is having good relationship with the higher officer, he was passing threat. He would further submit that petitioner also has nude photographs of the victim. Petitioner threatened the victim that if she did not surrender, the petitioner would make those photographs viral and shall also use Satakhat file as well as blank cheques to harass. Under such threat and given facts and circumstances though the victim was not willing to obey the demand of the petitioner; but entered into physical relationship with him under the threat and pressure. There is no consent on the part of the victim in physical relationship. He would further submit that once it is established that victim has not consented for such physical relationship, it can be termed as rape. He would further submit that it is a rape committed by the petitioner which prima facie coming out from the bare reading of the FIR. 4.1 Learned Advocate Mr.Pratik Jasani would further submit that though I.R. is granted to the petitioner, the investigation is not concluded and by no means such investigation can be said to be custodial interrogation of the petitioner. Lastly, he would submit that this is a fit case for custodial interrogation and thus the petition may be dismissed. 5. 4.1 Learned Advocate Mr.Pratik Jasani would further submit that though I.R. is granted to the petitioner, the investigation is not concluded and by no means such investigation can be said to be custodial interrogation of the petitioner. Lastly, he would submit that this is a fit case for custodial interrogation and thus the petition may be dismissed. 5. Learned APP Ms.Patel would join the arguments of learned advocate Mr.Jasani for the victim and submits that since the victim in the FIR has stated that rape was committed on her in clear and unequivocal terms, at this juncture this contention has to be believed. She would submit that custodial interrogation of the petitioner is required and therefore petitioner may not be enlarged on anticipatory bail. 6. Having heard the learned Advocates appearing for the respect parties and considering the papers produced with the petition, let refer to the order passed by the co-ordinate Bench of this Court on 30/09/2022 whereby interim-relief is granted. Paragraph 3 and 4 thereof reads thus: “3. Considering the submissions made by the learned advocate for the applicant and having regard to the documents on record, while it appears that the first informant inter-alia alleges commission of serious offences by the present applicant, and whereas it appears that the time period during which the alleged offence had been committed be shown between November, 2019 to January, 2020. It also appears that after the period in question, the parties were having some other disputes, inter-se and whereas the present applicant appears to have filed a complaint alleging offence punishable under Section 138 of the Negotiable Instruments Act against the husband of the first informant. It also appears that the present applicant had caused to issue a notice against the present first informant for returning to the Government an amount of Rs. 2,50,000/-, which was received by the first informant under some benevolent scheme of the State Government and whereas the present applicant was a guarantor to the said loan and whereas since the present first informant had not repaid the said amount, the present applicant had been issued with a notice by the authorities concerned. 2,50,000/-, which was received by the first informant under some benevolent scheme of the State Government and whereas the present applicant was a guarantor to the said loan and whereas since the present first informant had not repaid the said amount, the present applicant had been issued with a notice by the authorities concerned. This Court has also taken into consideration the sale-deed of the property, where the alleged offence had taken place and whereas it appears that the said property had been purchased by the father of the present applicant vide a registered sale-deed of the year 2021 i.e. after the period during which the offence had been allegedly committed. Having regard to the observations at this stage, prima-facie assumption of frivolousness in the prosecution, could not be ruled out. 4. In this view of the matter, in the considered opinion of this Court, interim protection is required to be granted to the applicant. Hence, Rule returnable on 14.10.2022. Learned APP waives service of notice of Rule for the respondent- State.” 7. On perusal of the FIR and other records, it appears that span of incident shown in the FIR is ranging from 01/11/2019 to 30/01/2020; whereas the FIR is filed on 05/09/2022. No explanation for delay in lodging the FIR is coming out from the record. It is also alleged that the incident took place at Flat No.504, Sankalp-3 Appartment, Sadhu Vasvani Road, Rajkot; but reading the Annexure-F, it appears that this flat has been purchased by the father of the petitioner only on 24/02/2021. Moreover, it appears that prior to filing of the impugned FIR, the petitioner has filed a criminal case under the NI Act against the husband of the first informant alleging dishonour of the cheques in the sum of Rs.28.00 Lakhs which espouses the fact that there are some business transactions between the parties and out of such business transactions, certain amounts are due against the husband of the first informant. It also appears from the FIR that after the first and second alleged incident took place in the year 2018 and 2019, she talked with her husband about the alleged incident. Subsequently, one complaint at Annexure – C was filed by husband of the first informant to the DCP, Rajkot, but it did not disclose the alleged incident of rape. It also appears from the FIR that after the first and second alleged incident took place in the year 2018 and 2019, she talked with her husband about the alleged incident. Subsequently, one complaint at Annexure – C was filed by husband of the first informant to the DCP, Rajkot, but it did not disclose the alleged incident of rape. It also cannot be overlooked that victim was major lady and she was knowing the petitioner prior to alleged incident. It also appears that though the victim stated that physical relationship was against her consent and under threat; but it took on multiple times and at no point of time it has been reported to any authority and first time the FIR is lodged alleging that rape was committed. Even if the physical relationship is believed to have been taken place, prima facie, it appears to be consensual between tow major persons. 8. Furthermore, in peculiar facts of the present case, frivolity the prosecution case cannot be ruled out. It also appears that FIR is a counterblast to the earlier proceedings including the complaint filed by the petitioner against husband of first informant under the NI Act. 9. It also appears that petitioner has joined the investigation and remained present before the IO and at present also he is ready and willing to join the investigation. Learned APP has failed to point out that there is a flight risk. 10. Thus, considering the above discussions and considering the well famous parameters for grant or refusal of bail i.e. balancing personal liberty and investigational power of police; freedom of individual vis-a-vis security of State; and balance between individual liberty and interest of society etc., alongwith nature of accusation, nature of evidence in support of the accusation; severity of the punishment which conviction will entail; I am inclined to exercise the discretion in favour of the petitioner. 11. In case of Bhadresh Bipinbhai Sheth Vs. State of Gujarat reported in AIR 2015 SC 3090 , the Hon’ble Apex Court delineated the following factors and parameters that needs to be taken into consideration while dealing with the anticipatory bail. 11. In case of Bhadresh Bipinbhai Sheth Vs. State of Gujarat reported in AIR 2015 SC 3090 , the Hon’ble Apex Court delineated the following factors and parameters that needs to be taken into consideration while dealing with the anticipatory bail. “(a) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (b) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence; (c) The possibility of the applicant to flee from justice; (d) The possibility of the accused's likelihood to repeat similar or other offences; (e) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; (f) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; (g) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution, because over implication in the cases is a matter of common knowledge and concern; (h) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to free, fair and full investigation, and there should be prevention of harassment, humiliation and unjustified detention of the accused; (i) The Court should consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (j) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused in entitled to an order of bail.” 12. A useful reference can also be made to the decision in case of Shivam vs. State of UP rendered in Criminal Misc. Ant Bail App. A useful reference can also be made to the decision in case of Shivam vs. State of UP rendered in Criminal Misc. Ant Bail App. No.2110 of 2021 by the Hon’ble Allahabad High Court wherein it has been held that what can be considered as “appropriate case” for the grant of anticipatory bail. Relevant observations reads thus: “40) After consideration of the above legal provisions with regard to investigation and submission of charge-sheet and also the judgements of the Apex Court in this regard, this Court finds that the "appropriate cases" wherein anticipatory bail can be granted are those cases where charge-sheet submitted by the Investigating Officer and process issued by the Court after taking cognizance under Section 204 Cr.P.C. can be quashed by the High Court in exercise of its jurisdiction under Section 482 Cr.P.C. and also some more cases. Therefore, non-grant of anticipatory bail to an accused only on the ground that charge-sheet has been submitted by the Investigating Officer or cognizance has been taken by the Court against him u/s 204 Cr.P.C. without considering the prima facie veracity of the same, will not be in the larger interest of justice. 41) The following can be considered as "appropriate cases" for grant of anticipatory bail to an accused apprehending arrest, even after submission of charge-sheet against the accused by the Investigating Officer of the police/after taking cognizance of offence against accused under Section 204 Cr.P.C. by the Court :- 1) Where the charge-sheet has been submitted by the Investigating Officer/cognizance has been taken by the Court, but the merits of the F.I.R/complaint that has been lodged by the informant/complainant are such that it cannot be proved against the accused in the Court; 2) Where there exists a civil remedy and resort has been made to criminal remedy. This has been done because either the civil remedy has become barred by law of limitation or involves time-consuming procedural formalities or involves payment of heavy court fee, like in recovery suits. The distinction between civil wrong and criminal wrong is quite distinct and the courts should not permit a person to be harassed by surrendering and obtaining bail when no case for taking cognizance of the alleged offences has been made out against him since wrong alleged is a civil wrong only. The distinction between civil wrong and criminal wrong is quite distinct and the courts should not permit a person to be harassed by surrendering and obtaining bail when no case for taking cognizance of the alleged offences has been made out against him since wrong alleged is a civil wrong only. When the allegations make out a civil and criminal wrong both against an accused, the remedy of anticipatory bail should be considered favourably, in case the implication in civil wrong provides for opportunity of hearing before being implicated and punished/penalized. The criminal remedy, in most of the cases, entails curtailment of right to liberty without any opportunity of hearing after lodging of complaint and F.I.R under the provisions of Cr.P.C. which is pre-independence law and disregards Article 14 and 21 of the Constitution of India. Therefore, in such cases where civil and criminal remedy both were available to the informant/complainant, and he has chosen criminal remedy only, anticipatory bail should be favourably considered in such cases. 3) When the F.I.R/complaint has clearly been lodged by way of counterblast to an earlier F.I.R lodged/complaint filed by the accused against the informant/complainant in near proximity of time. Therefore, in such cases where civil and criminal remedy both were available to the informant/complainant, and he has chosen criminal remedy only, anticipatory bail should be favourably considered in such cases. 3) When the F.I.R/complaint has clearly been lodged by way of counterblast to an earlier F.I.R lodged/complaint filed by the accused against the informant/complainant in near proximity of time. The motive of lodging the false F.I.R/complaint is apparent and from the material collected by the Investigating Officer or from the statements of witnesses in complaint case, there is no consideration of the earlier F.I.R lodged/complaint filed by the accused against the informant/complainant; 4) Where the allegations made in the F.I.R/complaint or in the statement of the witnesses recorded in support of the same, taken at their face value, do not make out any case against the accused or the F.I.R/complaint does not discloses the essential ingredients of the offences alleged; 5) Where the allegations made in the F.I.R/complaint are patently absurd and inherently improbable so that no prudent person can ever reach such conclusion that there is sufficient ground for proceeding against the accused; 6) Where charge-sheet has been submitted on the basis of evidence or materials which are wholly irrelevant or inadmissible; 7) Where charge-sheet has been submitted/complaint has been filed but on account of some legal defect, like want of sanction, filing of complaint/F.I.R by legally incompetent authority, it cannot proceed; 8) Where the allegation in the F.I.R/complaint do not consitute cognizable offence but constitute only a non-cognizable offence and investigation has been done by police without order of Magistrate u/s 155(2) Cr.P.C; 9) Where the part of charge in the charge-sheet regarding major offence alleged is not found to be proved and only minor offence has been found to be proved by the Investigating Officer, from the material collected by him during the investigation, the Court can consider granting anticipatory bail to an accused. Since after investigation and submission of charge-sheet the prosecution allegations in the F.I.R have not been found to be fully correct by the Investigating Officer and only part of the charges are found to be proved; 10) Where the investigation has been conducted by the Investigating Officer but the statement of the accused persons have not been recorded by the Investigating Officer and chargesheet has been submitted only by relying upon the witnesses of the prosecution side. Such a charge-sheet cannot be considered to be in accordance with law since the Investigating Officer is required to consider the case of both sides before submitting charge-sheet before the Court. Therefore, in such cases, anticipatory bail can be granted to an accused provided the accused has cooperated with the investigation. However this cannot be an inflexible rule since in most of the cases the accused do not cooperate with the investigation and it is not easy for Investigating Officer to record their statements. Therefore, what prejudice has been caused to an accused by non-recording of his version in the case diary of the police has to be demonstrated before the Court. Merely on the technical ground of omission on the part of the Investigating Officer to record the statement of the accused would not constitute a ground for grant of anticipatory bail; and 11) Where there is statutory bar regarding filing of F.I.R and only complaint can be filed, charge-sheet submitted against an accused in such cases would entitle him to apply for anticipatory bail after submission of charge-sheet by the Investigating Officer.” 12. In the case of Siddharam Satlingappa Mhetre v/s. State of Maharashtra and Ors. [2011] 1 SCC 694, the Hon’ble Apex Court reiterated the law laid down by the Constitutional Bench in the the case of Shri Gurubaksh Singh Sibbia & Ors. v/s. State of Punjab (1980) 2 SCC 665 and has well settled the parameters for deciding such application. This Court has also taken into consideration law laid down in the case of Sushila Agarwal v/s. State (NCT of Delhi [ (2020) 5 SCC 1 ]. 13. In the result, the present petition is allowed by directing that in the event of applicants herein being arrested pursuant to FIR registered as C.R.No.11208003221110 of 2022 registered with Rajkot City, Gandhigram – II Police Station petitioner shall be released on bail on furnishing a personal bond of Rs. 13. In the result, the present petition is allowed by directing that in the event of applicants herein being arrested pursuant to FIR registered as C.R.No.11208003221110 of 2022 registered with Rajkot City, Gandhigram – II Police Station petitioner shall be released on bail on furnishing a personal bond of Rs. 10,000/- (Rupees Ten Thousand only) with one surety each of like amount on the following conditions that the petitioner : (a) shall cooperate with the investigation and make himself available for interrogation whenever required; (b) shall remain present at concerned Police Station on 17/01/2024 and 18/01/2024 between 10.00 a.m. and 4.00 p.m.; (c) shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade him from disclosing such facts to the court or to any police officer; (d) shall not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police; (e) shall at the time of execution of bond, furnish the address to the investigating officer and the court concerned and shall not change residence till the final disposal of the case till further orders; (f) shall not leave India without the permission of the concerned trial court and if having passport shall deposit the same before the concerned trial court within a week; and 14. Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate, for police remand of the petitioner. The petitioner shall remain present before the learned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the learned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining application of the prosecution for police remand. This is, however, without prejudice to the right of the accused to seek stay against an order of remand, if, ultimately, granted and the power of the learned Magistrate to consider such a request in accordance with law. It is clarified that the petitioner, even if, remanded to the police custody, upon completion of such period of police remand, shall be set free immediately, subject to other conditions of this anticipatory bail order. 15. It is clarified that the petitioner, even if, remanded to the police custody, upon completion of such period of police remand, shall be set free immediately, subject to other conditions of this anticipatory bail order. 15. If breach of any of the above conditions is committed by the petitioner, the concerned learned Judge will be free to take appropriate action in the matter. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions in accordance with law. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court while enlarging the petitioner on bail. 16. Rule is made absolute. Direct service is permitted.