Gujarat High Court
Papubhai @ Narendrabhai Ishwardas ... vs State Of Gujarat on 18 September, 2015
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
R/CR.MA/16971/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 16971 of 2015
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PAPUBHAI @ NARENDRABHAI ISHWARDAS JADWANI & 1....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR.HRIDAY BUCH with MR. M. M. MANSURI, ADVOCATE for the Applicant(s)
No. 1 - 2
MR HS SONI, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 18/09/2015
ORAL ORDER
1. This Application has been preferred under Section 439 of the Code of Criminal Procedure, 1973 in connection with the FIR bearing CR No. I- 129 of 2015 registered with Nadiad Town Police Station, Kheda for the offences punishable under Sections 376D, 328, 506(2) of the IPC and under Section 66(e) of the I.T.Act.
2. The brief facts of the case are that;
As per the complaint filed by the complainant, the applicant No.1 tempted the complainant to give work in film and then called the complainant at the farm house of Pintubhai Page 1 of 7 HC-NIC Page 1 of 7 Created On Sat Sep 19 01:40:17 IST 2015 R/CR.MA/16971/2015 ORDER where all the four accused administered alcoholic substance in the Maza cold drink bottle and committed rape upon the complainant and did videography and made clipping of the same. Thereafter they were threatening the complainant to upload the clipping of rape on the internet social media and they were calling her at the farm house and bunglows frequently and committing rape. They also threatened her to kill.
2. Heard Mr.Hriday Buch, learned counsel with Mr.M.M.Mansuri, learned counsel for the applicants. He has contended that applicants have not committed the offence in question. He has contended that it transpires from the passport of the applicant No.1 that he was not present in India from 26.5.2015 to 2.6.2015. He has contended that the complainant is a headstrong lady and indulging in number of illegal activities to extort money from the innocent people by filing false and fabricated criminal complaints. He has contended that one Ketanbhai who is claimed by the complainant to be husband of the prosecutrix is in fact not her husband but he is part of gang of complainant and indulging in this sort of criminal activities of extorting money from people. He has contended that as per say of the complainant when her husband is a film producer then how she had approached present Page 2 of 7 HC-NIC Page 2 of 7 Created On Sat Sep 19 01:40:17 IST 2015 R/CR.MA/16971/2015 ORDER applicants for getting role in the film. He has contended that husband of the complainant is having checkered history and Criminal Case No.43 of 2006 was filed against him wherein he is convicted by the learned Chief Judicial Magistrate, Anand. He has contended that the complainant has filed different complaints relating to the offence in question i.e. (1) FIR bearing CR No.I58 of 2013 registered with Vejalpur Police Station, Ahmedabad for the offence punishable under Section 376 of the IPC as well as under Sections 3(1), 12, 3(2) and 5 of the Atrocity Act, (2) FIR bearing No.CR No.I02 of 2010 registered with Saherkotda Police Station, Ahmedabad for the offence punishable under Section 376,328 and 506(2) of the IPC, (3) Complaint with Nadiad Rural Police Station for the offence punishable under Sections 498A, 328, 323, 294A, 114, 506(2), 406, 420 of the IPC and under Section 3.9 of the Prevention of Dowry Act as well as under Section 3(1)(10), 3(1)11, 3(1)12 of the Atrocity Act. The complainant has also filed an application under Section 9 of the Hindu Marriage Act being Family Suit No.499 of 2006 with the Family Court, Ahmedabad. The complainant has married nine times. The complainant has also filed complaint under Section 498A of the Indian Penal Code against other person. He has contended that FIR is lodged after a long delay of 10 days.
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R/CR.MA/16971/2015 ORDER
He has contended that complainant has filed statement under Section 164 of the Criminal Procedure Code on oath before the learned Judicial Magistrate First Class stating that some unknown persons threatened her on phone to lodge present FIR against the present applicants and, therefore, under pressure she has lodged the FIR in question. He has contended that applicants will be available for interrogation and will remain present during the trial before the trial Court. The applicants will not tamper with the evidence. He has prayed to grant bail to present applicants.
3. Heard Mr.H.S.Soni, learned APP for the respondent - State. He has vehemently opposed bail application. He has contended that it is case of gang rape. He has contended that offence in question is serious in nature. He has prayed to dismiss present application. He has further drawn attention of the Court to the chargesheet papers and contended that in the present case so far as provisions of Evidence Act are concerned, it is a case of gang rape and presumption is required to be drawn against the present applicants. No corroborative piece of evidence is required to be considered at this stage. He has contended that first when incident is disclosed by the complainant that should be considered and Page 4 of 7 HC-NIC Page 4 of 7 Created On Sat Sep 19 01:40:17 IST 2015 R/CR.MA/16971/2015 ORDER statement under Section 164 of the Criminal Procedure Code disclosed by the victim is not an issue to consider at the time of bail in favour of the present applicants.
4. I have gone through the complaint as well as chargesheet papers. In view of arguments made by the learned counsel for the applicants it is true that as disclosed by the learned counsel for the applicants the complainant has filed so many complaints against other persons at various police stations relating to offence in question. I have also gone through the statement made by the complainant under Section 164 of the Criminal Procedure Code before the Judicial Magistrate First Class wherein she has disclosed that present complaint was lodged by her due to threat given by someone. I have minutely perused provisions of Section 376D of the Indian Penal Code. It is true that statement of the prosecutrix can be considered without any corroborative piece of evidence, but in the present case when complainant herself has disclosed before the learned Magistrate in her statement under Section 164 of the Criminal Procedure Code that on account of threat given to her to implicate the present applicants in the offence in question she has lodged the present complaint against them. So far as presence of Page 5 of 7 HC-NIC Page 5 of 7 Created On Sat Sep 19 01:40:17 IST 2015 R/CR.MA/16971/2015 ORDER applicant No.1 is concerned, it is prima facie not established at the time of offence. In view of above observations without entering into merits of the case, I am of the opinion that prima facie this is a fit case to consider present application in favour of the applicants.
5. Considering the above, this Application is allowed. The applicants are ordered to be released on bail in connection with CR No. I- 129 of 2015 registered with Nadiad Town Police Station, Kheda for the offence alleged against them in this Application on each of them executing a Bond of Rs.25,000/ (Rupees twenty five thousand only) each with one solvent surety each of the like amount to the satisfaction of the trial Court and subject to the conditions that they shall
a) not take undue advantage of their liberty or abuse their liberty;
b) not to try to tamper or pressurise the prosecution witnesses or complainant in any manner;
c) maintain law and order and should cooperate the Investigating Officer;
d) not act in a manner injurious to the interest Page 6 of 7 HC-NIC Page 6 of 7 Created On Sat Sep 19 01:40:17 IST 2015 R/CR.MA/16971/2015 ORDER of the prosecution;
e) not leave the country without the prior permission of the concerned Sessions Judge;
f) furnish the address of their 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;
g) surrender their passport, if any, to the lower Court within a week.
6. If the breach of any of the above conditions is committed, the concerned Sessions Judge will be free to issue warrant or take appropriate action in the matter.
7. Bail before the lower Court having jurisdiction to try the case. It would be open to the trial Court concerned to give time to furnish the solvency certificate if prayed for.
8. Rule is made absolute. Direct service is permitted.
(Z.K.SAIYED, J.) KKS Page 7 of 7 HC-NIC Page 7 of 7 Created On Sat Sep 19 01:40:17 IST 2015