Gujarat High Court
Bharti vs State on 29 December, 2011
Author: K.M.Thaker
Bench: K.M.Thaker
Gujarat High Court Case Information System
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CR.MA/12342/2011 10 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 12342 of 2011
=========================================================
BHARTI
WD/O KISHANRO GOSAI - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
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Appearance
:
MR
BC DAVE for
Applicant(s) : 1,MR KUNAL B DAVE for Applicant(s) : 1,
MR NANAVATI
APP for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 29/12/2011
ORAL ORDER
1. Heard Mr. Dave, learned advocate for the applicant and Mr.Nanavati, learned APP for the respondent-State.
2. After having withdrawn the previous application under Section 439 - which was preferred before chargesheet - this bail application seeking regular bail under Section 439 of the Code of Criminal Procedure, 1973 has been preferred by applicant in connection with the offence registered with Varachha Police Station, Surat bearing CR No.I-119 of 2011 for the offence punishable under Sections 363, 366, 366(A), 368, 372, 373, 114, 376 of Indian Penal Code.
3. Mr. Dave, leaned advocate for the applicant has submitted that the applicant is not involved in the alleged offence. He also submitted that other co-accused i.e. Chandrikaben Dilipbhai Kathane and Bhanuben Rampuri Amratpuri Gosai have been released on bail by the trial Court vide orders dated 4.8.2011 and 12.8.2011 passed in Criminal Misc. Application No.1733 of 2011 and Criminal Misc. Application No. 1822 of 2011. Having cited the said two orders learned advocate for the applicant prayed for parity. Mr. Dave, learned advocate for the applicant also submitted that having regard to the fact that the applicant herein is widow lady and that she is aged 57 years the request for enlarging applicant on bail may be granted. Learned advocate for the applicant also relied on order dated 30.6.2011 passed by this Court in Criminal Misc. Application No. 7735 of 2011 wherein according to the learned advocate for the applicant, the accused is enlarged on bail in near similar facts. Relying on the said order and the orders passed by the trial Court in case of two co-accused learned advocate for the applicant prayed for bail on the ground of parity.
4. Mr. Nanavati, learned APP has vehemently opposed the application and contended that in view of the nature of allegation and role played by the applicant the application does not deserve to be enlarged on bail. He submitted that the allegations of offence of very serious nature have been made against the applicant and there is strong likelihood and apprehension that the activities of similar nature may be repeated. He submitted that so far as the order of this Court on which the applicant has relied i.e. order dated 30.6.2011 passed in Criminal Misc. Application No. 7735 of 2011 is concerned, it is in another case and that therefore cannot be relied on in present case. He also submitted that the order passed by the trial Court in case of two co-accused, cannot be cited for the purpose of parity. He also submitted that allegations against the present applicant are of different nature and therefore also the said orders cannot relied on in present case. Mr. Nanavati, learned APP opposed the application and submitted that applicant does not deserve to be enlarged on bail.
5. Looking to the nature of the activity allegedly indulged into by the applicant, and considering the age of the victim - girl and nature and gravity of alleged offence (viz. Section 366, 366A, 372, 368 etc.) and the aspects mentioned herein below she does not deserve to be enlarged on bail.
In the complaint / chargesheet and as per the statement of the unfortunate victim girl (aged 13 years) the applicant is allegedly involved in activity of procuring and selling minor - young girl/s and in present case the minor victim girl who was allegedly sold by the applicant to one of the accused persons for a sum of Rs.50,000/- has also been allegedly subjected to the offence under Section 376. The offence alleged against the applicant are of grave nature.
5.1 Learned advocate for the applicant initially cited the orders passed by the trial Court releasing two co-accused on bail and he submitted that two co-accused have been released and that therefore present applicant deserves to be released on the ground of parity.
5.2 In this context it is necessary to note that even a cursory glance at the complaint and the chargesheet as well, bring out, of course prima facie, that the extent of role allegedly played by the present applicant and the nature and gravity of the allegations against the present applicant are of different nature and extent from those against the said two co-accused.
5.3 The statement of the unfortunate victim - girl, aged 13 years, which is recorded by the investing authority, reflect that the applicant allegedly entered into transaction of trafficking (selling) the girl for a sum of Rs. 50,000/- If not any other allegation, then atleast the said allegation sets the case of present applicant apart from the case of the other co-accused.
6. Learned advocate for the applicant also stressed the submission that the applicant is a lady accused and therefore she deserves to be enlarged on bail.
6.1 In view of facts of present case it would not be appropriate to take the said factor i.e. that the accused is a woman into account or to give any consideration or weightage to said aspect at this stage, particularly looking to (a) the allegations about the role played by the applicant who herself is a woman (b) coupled with the fact that the unfortunate victim is a girl - and that too a minor girl of just 13 years age and (c) looking to the fact that the unfortunate girl was allegedly subjected to the alleged offence including the offence under Section 376 and having regard to (d) the nature and gravity of the alleged actions into which the applicant - who is a woman is said to have indulged, it would not be appropriate to make any other observations or express any further view at this stage of the case.
7. Learned advocate for the applicant has essentially and substantially placed reliance on and concentrated on the ground of parity.
7.1 As regards the plea based on the ground of parity in light of the order dated 30.6.2011 passed in Criminal Misc. Application No. 7735 of 2011, it is necessary to mention that it is passed in altogether different case having different facts and circumstances, different nature of allegation and different context.
7.2 Besides this, the order appears to have been passed mainly on the basis of the facts of the said case.
7.3 Thus, there is no ground or justification for invoking or applying doctrine of party in present case, on the strength of the said order dated 30.6.2011 passed in Criminal Misc. Application No. 7735 of 2011, more particularly when the order is passed in a different case.
8. Since, reference of nature and extent of the allegation against the applicant and the role allegedly played by the applicant in the alleged offence and the nature of gravity of the allegations against the applicant are required to be in present order and hence such observations have been made hereinabove, it would also be relevant to note, beside the fact that the allegation against the applicant relate to the offence punishable under Section 366(A), 372, 366, 368 and 363, it would be relevant to also make reference of the details mentioned by the girl, aged 13 years, in her statement which was recorded on 14.5.2011 wherein she, inter alia, has stated that:-
"On the last 8.11.2010, as I required to purchase notebook for tution class, I went to my father's biscuit lorry at Baroda Pristage Market at about 4.00 p.m. and I left to purchase notebook after taking Rs.10/- from him and the shops were closed due to festival. Therefore, I reached near Lambe Hanuman culvert on foot. One unknown old woman met me there. She asked my name by calling me near and told me to hold her bag upto Railway Station. By saying so, she took me to the platform by giving me her bag in my hand and made me sit with her in the train. As I refused to go with her, she said that "we will return in an hour and I will drop you to your home". By saying so, she took me with her and took me at the house of one fat aunty whose name is Bharatiben, at Pratapnagar in Baroda and this old woman took Rs.10,000/- from Bharatiben and handed over me to her. At this time, there were other four girls than Bharatiben in her house. I do not know as to who were these girls. After Bharatiben had kept me at her house, as I asked to go to my parents at my house she said that "I have expended money behind you. I will send you to your home after the money is recovered." by saying so, Bharatiben made me stay on the first floor of her house for the whole day. Other women used to supply other girls at Bharatiben's house. Bharatiben used to sell these girls for marriage. I do not exactly remembers as to how much time I stayed at Bharatiben's house, but before about one month, Bharatiben had taken me to Ahmedabad and dropped me at some place in Ahmedabad at the house of one woman named Chandrikaben. Thereafter, Bharatiben went back. On second or third day, I ran away from the house of Chandrikaben and reached upto the road. But, Chandrikaben caught me back from the road and brought me to her house. There was one person who belonged to our Uttar Pradesh, at the timber shop near the house of Chandrikaben and I talked to him that "my parents are in Surat and our native is Badlapur".
This person told me that "I will inquire about your father".
Bharatiben came to Chandrikaben after about three days and took me back to Baroda. At that time, there were no other girls at Bharatiben's house. But, when I stayed for some days, two girls came to Bharatiben's house.
Before about ten days from today, Rambhai who used to come to Bharatiben's house and Bharatiben who used to get girls married, he used to assist in getting the said girls married by becoming their uncles or any relatives. In its return, Bharatiben used to give money to him. The said Rambhai, his wife and son - Suresh came to Bharatiben's house at Baroda and as Bharatiben sent me with them, all these three persons took me to their house at Vijapur and Rambhai and Suresh told me that "your have been purchased from Bharatiben on payment of Rs. 50,000/- for marriage with Suresh". By saying so, Suresh raped with me in his room for two times at night and they used to detain me in the house."
(free translation from vernacular / gujarati language).
8. From the allegations in the complaint / chargesheet and in the statement dated 14.5.2011 of the victim girl, it comes out that the applicant is allegedly involved in the activity of procuring and selling minor girl/s.
8.1 The victim girl, in her statement, has alleged that the applicant had paid Rs. 10,000/- to the woman who brought the girl to the applicant and then she sold the victim girl after receiving a sum of Rs.50,000/- whereafter the victim girl was allegedly also subjected to offence under Section 376.
8.2 The victim girl, in her said statement has also alleged that while she was detained at the place of the applicant she had seen other four girls and then other two girls were also brought there.
9. Having regard to (a) the extent of punishment which is prescribed for the alleged offence; and having regard to (b) the fact that the allegations involve the alleged offence is of child prostitution including the acts of procuring - selling minor / young girl/s and having regard to (c) the apprehension and belief of the police authorities that in view of nature of the alleged activity, the repetition whereof cannot be ruled out and also having regard to (d) the quantum of punishment and (e) the allegations against the applicant, the manner in which the applicant is allegedly involved in the case as per the allegation of the prosecution, I am of the view that the ground of parity and / or the factor that the applicant is lady accused are not available to the applicant and the said aspects do not deserve to be considered at this stage for considering the application and request of the applicant.
In the facts of the case I am not inclined to exercise the discretion and jurisdiction to accept the application and enlarge the applicant on bail.
The application deserves to be disallowed.
It is also necessary to note that the learned trial Court also has declined to grant bail to present applicant even on ground of parity on the premise that the allegations against present applicant and the role allegedly played by the applicant in the alleged offence stands on different footing then the allegation against the said two co-accused. Learned trial Court also, after taking into consideration the orders passed in respect of the other two co-accused, rightly and justifiably disallowed present applicant's application after recording the reasons in paragraph Nos. 5 to 7 of the said order dated 11.8.2011.
10. In view of the foregoing discussion and the reasons recorded hereinabove, the application deserves to be rejected and is hereby rejected. Rule is discharged.
Suresh* (K.M.THAKER,J.) Top