Gujarat High Court
Shantisagarji Maharaj (Giriraj ... vs State Of Gujarat on 7 September, 2018
Author: A.J.Desai
Bench: A.J.Desai
R/CR.MA/14413/2018 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION NO.14413 of 2018
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SHANTISAGARJI MAHARAJ (GIRIRAJ SAJANLAL SHARMA) Versus STATE OF GUJARAT ========================================= Appearance :
MR N.D. NANAVATY, SENIOR COUNSEL ASSISTED BY MR PRADEEP PATEL for the APPLICANT.
MR PRAVIN GONDALIYA for the COMPLAINANT. MS MOXA THAKKAR, APP for the RESPONDENT. ========================================= CORAM : HONOURABLE MR.JUSTICE A.J.DESAI Date : 20/09/2018 CAV ORDER
1. A Jain Digambar (Sky - Clad) Monk is before the Court to get himself released from the judicial custody during the pendency of trial for an offence which he is facing under Sections 376 (1) and 376 (2) (f) of Indian Penal Code registered as I C.R. No.200 of 2017 on 13.10.017 with Athwalines Police Station, Surat.
2. This is a successive bail application by the applicant and was heard since the applicant was permitted to file fresh application after receiving papers of further investigation including a report from Forensic Science Laboratory.
3. The short facts arise from the record are as under :-
4. That the prosecutrix, aged about 19 years, lodged the aforesaid FIR and described and alleged how the alleged offence took place.
Page 1 of 16R/CR.MA/14413/2018 CAV ORDER 4.1 She disclosed that she is a student and studying at
Gandhinagar whereas her parents are resident of Vadodara. She and her family belongs to Jain and follow the Digambar sect of Jainism. In the month of March 2017, her parents visited a temple known as Shri Parshwanath Digambar Jain Temple, Navi Pol, Mandvi and at that time, they came into contact with one Digambar Jain, namely, Acharya Shantisagarji Maharaj (present applicant). In the month of March 2017, in a 9 days festival Chaitariya Navratri, her parents visited the applicant and started learning about Jainism. On 31.3.2017, she visited her parents at Vadodara and along with her parents, she visited temple at Mandvi Pol and at that time, she along with her parents visited the applicant. The applicant provided his mobile number to the prosecutrix through her father and informed that he can bless her by telephonic communication. Her father being a disciple of applicant - accused supplied the number of the applicant to the prosecutrix. The applicant informed her father that he can give his number to the daughter and accordingly, a mobile number was given by her father. On 7.4.2017, she called the applicant on his mobile and sought blessings. Thereafter, after 2 or 3 days, the applicant called the prosecutrix and started talking in unusual manner and asking about her private body parts and told her not to inform anything about the conversation. Though she was terribly afraid of such behaviour, she did not inform the same to any other person. The applicant used to call her everyday but she was not picking up the phone. The applicant talked with her father asking him to inform the prosecutrix to talk with the applicant, but she did not call. Moreover, she was called again by the applicant and under the name of God, she was informed that something wrong is done with her. She was asked to send her naked photographs to the applicant. She did not sent her photograph or did not pick up the Page 2 of 16 R/CR.MA/14413/2018 CAV ORDER phone. On completion of the examination, the prosecutrix returned to Vadodara with her parents but did not inform about all these aspects to her parents. The applicant used to call the prosecutrix by different mobiles and was used to send whatsapp messages. If she picks up the phone, he was insisting to talk with him. On 30.9.2017, being Dusshera holidays, she has gone at Vadodara to meet her parents and at that time, her parents informed that the applicant has asked all family members to visit him since these days were auspicious ones. They were asked to come for darshan at night hours. On 1.10.2017, she along with her parents and her brother travelled from Vadodara to Surat and reached at about 8.30 in the evening at Mahavir Digambar Jain Temple, Surat. They visited the temple. At that time, the father of the prosecutrix received a phone call from the applicant and inquired the whereabouts of the family. He informed that all should visit the Jain Dharmashala where the applicant was residing for some time after darshan and accordingly, they visited the room of applicant which was situated on first floor. The applicant was asking the father of the prosecutrix about her, time and again. At about 9.30 hours, he went out of the room for sometime and came back and informed her parents that you have to pray the God and, therefore, they are required to sit in another room. Accordingly, both of them were made to sit in another room. He made some rituals by speaking some Mantras and asked them not to come out of certain area till he permits them. Her brother who is 2 years elder to her, was taken by the applicant to another room and was asked to sit there. Thereafter, the applicant came in the room where the prosecutrix was all alone. The applicant asked that she can demand anything. However, she said that she is happy with her family. Thereafter, after removing her clothes, the applicant threatened the prosecutrix not to raise any voice otherwise Page 3 of 16 R/CR.MA/14413/2018 CAV ORDER something would happen to her family and committed offence of rape. Thereafter, the prosecutrix was asked to wear clothes and called her family members. Before the family members were called, the prosecutrix was threatened by the applicant and was asked to visit him as and when he calls.
4.2 The prosecutrix along with her family members left for Surat at about 10.30 in the night hours. On the next day, when she was crying, on inquiry by her parents, she informed about the incident. However, she left for Gandhinagar to attend her college. Her mental health deteriorated and, therefore, her father came to Gandhinagar on 4.10.2017 and immediately she was taken to a Psychologist, namely, Dr. Ankita Jain and on inquiry, when she was informed about the incident, she advised to lodge a complaint about the incident. However, she as well as her family members were afraid of lodging of the FIR against a Monk, who has respect in public and particularly, amongst the disciples of the Jains. However, she gathered the courage and lodged the FIR on 13.10.2017.
5. The applicant came to be arrested in the offence and on completion of the investigation, charge-sheet came to be filed. The applicant had preferred an application being Criminal Misc. Application No.4249 of 2018 subsequent to filing of the charge- sheet before this Court which came to be disposed of permitting the applicant to file another application as stated herein above.
6. Pursuant to the notice issued by this Court, the State of Gujarat has been represented by learned Additional Public Prosecutor whereas the complainant has also opposed this application through learned advocate Mr. Pravin Gondaliya and has Page 4 of 16 R/CR.MA/14413/2018 CAV ORDER also filed affidavit-in-reply.
7. Mr. N.D. Nanavaty, learned Senior Counsel assisted by Mr. Pradip J. Patel, learned advocate appearing for the applicant has vehemently submitted that the FIR is nothing but a creation of story by the prosecutrix as well as her family members to have some money which the Temple gets through the Monk in some Jain rituals. He would submit that the conduct of the prosecutrix which is narrated by herself in the FIR itself creates doubt about the occurrence of the crime. He would submit that it is the case of the prosecutrix that the applicant used to call him and asking about indecent things. However, she did not inform to her parents and as stated by her, she visited the Temple and the applicant time and again which suggests something else and creates doubt about the say of all of them.
7.1 He would further submit that it is an admitted position that on 1.10.2017, she had paid visit to the applicant at Dharmashala at about 9.30 p.m. along with her father, mother and elder brother. He would submit that the statements of the prosecutrix, father, mother and brother are perused, the story put forward by them are not gullible particularly, in view of the fact that the alleged incident took place when the family members were sitting in the adjacent room. By taking me through the Panchnama of the scene of offence, he would submit that the rooms are adjacent to each other and if a serious crime like rape even attempted, she would raise an alarm and at that time, parents and brother could have immediately reached to the adjacent room where alleged incident has taken place. He would submit that even after alleged incident, immediately the entire family left for Vadodara. However, the prosecutrix did not inform her parents Page 5 of 16 R/CR.MA/14413/2018 CAV ORDER about the so-called incident, however, informed them on the next day. Though the parents were informed about the so-called offence of rape, none of them thought it fit to inform the Police authority, however, let the prosecutrix go to Gandhinagar for further studies. Even if it is believed that she has taken some treatment on 4.10.2017 and when the alleged offence was disclosed, the FIR came to be lodged only on 13.10.2017. This conduct of prosecutrix, her parents and brother create serious doubts about the alleged incident. He would submit that during the lectures by the Jain Monks, the followers of Jain religion offered certain amounts to perform particular rituals and the amount might be in Crores of rupees. By taking me through the statement of one Jayprakash Mahavir Prasad Jain dated 24.3.2018, Mr. Nanavaty would submit that in his presence, the father of the prosecutrix had demanded certain money from the applicant which was received for a particular ceremony. Since the same was denied, the FIR has been lodged.
7.2 Apart from this aspect, he would submit that the injury certificate of the prosecutrix as well as the applicant - accused does not support the case of the prosecution since no injuries were found. However, with regard to one injury which is referred in Column No.18 of the certificate of the prosecutrix, it is an old injury which does not relate the crime in question. He would submit that even the medical certificate of the applicant does not support the case of the prosecution.
7.3 Mr. Nanavaty would further submit that as far as report of Forensic Science Laboratory with regard to mobiles which are discovered during the investigation are concerned, it appears that some obscene photographs as well as obscene videos were found Page 6 of 16 R/CR.MA/14413/2018 CAV ORDER from the mobiles which were being used by the applicant, does not suggest that these photographs are of the prosecutrix or the applicant captured in the Mobile and, therefore, only having some obscene photographs / videos itself would not connect the applicant with the crime in question. He would further submit that the applicant is a Jain Digambar Monk and has left the worldly attachment and doing "Vihar" in various parts of country. He is behind bar since 13.10.2017 and if he is released, there are no likelihood of committing such offences or tamper with the evidence. He is ready and willing to abide by any conditions. He, therefore, would submit that the applicant be released on bail.
8. On the other hand, Ms. Moxa Thakkar, learned Additional Public Prosecutor has vehemently opposed this application and would submit that a serious offence has been committed by a Jain Monk with whom number of members of Jain community have immense faith and respect. She would submit that when a Monk in any religion calls upon their disciples to do or not to do certain things, they blindly follow them since they are having immense faith in them and they believe them as God and can teach them how to face the obstacles, miseries etc. of their daily life. She would submit that the prosecutrix is only 19 years of age and is studying at Gandhinagar and, therefore, her parents who had immense faith in the applicant, with whom they had continuous conversation at Vadodara, took her to temple. Thereafter, she was taken to the applicant for blessings. However, the applicant with ulterior motives asked the father of the applicant to give his mobile number (applicant's mobile number) to his daughter. The applicant thereafter from various mobiles called the applicant and talked in indecent manner. A girl aged of only 19 years and residing alone at Gandhinagar was under pressure, fear and therefore she did not Page 7 of 16 R/CR.MA/14413/2018 CAV ORDER inform her parents. That itself would not raise any doubt about the say of the applicant since all these phone calls are made by the applicant.
8.2 She would further submit that the applicant used to call the prosecutrix by different mobiles which is prima facie established by recording the statements of those witnesses who used to give their mobile instruments to the applicant, being his followers. She would submit that there was no reason for the applicant who has renounced the world and a Monk to make calls to a girl without any reason. Several numbers referred in the FIR from which the applicant used to call is supported by the evidence in the nature of statements of witnesses as well as the details about phone calls.
8.3 As far as the incident dated 1.10.2017 which has taken place at Surat is concerned, she would submit that CCTV footage collected during the investigation do establish that the prosecutrix along with family members had visited the place of incident, and at some point of time, the applicant accused is also seen moving in the area at night times. She would submit that the family of the prosecutrix was totally under influence of the applicant since they were chanting the Mantras in the other rooms as advised by the applicant. Similarly, her brother was also asked to sit in another room and chant the Mantras. This version of the prosecutrix was supported by the statement of father namely, Manoj, mother Vandanaben and brother Divyansh. She would submit that a young girl found herself all alone in a room under an influence of a person who is a Saint, was subjected to the crime of rape which is squarely covered as defined under Section 376 (2) (f) of the Indian Penal Code. She would submit that when the prosecutrix, her family Page 8 of 16 R/CR.MA/14413/2018 CAV ORDER members and the applicant are found in the CCTV Camera footage at the time of incident, there is no question of concocting a story as alleged by the accused. She would submit that the statement of Jayprakash Jain does not destroy the case of the prosecutrix since as per his statement, the father of the prosecutrix had talked with the applicant on 25.9.2017 since the case of the prosecutrix is that they had visited the place of incident only on 1.10.2017. The only statement relied upon by the accused does not brush aside the other evidence collected by the prosecution and particularly when the prosecutrix herself has clearly stated that she was subjected to crime of rape against her will. By taking me through the medical evidence of the prosecutrix, she would submit that on her private parts, some healed injury was found when she was examined on 14.10.2017.
8.4 Ms. Moxa Thakkar would further submit that as far as the submission made by learned advocate appearing for the applicant - accused with regard to delay in lodgment of the FIR is concerned, the so-called delay has been properly explained by the prosecutrix even at the time of lodgment of the FIR by disclosing that she had to undergo treatment under the Psychiatrist and having advised, accordingly the FIR came to be lodged. She would submit that an ordinary citizen would dare to lodge an FIR immediately against a Saint who has huge respect in the eyes of public and particularly of the disciples of Jain religion. The delay itself would not fatal the case of the prosecution when supporting evidence is on record. She would submit that there was no reason for the applicant to store obscene files in the nature of obscene photographs as well as video clippings in the mobiles which he was using. The FSL analysis disclosed that there were obscene videos and obscene images traced from the mobiles of the applicant. She, Page 9 of 16 R/CR.MA/14413/2018 CAV ORDER therefore, would submit that the applicant is involved in a serious offence which is punishable under Sections 376 (1) and 376 (2) (f) of Indian Penal Code and has misused his position being a Saint and, therefore, should not be entitled for any relief as prayed for.
9. Mr. Pravin Gondaliya, learned advocate appearing for the complainant has adopted the arguments canvassed by learned Additional Public Prosecutor and would submit that the applicant being an influential person, there are all possibilities that the witness may be tampered with. He, therefore, would submit that the present application may be dismissed.
10. Jainism is traditionally known as Jain dharma which is an ancient Indian religion. The main religious premises of Jainism are Ahimsa (non-violence), Anekantavada (many sidedness), Aparigraha (non-attachment) and Asceticism.
11. Jainism has two major ancient sub-traditions, Digambaras and Svetambaras and several similar sub-traditions. The Digambars (Sky Clad) the Monks/Saint do not wear clothes because they believe that salvation can be achieved by relinquishing all materialistic things including the clothes. The Digambar Monks go on Vihar (moving from one place to another place) without clothes and the followers do believe that they have relinquished all the materialistic things of the world. In the present case, the applicant - accused who has renounced the world uses mobile phones of his followers. A Jain monk would use the phone for the purpose alleged in the FIR, would not have thought by the followers who had given their mobiles. He give his mobile number to the father of the prosecutrix and asked him to tell his daughter to call and thereafter he called the prosecutrix who is Page 10 of 16 R/CR.MA/14413/2018 CAV ORDER aged only 19 years and asked ridiculous questions itself suggest the thought process of the applicant. This allegations made by the prosecutrix found some substance since the FSL report discloses storage of obscene photographs and video clippings having male and female therein.
The report dated 23.5.2018 of FSL discloses 35 CCTV video footages and in that, presence of male and female persons were found. This CCTV footages shows the presence of the prosecutrix, her family members as well as the applicant - accused. The details with regard to the mobile phones of the applicant does suggest number of stored obscene images of males and females. Obscene videos were also found which shows the males and females. In my opinion, having such type of photographs and videos suggest the mind of accused who is living in the Society as Saint since last few years. In my opinion, there is no reason to keep such videos or photographs by a Saint who teaches the followers of Jain religion to achieve salvation even remaining in the world without renouncing the same.
12. If the FIR filed by the prosecutrix and the statements of parents and brother of the prosecutrix are perused, they have categorically stated that the applicant had asked them to sit in separate rooms and were asked to chant certain Mantras till the accused did not ask to stop them. At this stage, I would not like to deal with the statements in detail since the trial is yet to be proceeded. However, it appears that in the room the incident has taken place, only the applicant accused and the girl - prosecutrix were present. Rest of the family members were asked to sit in different rooms and that too in night hours i.e. beyond 9.30 p.m. in winter season.
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13. As far as the submission made by learned Senior Counsel Mr. Nanavaty about the conduct of the prosecutrix and her parents is concerned, the same is required to be discarded at this stage considering the over all facts and circumstances of the case. The prosecutrix was aged only 19 years who was completely under domain of position of the applicant. When the prosecutrix was subjected to such a heinous crime by a Saint, it is obvious that a girl would be under trauma and would not dare to file FIR immediately. However, when her mental health got deteriorated, her father thought it fit to get her examined before the Psychiatrist and accordingly, she was taken to the clinic of Dr. Ankita Jain. In her statement, Dr. Ankita Jain has stated that whatever had happened at Surat, she had described before her and, therefore, she has advised her to approach the Police. It is true that prosecutrix along with her family members have taken few days to lodge the FIR, but that would not discard the say of the prosecutrix about the occurrence of the crime committed by the applicant.
14. The Hon'ble Supreme Court in the case of Kamalanantha & Others v. State of Tamil Nadu, reported in (2005) 5 SCC 194 while considering the case of rape has held that if the accused had dominion or control over the victim, would not help the accused even there might be a consent by a woman. Therefore, the contention raised on behalf of the applicant as far as delay in lodgment of the FIR is concerned would not help the applicant for getting the bail.
15. In another decision, the Hon'ble Supreme Court in the case of Shri Bodhisattwa Gautam v. Miss Subhra Chakraborty, reported in AIR 1996 SC 922 has held that an accused can be Page 12 of 16 R/CR.MA/14413/2018 CAV ORDER punished solely on the statement of the prosecutrix if it is found a reliable one. Relevant observations made in paragraph 10 by the Hon'ble Supreme Court reads as under :-
"10. Rape is thus not only a crime against the person of a woman (victim), it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crises. It is only by her sheer will herself in the society which, on coming to know of the raps, looks down upon her in derision and contempt. Rape is, therefore, the most hated crime. It is a crime against basic human rights and is also violative of the victim's most cherished of the Fundamental Right to Life contained in Article 21. To many feminists and psychiatrists, rape is less a sexual offence than an act of aggression aimed at degrating and humiliating women. The rape laws do not, unfortunately, take care of the social aspect of the matter and are inept in many respects."
16. As far as the statement of Jayprakash Mahavir Prasad Jain is concerned, in my opinion, the same cannot be totally relied upon because he states that the father of the prosecutrix was present on 25.9.2017, but there is nothing on the record that he was in Surat on 25.9.2017.
17. As far as the medical evidence of the applicant is concerned, the Doctors have opined in the Certificate dated 14.10.2017 as under :-
Page 13 of 16R/CR.MA/14413/2018 CAV ORDER "From the above examination, we are of the opinion that there is nothing to suggest that the person examined by us is incapable of performing sexual intercourse."
18. As far as the prosecutrix is concerned, the following injury was found which is referred in Column 18 of the Certificate dated 23.12.2017 which reads as under :-
"18. Local examination of genital parts / other orifices :-
A. External Genitalia : Record findings and state NA where not applicable.
Body parts to be Findings
examined
Urethral meatus & NAD
vestibule
Labia majora NAD
Labia minora NAD
Fourchette and 0.5 cm small healed
Introitus tear present.
Hymen Perineum Torn
External Urethral NAD
Meatus
Penis NA
Scrotum NA
Testes NA
Clitoropenis NA
Labioscrotum NA
Any other
* Per/Vaginum / Per Speculum examination should not be done unless required for detection of injuries or for Page 14 of 16 R/CR.MA/14413/2018 CAV ORDER medical treatment.
P/A findings if performed................................ P/A soft P/V findings if performed................................................ Record reasons if P/V of P/S examination performed :- Hymen torn, small old healed tear of 0.5 cm present over fourchette.
C. Anus and Rectum (encircle the relevant) Bleeding / tear / discharge / oedema / tenderness D. Oral Cavity - (encircle the relevant) Bleeding / tear / discharge / oedema / tenderness"
19. Examining the medical certificates issued qua prosecutrix as well as the applicant, prima facie, it appears that the applicant is an able person to perform the intercourse. Similarly, the injury found on the private part of the prosecutrix would be suggestive of having intercourse. However, without leading the oral evidence of the Medical Officers, it is premature to decide how old the injury is, on the prosecutrix.
20. Considering the overall facts and circumstances of the case, when the applicant - accused being a Saint and having a special position in the Society as well as an influential person, it can be said that he has domain over a young girl aged 19 years who did not disclose the occurrence of the crime immediately, but having suffered trauma and impact of the act by the accused, had to undergo Psychiatrist treatment and ultimately, got courage to lodge the FIR, would not entitle the applicant to get released on bail. This Court has not examined the evidence in detail at this Page 15 of 16 R/CR.MA/14413/2018 CAV ORDER stage as advised by the Hon'ble Supreme Court in various decisions. Hence, the present application stands rejected. Rule is discharged.
sd/-
(A.J.DESAI, J) SAVARIYA Page 16 of 16