Gujarat High Court
Jitendrapuri Baldevpuri Goswami vs State Of Gujarat on 24 June, 2022
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
R/CR.MA/2043/2022 ORDER DATED: 24/06/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 2043 of 2022
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JITENDRAPURI BALDEVPURI GOSWAMI
Versus
STATE OF GUJARAT
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Appearance:
MR I H SYED, SR. ADVOCATE with MR SALIM M SAIYED(5172) for the Applicant(s) No. 1
MR SHAAN M MUNSHAW(10825) for the Applicant(s) No. 1
MR RJ GOSWAMI(1102) WITH MS. PUNITA H. JOSHI for the Respondent(s) No. 1
MR L B DABHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 24/06/2022
ORAL ORDER
1. Heard learned Senior Advocate Mr. I.H. Syed with learned Advocate Mr. Salim M. Saiyed with learned Advocate Mr. Shaan M. Munshaw for the applicant, learned APP Mr. L.B. Dabhi for the respondent-State and learned Advocate Mr. R. J. Goswami with learned Advocate Ms. Punita H. Joshi for the first informant.
2. This successive application is filed by the applicant under Section 439 of the Code of Criminal Procedure, 1973 for being released on regular bail in connection with F.I.R. being C.R. Part-A No.11191030200061 of 2020 registered with Mahila Police Station (West), Ahmedabad City, on 03.11.2020, for the offences punishable under Sections 376(D), 120(B), 406, 294(B), 506(2), 328, 362 and 114 of the Indian Penal Code and Section 17 of the Indian Passports Act.
3. At the outset, it is required to be noted that the applicant had originally preferred an application being Criminal Misc. Application No. 9650 of 2021 for being released on regular bail and whereas vide an order Page 1 of 14 Downloaded on : Sat Dec 24 19:29:37 IST 2022 R/CR.MA/2043/2022 ORDER DATED: 24/06/2022 dated 09.07.2021, this Court had permitted the applicant to withdraw the said application with liberty to approach this Court after recording of deposition of the prosecutrix in the trial or if the trial is not over within a period of six months, whichever is earlier.
4. At this stage, it is also required to be noted that this Court had directed the learned Trial Court to conduct the trial at the earliest subject to the pendency of other trials before the Court concerned.
5. It would further be required to be noted that in a hearing in this application which had taken place before this Court on 02.05.2022, learned Advocate Mr. R.J. Goswami for the first informant had raised the preliminary objection as regards the trial being delayed by the present applicant and other accused and whereas vide order dated 02.05.2022, this Court had rejected such preliminary objection. The said order being relevant for the present purpose is reproduced hereinbelow for benefit.
"Heard learned Senior Advocate Mr. I. H. Saiyed on behalf of the applicant, Ms. Maithili Mehta, learned APP for the respondent-State, Mr. R. J. Goswami, learned advocate for the respondent-State.
Mr. R. J. Goswami, learned Advocate raises preliminary objection that while this Court vide order dated 09/07/2021, had reserved liberty in favour of the present applicant to approach this Court for filing of a fresh application for regular bail, after six months, if the deposition of the prosectutrix is over or the trial is not completed.
Mr. Goswami, learned advocate, relying upon rojkam of the learned trial court, would submit that the applicants themselves had delayed the trial proceedings and whereas, the applicants had in-fact engaged advocates, on 10/12/2021, that too after order of the learned trial court dated 06/10/2021 whereby it was intimated that if the accused do not engage advocates to defend their case then the court would appoint Page 2 of 14 Downloaded on : Sat Dec 24 19:29:37 IST 2022 R/CR.MA/2043/2022 ORDER DATED: 24/06/2022 learned advocates on their behalf.
Mr. Goswami, learned Advocate would submit that having delayed the proceedings, it would not be open for the applicants to now state that the deposition of the prosecutrix could not be done within the period of six months stipulated by this Court. Learned advocate Mr. Goswami would , further draw attention of this court to an order dated 28/04/2022 whereby learned Coordinate Bench of this Court had quashed order dated 10/12/2021 passed by the learned Sessions Court, Ahmedabad of framing charges against the accused more particularly on account of non compliance of mandatory provisions of Sections 226 and 227 of the Criminal Procedure Code.
Mr. Goswami, learned Advocate would submit that it is because of said applications being preferred by the applicant and other accused, that the trial is stalled.
As against the same, learned Senior Advocate Mr. I. H. Saiyed would draw attention of this Court to rojkam and would submit that from 18/09/2021 to 06/12/2021, the accused were not produced before the concerned Sessions Court by the jail authorities more particularly on account of pandemic situation.
Learned Senior Advocate would submit that since it was on account of pandemic situation prevailing that the accused had not been presented before the learned Sessions Court and it is on account of such situation that even the applicant and other accused could not engage learned advocates well within time. Learned Senior Advocate would further submit that non production of the applicants, was not at the instance of the applicant himself and, therefore, it could not be stated that the applicants had in any way tried to delay the trial proceedings.
In so far as order passed by the Hon'ble Coordinate Bench of this Court, learned Senior Advocate would submit that exercise of legal rights by any person, could not be in any way stated to be dilatory tactics more particularly according to learned Senior Advocate, the order dated 28/04/2022 holding in favour of the present applicants, it could not be certainly urged by the learned Advocate for the complainant that the present applicants and other accused are delaying the trial.
Learned APP Ms. Maithili Mehta would submit that while it was open for the applicants to have engaged a learned Advocate before the learned trial court, at the same time, to a Page 3 of 14 Downloaded on : Sat Dec 24 19:29:37 IST 2022 R/CR.MA/2043/2022 ORDER DATED: 24/06/2022 specific query by this Court as to whether appearing before the court, in a trial proceedings, when the accused are in custody, would be at the discretion of the accused, learned APP would submit that the accused in custody does not have any discretion of such nature.
Learned APP would submit that on the date when the trial is fixed, the accused are presented before the trial court and whereas their non inclination to appear before the trial is inconsequential.
Having regard to the submissions made by learned Advocates for the respective parties, in the considered opinion of this Court, the preliminary objection raised by learned advocate Mr.Goswami cannot be considered. The applicants not being brought before the learned trial court could not be an aspect, which could in any way be attributable to the present applicant. This Court is also inclined to accept the submissions of learned Senior Advocate Mr. I. H. Saiyed that on account of pandemic situation, as a matter of course, accused were not produced before the learned Sessions Court and whereas such non production of the accused may not prejudice the present applicant. In so far as order passed by learned Coordinate Bench is concerned, this Court observes that in case, any person prefers any proceedings for exercise of his legal rights, the same could not in any manner be said to be dilatory tactics more particularly when subsequently, even in the proceedings concerned, an order has been passed upholding the contention of the party concerned.
Having regard to the same, in the considered opinion of this Court, the preliminary objection raised by learned advocate Mr.Goswami for the complainant stands rejected.
It appears at this stage that the complainant has submitted an application to the Investigating Officer inter alia alleging that she had received certain miss calls from the land line number which is stated to be of Ahmedabad Central Jail. It is the allegation of the complainant that such calls were at the behest of the accused to intimidate the complainant.
This Court had asked learned APP to verify the said aspects.
Learned APP, upon instructions, would submit that the jail authorities are not able to ascertain as to who had made the phone calls in question. Learned APP would submit that since the matter is pending before this Court, if appropriate Page 4 of 14 Downloaded on : Sat Dec 24 19:29:37 IST 2022 R/CR.MA/2043/2022 ORDER DATED: 24/06/2022 permission could be granted to the Investigating Officer to look into the said aspect, some further material could be found out.
Having regard to the submissions of learned APP, at this stage, in the considered opinion of this Court, let the entire issue be looked into by the I.G., Prison who would ensure that his subordinate authorities would report to him as to who had made the phone calls at the relevant point of time from the land line number. Let such report of the I.G., Prison be placed before this Court on or before 10/06/2022."
6. Learned Senior Advocate Mr. Syed relying upon the order dated 02.05.2022 would submit that while this Court vide order dated 09.07.2021, in the first application preferred by the applicant, permitted the applicant to withdraw the said application with liberty to move the Court after the deposition of the first informant is recorded or if the trial is not over within a period of six months, whichever is earlier. Learned Senior Advocate would submit that vide order dated 02.05.2022, this Court had rejected the preliminary objection that the trial had been delayed at the instance of the present applicant and other accused and whereas since the said order not being challenged either by the State or by the first informant, the same is final between the parties. Learned Senior Advocate would submit that since approximately a year has passed from the order dated 09.07.2021 and whereas the trial having not proceeded substantially and further even the victim not remaining present on certain dates, as per order dated 17.03.2022 passed by the learned City Civil and Sessions Court, Ahmedabad, where the trial is proceeding, and the present applicant being in custody in connection with the present offences since 10.11.2020, therefore it is requested that this Court may exercise discretion in favour of the present applicant.
6.1 Learned Senior Advocate Mr. Syed would also take this Court through the allegations levelled in the FIR and would submit that while the Page 5 of 14 Downloaded on : Sat Dec 24 19:29:37 IST 2022 R/CR.MA/2043/2022 ORDER DATED: 24/06/2022 FIR alleges commission of offences punishable under Section 376(D) etc. of the Indian Penal Code, but according to the learned Senior Advocate, looking to the narration in the FIR, the allegations appear to be improbable. It is submitted that even after alleging rape, the prosecutrix travels along with the accused for a considerable long distance, the first informant going on a vacation immediately, the first informant returning back from the vacation and accepting the hospitality of the accused including the present applicant would prima faice go to show that the allegations of commission of the heinous offence are not believable. It is further submitted that for the period between 20.08.2020 to 03.11.2020, i.e. the period from which the first informant came in contact with the applicant and other accused till the date of filing of the FIR, except for a brief period during which the first informant had gone on vacation to Goa, the entire time the first informant had enjoyed the hospitality of the applicant and other accused. It is submitted that as against the same, the first informant, intermittently alleges being raped on different dates but at the same time, she kept on accepting the hospitality of the accused would reflect the frivoulous nature of the allegations. It is further submitted that while allegation of having recorded the first rape, the first informant was being blackmailed also does not appear to be correct, since no such video has been recovered. It is further submitted that the proximate cause of the FIR as could be made out from the FIR is the fact of the accused No.1 having a quarrel with his wife - accused No.5, since the wife apparently did not approve of the first informant staying in a residential accommodation provided by her husband i.e. accused No.1 and others. It is therefore requested to release the applicant on regular bail.
7. This application has been vehemently opposed by learned Advocate Mr. R.J. Goswami with learned Advocate Ms. Punita H. Joshi appearing for Page 6 of 14 Downloaded on : Sat Dec 24 19:29:37 IST 2022 R/CR.MA/2043/2022 ORDER DATED: 24/06/2022 the first informant. Learned Advocate Mr. Goswami would submit that apart from the serious allegations levelled against the applicant and other co- accused in the FIR, the facts would reveal that the first informant was threatened and intimidated to settle the matter with the accused and therefore releasing the applicant on regular bail at this stage, would derail the trial since the applicant would attempt to tamper with the witnesses or try to influence the first informant. Learned Advocate Mr. Goswami would further submit that the first informant had filed an FIR against accused No.1, the present applicant and unknown persons being FIR No. 11216011220128 of 2022 with the Infocity Police Station, Gandhinagar, for offences punishable under Sections 507, 504 and 114 of the Indian Penal Code and Section 135 of the Gujarat Police Act, inter alia alleging that the first informant while she had gone to have dinner with her friend, she had threatened by two unknown persons on a motorbike with a knife and whereas on the same night at around 11:00 p.m. the first informant is stated to have received threatening phone calls abusing the first informant and asking her to settle the matter with the accused No.1 and the present applicant.
7.1 Learned Advocate Mr. Goswami as a matter of fact would submit that vide order dated 02.05.2022, this Court had directed the I.G. (Prisons) to inquire into an allegation as to the first informant having received certain missed-calls from the Ahmedabad Central Jail. Learned Advocate would submit that as such, the first informant had filed an FIR on 17.06.2022 with the Vastrapur Police Station, Ahmedabad City, with regard to threatening calls asking her to settle the matter with the applicant. Learned Advocate would submit that looking to the conduct of the present applicant and further considering the fact that the trial has not proceeded substantially, this Court may not release the present applicant on regular bail at this stage.
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8. Learned Additional Public Prosecutor Mr. L.B. Dabhi appearing for the respondent - State would also vehemently oppose the present application. Learned APP would submit that very serious allegations have been levelled against the applicant herein, more particularly of having raped the first informant and whereas learned APP would submit that having regard to the circumstances mentioned in the FIR, this Court may not exercise discretion in favour of the present applicant. Having regard to the direction of this Court in order dated 02.05.2022 as regards the phone calls received by the first informant from inside the Sabarmati Central Jail, learned APP would submit that after inquiry, it is revealed that during the time when the first informant had received the phone call, some other convict was talking over the phone who is in no way connected to the present applicant or even the other accused. As far as the allegation in the FIR of videos having been taken by the present applicant and the accused No.1 when the first informant had been allegedly raped, for the first time, learned APP would submit that during the course of investigation, no such videos have been recovered.
8.1 Insofar as the later allegations of being threatened etc., learned APP would tender a report to this Court by the LCB Police Station, Gandhinagar as well the Crime Branch Police Station, Ahmedabad, which would show that event after inquiry, no material could be found as regards the identity of the motorcyclists, who had allegedly threatened the first informant. Insofar as the the threatening phone call for which a subsequent complaint had been preferred, it is stated that upon inquiry, the number was being used by one Ravibhai Makwana who had purchased the sim card for Rs.10/- and since according to the said person, the sim card did not appear to work, he had thrown the sim card on the road. It is informed that the number in question, had been contacted from a different number and upon inquiry, it Page 8 of 14 Downloaded on : Sat Dec 24 19:29:37 IST 2022 R/CR.MA/2043/2022 ORDER DATED: 24/06/2022 was revealed that the said number was contacted to get off scene photographs and inspite of online payment being done, since no photographs had been received, the person who had contacted had blocked the number. Learned APP would submit that beyond such information the Investigating Officers could not find any material whereby the present applicant or other accused having allegedly threatened or cause to threaten the first informant.
9. In rejoinder, learned Senior Advocate Mr. Syed would submit that as such since the allegation of being threatened etc. appearing to be a design of the first informant to ensure that the accused are not released on regular bail, the accused had moved an application before the learned Sessions Court to direct the police authorities to given police protection to the first informant.
10. Having heard the learned Advocates for the parties and having perused the investigation papers and the documents on record, the following aspects are taken into consideration by this Court :
(1) That this Court had permitted the present applicant to withdraw the earlier application vide order dated 09.07.2021 with liberty to approach this Court in case the trial is not over or the deposition of the prosecutrix is not recorded within a period of six months. It appears that during the period of six months or even till today, neither the deposition of the first informant is recorded nor the trial is concluded.
(2) That the delay cannot be attributable to the present applicant, more particularly, as observed by this Court, the order dated 02.05.2022, has Page 9 of 14 Downloaded on : Sat Dec 24 19:29:37 IST 2022 R/CR.MA/2043/2022 ORDER DATED: 24/06/2022 not been challenged by the first informant or the State, as the case may be.
(3) As far as the merits is concerned, it appears that while the first incident of rape is alleged to have occurred on 11.09.2020, the first informant had neither complained at that time nor had she even raised hue and cry, rather it appears that while the alleged incident had taken place in Udaipur, the first informant had thereafter accompanied the present applicant and the accused No.1 from Udaipur to Ahmedabad. It further appears that the first informant was dropped at Ahmedabad Airport, from where she had gone to Goa on vacation. These facts prima facie reveal that probably no such incident had taken place on
11.09.2020, and therefore the first informant had behaved absolutely normally.
(4) It also appears that after returning from Goa, the first informant had accepted the hospitality of the present applicant, more particularly while the present applicant and accused No.1 were to provide residential accommodation to the first informant and since there was some issue with regard to such accommodation, at the instance of the present applicant, the first informant had put up in a hotel booked by the first informant. It appears that thereafter the first informant had stayed in the residential accommodation provided by the accused No.1 and the present applicant for at least couple of weeks. It also appears that thereafter the first informant had travelled along with accused including the present applicant to Gandhidham and whereas allegations of rape etc. have been levelled, which according to the first informant, happened during the journey and whereas there is no allegation against the present applicant of having participated. It also appears that even thereafter, the Page 10 of 14 Downloaded on : Sat Dec 24 19:29:37 IST 2022 R/CR.MA/2043/2022 ORDER DATED: 24/06/2022 first informant had, after returning to Ahmedabad, stayed in the residential accommodation provided by the applicant and other accused.
(5) It also appears that the proximate cause of the FIR being the fact that accused No.5 who was wife of accused No.1 did not appreciate the first informant being provided the residential accommodation and whereas there appears to be some altercation having taken place between the accused No.1 and his wife.
(6) The facts narrated hereinabove prima facie reveal that the first informant was on very friendly terms with the accused, more particularly accused No. 1 and the applicant. It also appears that allegation of rape appears to be unjustified, since all the while the first informant, had been enjoying the hospitality of the accused No.1 or the present applicant, as the case may be, and whereas there does not appear to be any justification for the first informant in continuously accepting the hospitality of the accused, when according to the first informant, she was being subjected to rape.
(7) It certainly does not appear that the first informant was not well educated or that she was from an economically or socially weak background, that she had no choice but to accompany the accused including the present applicant.
(8) The allegation of the first alleged rape being videographed and the first informant being subjected to blackmail on account of the same, also does not appear to be justified, since there is no material to substantiate the allegation of objectionable video of the first informant having been Page 11 of 14 Downloaded on : Sat Dec 24 19:29:37 IST 2022 R/CR.MA/2043/2022 ORDER DATED: 24/06/2022 taken, more particularly the investigation being over and the charge-sheet being filed not mentioning recovery of any video of the like nature.
(9) That the first informant not having clear cause to file the FIR on the given date, except that she had left the residential accommodation provided by the accused No.1 and the present applicant on account of altercation/fight between the accused No.1 and his wife.
(10) There being no material even after inquiry/investigation to show that the present applicant was in any way intimidated or threatened at the behest of the accused in general and the present applicant in particular.
Having regard to the observations with regard to the delay and more particularly considering the fact that the present applicant is in custody since 10.11.2020 and having regard to the prima facie observation on merits, in the considered opinion of this Court, the case for release of the present applicant on regular bail is made out. Further considering the allegations that the first informant has been threatened at the instance of the accused, this Court deems it appropriate to impose stringent conditions, to balance equities, while releasing the applicant on regular bail. This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra v. Central Bureau of Investigation reported in [2012]1 SCC 40.
11. In the facts and circumstances of the case and considering the nature of the allegations made against in the First Information Report, without discussing the evidence in detail, prima facie, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail.
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12. Hence, the present application is allowed. The applicant is ordered to be released on bail in connection with F.I.R. being C.R. Part-A No.11191030200061 of 2020 registered with Mahila Police Station (West), Ahmedabad City, on executing a bond of Rs.2,00,000/- (Rupees Two Lacs only) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that he shall;
[a] not take undue advantage of liberty or misuse liberty; [b] not act in a manner injurious to the interest of the prosecution; [c] mark presence before the concerned Police Station on every alternate Monday for a period of six months, between 10:00 a.m. and 5:00 p.m. or till the deposition of the first informant is over in the trial court; [d] surrender passport, if any, to the lower court within a week; [e] not leave the State of Gujarat without prior permission of the Sessions Judge concerned;
[f] furnish the present address of residence to the I.O. and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court;
13. The Authorities will release the applicant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter.
14. Bail bond to be executed before the lower court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions in accordance with law.
15. At the stage of trial, the trial court shall not be influenced by any observations of this Court which are of preliminary nature made at this Page 13 of 14 Downloaded on : Sat Dec 24 19:29:37 IST 2022 R/CR.MA/2043/2022 ORDER DATED: 24/06/2022 stage, only for the purpose of considering the application of the applicant for being released on regular bail.
16. The application is allowed in the aforesaid terms. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(NIKHIL S. KARIEL,J) BDSONGARA Page 14 of 14 Downloaded on : Sat Dec 24 19:29:37 IST 2022