Gujarat High Court
Alok Kumar S/O Satyanarayan ... vs State Of Gujarat on 5 July, 2023
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
R/CR.MA/6398/2023 ORDER DATED: 05/07/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 6398 of 2023
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ALOK KUMAR S/O SATYANARAYAN RAMBACHCHAN PRASAD SINGH
Versus
STATE OF GUJARAT
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Appearance:
MR B.B.NIAK, SENIOR ADVOCATE for ADITYA R GUNDECHA(8869) for the Applicant
MR UTKARSH SHARMA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 05/07/2023
ORAL ORDER
1. By way of the present application under Section 439 of the Code of Criminal Procedure, 1973, the applicant - accused has prayed for regular bail in connection with the FIR bearing No.11191048221244 of 2022 registered with Sarkhej Police Station, Ahmedabad Navasari for the offences punishable under Sections 354 and 354(A) of the Indian Penal Code and under Sections 7, 8, 9(F) and 10 etc. of the POCSO Act.
2. As per the FIR registered by mother of one of the victim, she has stated that she has two daughters and elder daughter is studying in standard 10 and is going to take tuition at the residence of the applicant. On 01.12.2022, when she was sitting with her husband, the daughter came to them and said that henceforth, she would not go to attend the tuition at the residence of the applicant as he is touching the parts of her body inappropriately and left the room. The next day, the victim girl told her mother that since last one year she was being Page 1 of 7 Downloaded on : Tue Jul 11 20:33:21 IST 2023 R/CR.MA/6398/2023 ORDER DATED: 05/07/2023 called for tuition on Sunday by present applicant and by asking to sit on the sofa on the drawing room present applicant used to touch her breast inappropriately and therefore, she would not like to go to tuition at the residence of present applicant and accordingly, the complainant stopped sending her to tuition. As the first informant came to know about the aforesaid fact, she was told by her victim daughter that one another girl, who is also going for tuition at the residence of present applicant and studying in standard 9 and residing in the same society, has also experienced similar inappropriate touches from present applicant and therefore, the complainant approached the mother of another girl and inform her about the complaint made by her daughter. Upon inquiry, it was found that another victim girl was also experienced the similar treatment from present applicant and accordingly, they decided to file a police complaint and ultimately, the FIR was lodged by the complainant alleging the inappropriate touch on the breast and other parts of the body of the victim students studying in Standard 9 and 10 aged about 14 and 16 years respectively by present applicant.
3. Learned Senior Advocate Mr.B.B.Naik assisted by learned advocate Mr. Aditya Gundecha for the applicant submitted that in view of language of Sections 10 and 9(F) of the POCSO Act, as the same would not be applicable to the facts of present case. The above referred sections are not applicable as present applicant is not running any educational institution nor he can be said to be staff of the educational institution and as Page 2 of 7 Downloaded on : Tue Jul 11 20:33:21 IST 2023 R/CR.MA/6398/2023 ORDER DATED: 05/07/2023 those sections are in respect of educational institution and therefore, in view of that, present applicant is required to be enlarged on bail. He further submitted that considering the fact that present applicant was running a tuition class in his residential flat where he is residing along with his old aged mother and wife, the incident alleged was not at all possible for the reason that it was alleged that the offence had taken place in the same flat where he was residing with his old aged mother and wife. He further submitted that present applicant is only bread winner of his family, he may be enlarged on bail.
4. Learned Senior Advocate further submitted that there are about 40 students taking tuition from present applicant; however, none of them have ever complaint about any inappropriate touches by the present applicant as well as considering the facts that statements of other students or parents are not taken, the present FIR is registered on account of the fact that the victims were poor in studies and as present applicant was strict, just out of vengeance, the FIR is registered. He further submitted that there is delay of 11 days in registering the FIR and therefore also, it does not inspire any confidence. He further submitted that the investigation is over and charge sheet is filed and even if, present applicant is held guilty of the offences, then also the maximum punishment would be 7 years and therefore, considering the totality of the facts and circumstances, as the investigation is over, present applicant is enlarged on bail.
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5. Learned APP Utkarsh Sharma has vehemently opposed the application of bail and submitted that what is required to be considered by the Court is not the fact that maximum punishment of the offence for which present applicant seeking bail is 7 years. The Court may look at the offence from different angle and may consider it from the perspective of the society at large. He submitted that present applicant is 40 years whereas the victims are 16 and 14 years are old and present applicant for about a period of one year continued to touch the victims inappropriately by calling them alone on Saturday and Sunday. Learned APP further submitted that when a young girl makes complaint to their parents about any inappropriate touches by teacher, then, at this stage of bail, there cannot be a better piece of evidence, than the statement of victim girls themselves. By making the aforesaid submission, learned APP submitted that even if, there are 40 students studying under present applicant and present applicant is running the classes since last six years what is important is the fact that at least at two young girls have been victimized by present applicant and considering the seriousness of the allegations against present applicant, if the present applicant is enlarged on bail, there are all the chances, that in future also, he may commit similar offence as he is connected with profession of imparting education and that also to the school children and therefore, today as there is sufficient material against present applicant in the form of statements of victim girls and their parents, is sufficient to consider present application bail and therefore, he may not be enlarged on bail.
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6. Heard learned Senior Advocate Mr.B.B.Naik assisted by learned advocate Mr. Aditya Gundecha for the applicant and learned Additional Public Prosecutor Mr. Utkarsh Sharma.
7. I have also considered that fact it is the specific case of learned Senior advocate Mr. Naik for the applicant that Section 9(F) specifically refers to an accused being on the management or staff of educational institution and religious institution and commits sexual assault on child in that institution; however, considering the fact that in Section 2(h) religious institution is defined; however, in the act educational institution is not defined, which goes to say that just with a view to achieve object of the act, when the word 'educational institution' is not defined, it will have wider meaning than the meaning as canvased by learned Senior Advocate by Naik and the meaning should be such that it may aid the object of the act. It is an undisputed fact that present applicant is in the field of education and taking tuition, which is indicates that he is imparting education and he calls the students at his residence and therefore, prima-facie, even if a single person is connected with the field of education in capacity of a teacher or otherwise, the same would fall within purview of Section 9(F) and therefore, the aforesaid submission cannot be accepted.
8. Further, as far as the submission in respect of the fact that present applicant is taking up tuition since last six years and till date, there were no other complaint from any of the students or Page 5 of 7 Downloaded on : Tue Jul 11 20:33:21 IST 2023 R/CR.MA/6398/2023 ORDER DATED: 05/07/2023 their parents as well the submission that other students or parents statements are not taken by the Investigating Officer during the course of investigation, this Court is of the view that when two victim girls having categorical in their specific statements alleged inappropriate touches by the applicant that is sufficient at this stage to consider the bail application of the applicant. Even if, there are no statements recorded by Investigating Officer in respect of other students and teacher when the victim themselves have stated that they were touched inappropriately by present applicant and considering the fact those two victims girls are age of 16 and 14 years, which indicates that they are wise and mature enough to understand and know the good touch and bad touch and therefore, considering the fact that present applicant, who is aged about 40 years and being a teacher, he was in a dominating position to call the students at his whim those allegations which are of serious nature cannot be out rightly rejected. Further though the maximum punishable for the offence may be seven years but at the same time, the Court is also required to see that present applicant is in the profession of education and teaching the students, who are school going children. The allegations against present applicant disclose that weird mentality of present applicant prima-facie and therefore, if present applicant is enlarged on bail, even if, by imposing strictest terms on him, in all probability, there is likelihood that such incident may happen again as people of such mindset pauses great threat to the society.
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9. As far as the allegation about 11 days in registering the FIR is concerned, the aforesaid delay is immaterial or insignificance in view of the fact that both the girls are of very tender age of 16 and 14 years and it would require a great courage even for the parents go to police station and register such complaint. They may have deliberated the issue with other family members; however, this Court may not go into those aspects at this stage as all these allegations herein are the subject matter of trial and therefore, the aforesaid contention also cannot be accepted.
10. In view of the aforesaid prima facie observations, considering the totality of facts and circumstance, I do not see any reason to enlarge present applicant on bail and present application requires to be dismissed and accordingly, the same is dismissed.
(NIRZAR S. DESAI,J) F.S.KAZI....
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