Gujarat High Court
Soyab Abdul Gafarbhai Sorathiya vs State Of Gujarat on 21 August, 2020
Author: Sonia Gokani
Bench: Sonia Gokani
R/CR.MA/2200/2020 IA ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR RESTORATION) NO. 1 of 2020
In R/CRIMINAL MISC.APPLICATION NO. 2200 of 2020
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SOYAB ABDUL GAFARBHAI SORATHIYA Versus STATE OF GUJARAT ========================================================== Appearance:
MR. IH SYED, LR SR ADV. with MR R.K.MANSURI for the PETITIONER(s) No. MR HARDIK SONI, ADDL. PUBLIC PROSECUTOR for the RESPONDENT(s) No. ========================================================== CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI Date : 21/08/2020 IA ORDER
1. This is an application seeking to release on regular bail under Section 439 of the Code of Criminal Procedure in connection with I-CR No. 44 of 2018 registered with Veraval City Police Station for the offences punishable under Sections 376(2)(D), 354(A)(B)(D), 328,323, 504, 506(2) and 114 of the Indian Penal Code and Section 66(E) Page 1 of 11 Downloaded on : Tue Aug 25 02:14:01 IST 2020 R/CR.MA/2200/2020 IA ORDER of the Information Technology Act.
2. It is the say of the applicant that he is behind the bar from the date of his arrest since 2018. The charge sheet is also filed, however, his last application was rejected which he has withdrawn and he was given liberty to approach this Court if the trial is not over in six months' period.
3. He preferred Criminal Misc. Application No. 2200 of 2020 on the ground that almost all witnesses are examined except the prosecutrix since she was not remaining present because of her pregnancy. The said application was not pressed and he was granted opportunity to once again approach this Court if the deposition of the prosecutrix was not recorded till July, 2020. 3.1. It is the say of the applicant that due to pandemic on account of COVID-19 virus, the lockdown has been imposed in the entire country. Accordingly, this Court and the trial Courts take up only urgent matters and work only through video conferencing and recording of evidence could not become possible. Page 2 of 11 Downloaded on : Tue Aug 25 02:14:01 IST 2020
R/CR.MA/2200/2020 IA ORDER 3.2. It is further his say that the prosecutrix has twins and as per the doctor's report and she was to deliver the children in the month of July, 2020 therefore, it was not possible of her to remain present before the trial Court concerned.
4. On issuance of rule, learned APP appeared and had gathered the details from the investigating officer. It is submitted that the report received from the Police Inspector Veraval City Police Station states that, there are in all 23 pancha witnesses and 6 other witnesses have been examined and two doctors have been examined in the trial, thus, in total 31 witnesses have been examined and the trial of sessions case substantially progressed, however, on account of pandemic, some witnesses are not being examined as the physical functioning of the Court has not as yet started. He has urged that all photographs and the videography DVD etc. are with the trial Court and the report of the Forensic Laboratory is already placed on record.
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R/CR.MA/2200/2020 IA ORDER
5. This Court has heard extensively learned senior advocate Mr. I.H.Syed appearing with learned advocate Mr. Mansuri for the applicant - undertrial prisoner and learned APP Mr. Soni appearing for the State.
6. It is urged by learned senior advocate Mr. Syed that the relationship of the prosecutrix and that of the applicant was consensual, therefore, it is not fair to the applicant to be behind bar for more than two years. There is no likelihood of the prosecutrix being examined in the near future, although, the next date of trial is scheduled on 25.08.2020. He has taken this Court through not only the statement of prosecutrix but various other witnesses and the material which has been placed on the charge sheet, to urge that she was a consensual party all throughout and it is only after they parted the ways, she chose to allege against him. He is a young boy who is suffering on account of his incarceration in trial. He has urged the Court to impose stringent conditions and to allow this application.
He also further urged that all the photographs and Page 4 of 11 Downloaded on : Tue Aug 25 02:14:01 IST 2020 R/CR.MA/2200/2020 IA ORDER videotapes would reveal clearly that their relationship was voluntary and had no element of coercion and force,much less any criminality.
7. Learned APP Mr. Soni has strongly resisted this. According to him, initial consensual relationship even if is assumed as averred by the applicant, the fact remains that she was forced to keep the relations not only with the applicant but, some of his friends and the photographs and the videography recorded of the intimate moments was with a single object of insisting for the repeated acts and to drag the prosecutrix into the physical relationship by way of compulsion and force. He has urged that the nature of photographs and videography made of those private moments cannot be termed as her having volunteered for the said picturization and recording. No girl would have preferred to such moments to be videographer and circulation of the same amongst others, more particularly, if they are having genuine feelings for each other and in such eventuality the element of this being inter religious relation would hardly have any bearing.
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8. Having heard both the sides and also noticing the first application for regular bail which had been preferred by the applicant being Criminal Misc. Application No. 17420 of 2018 where this Court on 28.11.2018 was considering the application of two co accused and so far as the present applicant was concerned, he chose not to press his application and accordingly, his application was dismissed as not pressed. Once again, he approached this Court by way of Criminal Misc. Application No. 5637 of 2019 which was also not pressed and permission was granted by way of order dated 12.07.2019 to approach this Court after six months if the trial has not completed.
9. His application being Criminal Misc. Application No. 2200 of 2020 was at the stage when there were three more witnesses who were to be examined, over and above the prosecutrix and the FSL Officer who developed the C.D. from cell phone and four more officers were remained to be examined, the same also was not presses with a liberty to approach this Court, if the prosecutrix is unable to depose Page 6 of 11 Downloaded on : Tue Aug 25 02:14:01 IST 2020 R/CR.MA/2200/2020 IA ORDER by July, 2020.
10. This application is once again preferred on the ground that the prosecutrix, so far is examined and the trial is unlikely to be proceeded.
11. Noticing the fact that nothing has changed from the last withdrawal which had been made by the applicant when compared with this application, that itself is a ground not to entertain this application. This Court cannot be oblivious of the fact that in the month of March, 2020 he was permitted to withdraw with a liberty to approach this Court in the month of July, 2020. Soon thereafter from 23.03.2020 itself, the lockdown in the entire country was declared due to the Pandemic. The trial Courts in the State of Gujarat also are not functioning physically and are open for only urgent purpose. In such circumstances, to expect the Court to have recorded the deposition of the prosecutrix is asking for impossible and looking it from that view of the matter, no fresh cause has emerged for the Court to entertain this application and that itself is a Page 7 of 11 Downloaded on : Tue Aug 25 02:14:01 IST 2020 R/CR.MA/2200/2020 IA ORDER sufficient ground for rejecting this application.
12. So far as the merit of the matter is concerned, much has emphasized on this being a consensual relationship of the parties by taking this Court through entire gamut of facts and the statement of the various witnesses. This Court cannot be oblivious of the fact that the trial is going on. Any opinion at this stage can affect the interest of the parties on either side and therefore, it would in the fitness of the things not to delve further into the facts of the matrix, however, in the gist, it is sufficient to notice that the relationship which may have started with the consent of the girl, later on, with the photographs and videography which have been also sent for the examination of FSL of the very intimate moments of man and woman relationship, also have emerged from the mobile phone of the applicant, seriously questions the motive and intent and therefore, the version of the prosecutrix in the complaint itself speaks volumes prima facie of the conduct of the applicant. Again, it is very often noticed as in the instant case also that the initial relationship which may Page 8 of 11 Downloaded on : Tue Aug 25 02:14:01 IST 2020 R/CR.MA/2200/2020 IA ORDER have started with the consent of the girl can turn quite ugly and frightful because of the threat and force exerted with the misuse of technology to compel and force the young girls. The details which she has narrated in the complaint if looked at dispassionately, it also is reflective as to how she had been also compelled to enter into the physical relationship with his friends by the applicant. Had it been a case of pure and simple consensual relationship, these details would be completely absent. Rather than delving further into the matter, suffice to note that the trial has progressed substantially and it is at a crucial stage of recording deposition of prosecutrix, who is now married and is a mother of two children (twins) to whom she delivered very recently, she had been already summoned and because of the medical advice, her version could not be recorded, however, once the trial Court opens physically, which will be in a very near future, she would be sent the summons and her statement could be recorded.
13. This Court is conscious of the fact that the possibility Page 9 of 11 Downloaded on : Tue Aug 25 02:14:01 IST 2020 R/CR.MA/2200/2020 IA ORDER cannot be ruled out that if the applicant is released on bail at this juncture, he would attempt to influence the course of trial by adversely influencing the witnesses. It may have serious bearing on the course of justice. Therefore, the Court deems it appropriate to reject this application noticing not only more than prima facie case against the applicant but a serious threat to the free and fair trial if allowed the release at this crucial juncture. Individual liberty of the accused and bail and not jail though are fundamental principles, also equally vital is that the stream of justice remains unpolluted by insulating the same from the possibility of tampering.
14. No one contemplated Pandemics and therefore, delay cannot be attributed to anyone, much less to the prosecution to permit any advantage to the applicant . However, speedy trial being the right of one and all, this order needs to end with a direction to the trial Court that no sooner the Court reopens physically, within two weeks, the evidence of prosecutrix shall be attempted to be recorded where both the sides shall cooperate.
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14. With the above directions and observations, this application stands rejected and disposed of accordingly.
(SONIA GOKANI, J) MISHRA AMIT V./Bhoomi Page 11 of 11 Downloaded on : Tue Aug 25 02:14:01 IST 2020