Gujarat High Court
Narayan Alias Narayan Sai Asharam Alias ... vs State Of Gujarat on 10 February, 2015
Author: S.G.Shah
Bench: S.G.Shah
R/CR.MA/16359/2014 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 16359 of 2014
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NARAYAN ALIAS NARAYAN SAI ASHARAM ALIAS AASHUMAL HARPALANI....Applicant(s) Versus STATE OF GUJARAT....Respondent(s) ================================================================ Appearance:
MR ND NANAVATY, Senior Advocate with MR JAL S UNWALA, Advocate with MS TEJAL A VASHI, ADVOCATE for the Applicant(s) No. 1 MR PK JANI, Addl.Advocate General with MR.R.C.KODEKAR, SP.PUBLIC PROSECUTOR for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE S.G.SHAH Date : 10/02/2015 CAV ORDER The applicant has prayed to enlarge him on regular bail in connection with FIR registered with Jahangirpura police station being C.R.No.I-31 of 2013 on 6.10.2013. Such prayer is u/s.439 of the Code of Criminal Procedure ('Cr.P.C.', for short). On perusal of FIR, which is produced at Annexure-A, it reveals that the victim has filed a complaint, which is registered as FIR u/ss.376(2)(k)(f), 377, 354, 357, 342, 346, 143, 147, 148, 149, 506(2) and 120B of the Indian Penal Code ('IPC', for short).
2. Though complaint is filed on 6.10.2013, the period of commission of offence is disclosed as "between December, 2001 till the Holy of the year 2002 and repeatedly thereafter". The bare reading of the complaint makes it clear that certainly a victim needs courage to disclose all such details. Though, it is argued by the applicant against her conduct after alleged period of commission of offence till filing of FIR since during Page 1 of 18 R/CR.MA/16359/2014 CAV ORDER such period at some point of time, she was attached with the activities of the applicant in his Ashrams as an Administrator and she has married in between to some third person and had approached the applicant for worshipping them and to get their blessings, thereby claiming intimacy and thus implied consent of the victim, reading of FIR reveals that there are certain allegations against the applicant, which for the sake of brevity need not be required to be produced in every next document in sequence like present judgment, but such details certainly results in nothing, but an insult of a women. However, so far as allegations in FIR are concerned, at least it is to be noted that it is pertaining to commission of offence of rape by applicant being in a position or control or dominance over the victim with allegation regarding unnatural offences, since there is allegation of intercourse against the order of nature, with assault and criminal force to victim with intention to outrage her modesty with assault or criminal force in wrongfully confining the victim in custody for committing above-referred offence with allegation of wrongful confinement in a secret place with other offences and threats to kill if such fact is disclosed to anyone. There is no dispute that applicant is holding dominance not only upon the victim, but upon large group of common men, many of them are his strong believers and followers, whereas many of them are relying upon the applicant and trust him and consider him as God or atleast next to God. It is also not disputed that considering the submission of learned senior counsel Mr.N.D.Nanavaty for the applicant that though they do not admit commission of any offence as alleged in the FIR by the applicant, their defence is mainly on following issues:-
(1) Delay in lodging the FIR.
(2) Conduct of the victim is to be considered as her consent, and (3) High handedness of prosecuting agency in conducting the inquiry and collecting the evidence with some ulterior motive.
3. In view of such primary scenario, now we have to examine the rival submissions, both in favour of the applicant to confirm his bail and Page 2 of 18 R/CR.MA/16359/2014 CAV ORDER material against him, which has restrained the competent Court to grant bail in his favour till date.
4. Since this is an application for bail, only prima facie evidence is needed to be scrutinized. Thereby, evidence in the form of chargesheet and police papers, which are available at present, cannot be scrutinized so as to conclude the possibility of conviction or otherwise of the accused after trial, except to scrutinize that whether prima facie evidence discloses commission of offence as alleged and involvement of accused, in commission of such offence in any manner whatsoever. If there is disclosure of commission of offence in the complaint and, thereafter, if there is prima facie evidence regarding commission of such offence, with an evidence to prove such commission by the accused and thereby his involvement in the offence, then, gravity of offence, position of complainant and victim to safeguard themselves against the repetition of any such offence by the accused and standard conditions of granting bail, needs to be examined viz. (1) chance of commission of similar offence by the accused, (2) possibility of hampering and tampering with the evidence and the witnesses by the accused, and (3) availability of accused during the trial i.e. chance of his abscondment etc.
5. In light of above preface, now let us examine the rival submissions and material on record. Learned senior counsel Mr.N.D.Nanavaty for the applicant has submitted that the case has been chased by the media and it became a sensitive issue within the society, and because of the hype in the media and for some unknown reasons, the investigating agency has given undue importance to this case. Though there is some substance either in the complaint or in the evidence so as to consider it as prima facie commission of offence by the applicant as alleged, it is further submitted that FIR in question is dated 6.10.2013 with an allegation that offence in question has been committed from December, 2001 till Holy Page 3 of 18 R/CR.MA/16359/2014 CAV ORDER of 2012 and at any time thereafter; thereby, a skeleton of so-called offence has woken up after 12 years, which is nothing, but a gross delay in filing the complaint and, therefore, in absence of proper explanation regarding such delay, no cognizance can be taken by the Court and, hence, the base of the investigation and chargesheet itself is improper, irregular and illegal.
5.1 It is further submitted that even after the alleged incident and for all that period she had worked as an Administrator of the Ashram. It is further submitted that only because one complaint was filed by somebody against the father of present applicant, probably complainant has with some ulterior motive filed such complaint against the present applicant also, though she had remained silent for 12 years and stayed in Ashram for six years. Against allegation regarding abscondment of the applicant before initial arrest after lodging of the FIR, it is submitted that applicant was advised to avail all legal remedies before arrest and, therefore, he had tried to avail all legal remedies to avoid his arrest and, ultimately, when he could not succeed in any such attempt, he was arrested on 4.12.2013 and, therefore, it cannot be said that, he was absconder and, hence, not entitled to bail. Thereby, it is also made clear that applicant is in custody since 4.12.2013 i.e. almost for 13 months.
5.2 It is further submitted that now investigation is completed and chargesheet is already filed as back as on 1.3.2014 i.e. before 10 months and it is already committed to the Court of Sessions on 22.4.2014 i.e. before 9 months, which is numbered as Sessions Case no.141 of 2014 and, therefore, now, there is no scope of hampering or tampering with the witnesses by the applicant and thereby he is entitled to bail. It is also submitted that complainant - victim is aged 31 years on the date of the Page 4 of 18 R/CR.MA/16359/2014 CAV ORDER FIR and complaint is filed against several persons, including the present applicant, amongst which except applicant, another 35 persons were arrested though name of only four persons are disclosed by the complainant and all those 35 persons are already released on bail, submitting that such situation shows that investigating agency is unnecessarily harassing several persons in such a case wherein the evidence shows that the complainant - victim has never uttered a word about any such incident for the period of more than 10 years. To substantiate above argument, the applicant has referred statement of the complainant within the complaint itself and read out certain lines from pages 20 to 24 of the record submitting that all such factual details disclosed by the applicant - victim herself makes it clear that she did not leave the place even after the alleged incident of rape, whereas any girl would have left the place if she has been raped or molested as explained in detail in such complaint. Thereby, it is submitted that the complaint seems to be unbelievable, when all such details are disclosed after 10 years. Such submissions are with reference to the allegations in the complaint, which is reproduced on page 26 of the record, but for the sake of brevity, they are not required to be reproduced herein.
6. It is further submitted that complainant did not leave the place after such alleged incident, whereas in general, a girl or a lady would have left the place, and it would be difficult for anybody to give minute details as it is done by present complainant after 10 years of alleged incident, which shows keenness of the applicant to state so. It is further submitted that since alleged incidents are before 10 years, there is no medical examination of anyone and, therefore, there is no corroborating evidence at all. It is also submitted that even after such alleged incident, the complainant has called her sister Sheetal to join the Ashram and both the sisters have stayed in the Ashram for couple of years till they married in Page 5 of 18 R/CR.MA/16359/2014 CAV ORDER the year 2010. Therefore, it is not believable that a girl if being raped as alleged would call her sister also at the same place, if they are not comfortable with the applicant in his Ashram.
7. It is further alleged that in fact Commissioner of Police is monitoring the investigation with some personal interest and, therefore, this becomes a personal case for the investigating agency and, therefore, several attempts are made to show that applicant has committed grave offence. However, though there is no evidence available to confirm the commission of offence as alleged, extra-ordinary care is being taken and unwarranted statements are recorded only with a view to harass the applicant.
8. With reference to two other girls (names are not disclosed herein to avoid further insult and damage to reputation of such girl witnesses), it is further contended that, in fact, it was a voluntary relationship, if at all it is proved and that there was offence committed by the applicant. It is also categorically stated that two real sisters have come forward and alleged against father and son duo in similar manner regarding commission of such a serious offence, which shows that in fact it is a motivated complaint by some group. In addition to such submission on factual aspects, when bail was rejected by the trial Court because of pendency of some other cases, at least for the case under the Prevention of Corruption Act, it is submitted that we have to consider the social set-up of the country where someone is ready and willing to either bribe for small needs like getting confirmation of railway ticket to any other thing, if it is beneficial to such person and, therefore, the entire concept of reverse trap of payment of bribe by the applicant is nothing but an intelligent show by the investigating agency to prove that applicant is involved in all such offences and thereby to see that he may not get the bail in any circumstance. The details of such other case would be discussed while Page 6 of 18 R/CR.MA/16359/2014 CAV ORDER considering the arguments of the prosecuting agency.
9. Thereby, in general, the applicant has contented that his custody is now not warranted on several counts and, therefore, he should be released on bail. It is submitted that for granting the bail, Court may impose any condition of any nature, but keeping the applicant in custody even after filing the chargesheet and considering the submission recorded herein above, is not only unwarranted, but against the settled principles of criminal jurisprudence and decisions of the Hon'ble Supreme Court in several cases. Learned senior counsel Mr.Nanavaty for the applicant is relying upon following decisions emphasizing that there is no corroboration either from the witnesses or through medical evidence or FSL report or Panchnama and in absence of corroboration, it would not be possible to convict the applicant and, therefore, it is submitted that when there is inordinate delay, absence of proper evidence and no other antecedence by the applicant and when there is no possibility of abscondment of applicant or tampering with the evidence by him, since chargesheet is now already filed, there is no need to continue his custody and that bail cannot be denied only on apprehension.
a. Kishan Singh (dead) through LRS. Vs. Gurpal Singh & Ors. reported in (2010)8 SCC 775 wherein Supreme Court reiterated the principles regarding delay in filing FIR holding that where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case. Learned senior counsel has referred paragraphs 21, 22 and 24. However, it is clear and obvious that though there cannot be any question for such settled legal position, but as emerges from such decision, in fact, the determination is with reference to the facts and circumstance of that case as already observed by the Supreme Court itself and what is concluded in paragraph 25 is also with reference to the observation that FIR was lodged with sole intention of harassing the respondents. Therefore, in absence of any such specific evidence that FIR is otherwise malafide and was lodged because of private or personal grudge and only with a view to Page 7 of 18 R/CR.MA/16359/2014 CAV ORDER enmesh the applicant, such judgment itself would not help the applicant to get rid off the prosecution against them. Mere submission of malafide in complaint is not sufficient, there must be some facts and details to consider that complainant had reason to file false complaint or her malafide intention. In absence of such details, the bail application is to be decided on its own merits.
b. Jagannivasan Vs. State of Kerala reported in 1995 Supp(3) SCC 204 wherein Supreme Court has acquitted the person from the charges u/s.376 when victim did not inform the commission of offence to her parents immediately after the incident and went to the dancing performance and though delay in filing of the FIR was only six days, and more particularly, when she was regularly visiting the house of the accused. On scrutiny of such judgment, again it becomes clear that the decision by the Apex Court is purely because of factual details and evidence before it and, therefore, such judgment would not help the applicant.
c. Rajesh Patel Vs. State of Jharkhand reported in (2013)3 SCC 791 wherein also delay of 11 days was considered fatal and termed as inordinate delay in lodging the FIR while acquitting the convict for the offence u/s.376 of the IPC. However, if we scrutinize the judgment, it becomes clear that acquittal was confirmed because of the fact that testimony of the victim was unnatural and improper and did not inspire confidence. Thereby, such decisions were taken after full-fledged trial and hence at the stage of considering bail application, there cannot be a presumption on either side.
d. Chandralekha & Ors. Vs. State of Rajasthan & Anr. reported in AIR 2013 SCW 3651 wherein delay of 6 years was considered fatal for the offence u/ss.498A and 406 of the IPC, more particularly when wife was residing with her husband and not with her in-laws and, therefore, FIR against the in-laws was quashed by the Supreme Court. However, it would not help the applicant to confirm the order of bail since offences and factual details are altogether different.
e. Madhavrao Jiwajirao Scindia & Ors. Vs. Sambhajirao Chandrojirao Angre & Ors. reported in (1988)1 SCC 692 whereinthe Hon'ble Supreme Court has held that the Court cannot be utilised for any oblique purpose and in the opinion of the Court when chances of an ultimate conviction are bleak and no useful purpose is likely to be served by allowing the criminal prosecution to continue, the Court may while taking into consideration about the special facts of the case, can quash the Page 8 of 18 R/CR.MA/16359/2014 CAV ORDER proceedings even at the preliminary stage. There is no question to quash the complaint, but only for such observation, it cannot be said that applicant is entitled to bail.
f. Sanjay Chandra Vs. CBI reported in 2012(1)GLH 93. Only because Hon'ble Supreme Court has granted bail to Sanjay Chandra and other accused in some scam cases, it cannot be said that same principle would apply to the case of present nature where offences are against humanity and grave as well as serious in nature. Therefore, it would not help the accused to secure bail in his favour.
g. P.Vijayan Vs. State of Kerala & Anr. reported in (2010)2 SCC 398. Such judgment is mainly regarding issue of discharge of an accused u/s.326 of the Cr.P.C. and, therefore, it is not of much relevance in this case.
10. As against that learned Addl.Advocate General Mr.P.K.Jani has submitted that irrespective of diverse submission by the applicant, the Court has to see the prima facie case and settled law applicable to bail. It is submitted that there is no prima facie case in favour of the applicant so as to release him on bail since statement recorded by the investigating agency specifically discloses commission of offence as alleged in the chargesheet by the present applicant and that too in clear and categorical terms and, therefore, when there is a prima facie evidence against the applicant so as to convict him for the alleged offences and when there is seriousness and gravity of such offence and considering the position of the applicant and the fact that he has committed the offence with the girls, who are otherwise in his influence, if not in control and though victims are not minor, practically, being a religious head, he was in charge and having dominance over the girls and, therefore, he has committed rape as a relative or guardian or teacher or a person in position of trust or authority towards women and even as a owner or management leader of his staff or atleast in control or dominance over the women and, therefore, he has committed a serious offence.
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11. So far as delay in filing the complaint is concerned, it is submitted that the limitation for such offence would be practically unlimited as provided under the law and that there are catena of judgments by the Hon'ble Supreme Court, which confirms that such type of complaint can be lodged even after such long delay. Learned Addl.Advocate General has read out several statements including statement of victim, wife of the applicant, inmates of the Ashram, relatives of both the sides, security guards and even followers of the applicant. It is also submitted that considering the age of the victim being 18 years only at the relevant time, it is quite obvious that she is under the influence of the applicant and, therefore, crime against her is serious in nature and no fault can be found from such a victim for not coming forward immediately after the incident.
12. A reference was also made to the case of applicant's father, namely, Asaram Bapu submitting that similar request by him has been negatived even by Hon'ble Supreme Court. Reference was because of the reason that the present complainant has got the courage to lodge such complaint even after long delay when similar complaint was lodged against father of the present applicant and so far as delay is concerned, it is submitted that since parents of the victim are followers of the applicant and his father, this 18 years old girl could not gather the courage due to social disturbance to lodge a complaint at the relevant time and more particularly because of dominating position of the applicant and his father.
13. It is further submitted that as many as six other FIRs are registered against the applicant or because of the disturbance created by the followers of the applicant and amongst them one is for killing the key witness and others are for injuring the key witnesses. List of those other FIRs are as under:-
1. Offence registered on 18.10.2013 with Umara Police Station being Page 10 of 18 R/CR.MA/16359/2014 CAV ORDER C.R.No.II-834 of 2013 in connection with the threats having being administered on telephone to kill Miss.Shobha Bhutda, IPS, concerned with the investigation against applicant.
2. Offence registered on 13.12.2013 with DCB Police Station being C.R.No.I-37/2013 under the provisions of Sections 6, 7, 8, 12, 13 etc., of Prevention of Corruption Act and Sections 213, 217 and 120B of the IPC.
3. Offence registered on 28.2.2014 with Khatodara Police Station being C.R.No.I-50 of 2014 under the provisions of Section 307 of IPC.
4. Offence registered on 10.3.2014 with Adajan Police Station being C.R.No.I-31 of 2014 under the provisions of Sections 307, 324 etc. of the IPC.
5. Offence registered on 16.3.2014 with Umara Police Station being C.R.No.I-69/2014 under the provisions of Section 307, 326 etc.
6. Offence registered on 23.5.2014 with Rajkot 'B' Division Police Station being C.R.No.I-133 of 2014 under the provisions of Sections 302, 307 etc. of the IPC.
14. It is further submitted that atleast one of the witness has been killed and three other witnesses have been seriously injured by the followers of the applicant whereas IPS officer has been threatened to kill and a huge amount of bribe i.e. Rs.8 Crores was offered by the applicant so as to distribute it amongst the police officers as well as during judicial proceedings in Court so as to confirm his bail and acquittal. Thereby, it is submitted that tendency of the applicant is to take law in his hands and, therefore, the applicant is not entitled to bail.
15. While referring several statements learned Addl.Advocate General has also referred the statement of Devendra Satish Shinde and Chayaben Chaudhari as well as SMS by the applicant confirming his activities, which certainly results into commission of an offence of rape when it is not by consent and under either of the provision of law when he is having a dominating position over the victim.
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16. Thereby, it is submitted by learned Addl.Advocate General that all the ingredients for granting the bail is not in favour of the applicant inasmuch as he was absconding for couple of months and evidence has been disturbed by his followers and there is every possibility of fleeing away by the applicant, if he is released on bail, so as to avoid to face the trial and the conviction and, therefore, requests to reject the bail application.
17. Learned Addl.Advocate General has relied upon several citations, details of which are briefly referred hereunder:-
a. Kamalananatha & Ors. Vs. State of T.N. reported in (2005)5 SCC 194 wherein Supreme Court has considered the issue of consent with reference to the offence of rape when girls were raped by founder of the Ashram holding that conviction can be based on testimony of prosecutrix alone without insisting on corroboration if the same inspires confidence.
Whereas with reference to the case of P.Vijayan (supra), it is submitted that the FIR and proceedings were initiated after 28 years of the incident. The Supreme Court has allowed to continue the proceeding by refusing to discharge the accused u/s.227 of the Cr.P.C.
b. Uday Shankar Awasthi Vs. State of Uttar Pradesh & Anr. reported in (2013)2 SCC 435 wherein Supreme Court has held that delay may not be the sole ground for dismissing the complaint at threshold and that in certain exceptional circumstances, taking into consideration gravity of charges, delay can be ignored. Though in such reported cases, ultimately, complaint was quashed, if we peruse the factual details, it was not on the ground of delay, but it was on the ground of factual details that it was subsequent and thereby second complaint for the same incident.
c. Japani Sahoo Vs. Chandra Sekhar Mohanty reported in (2007)7 SCC 394, wherein also the Hon'ble Supreme Court has held that mere delay in approaching a Court of law is not a ground for dismissing the complaint, considering the general rule of criminal jurisprudence that "a crime never dies". The principle is reflected in the well- known maxim nullum tempus aut locus occurrit regi (lapse of time is no bar to Crown in proceeding against offenders).
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d. Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav & Anr.
reported in AIR 2004 SC 1866wherein bail granted by the High Court was set-aside by the Supreme Court stating that High Court was not justified in granting bail on the ground that accused has been in custody for period of 3-1/2 years or that there is no likelihood of trial being concluded in near future without taking into consideration the factors referred to in such judgment. Such circumstances are listed in paragraph 11, which reads as under:-
(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence;
(b) Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
(c) Prima facie satisfaction of the Court in support of the charge; (See Ram Govind Upadhyay Vs. Sudarshan Singh and others (2002 (3) SCC
598) and Puran Vs. Rambilas and another (2001 (6) SCC 338).
e. State through reference Vs. Ram Singh & Ors. in Death Sentence Reference no.6/2013 a wellknown case of Nirbhaya in recent past and read over certain observations by the Apex Court in previous cases, which are reproduced by the Delhi High Court, I do not want to reproduce all such paragraphs, but it cannot be ignored that such fact is applicable in almost all cases of rape.
f. Tarun Tejpal Vs. State of Goa in Special Leave to Appeal (Criminal) nos.3149 and 3150 of 2014 dated 1.7.2014 wherein the Apex Court has granted bail to Tarun Tejpal against whom similar charges are levelled. However, such judgment without considering the factual details of that case, which is not available though copy of order is annexed as Annexure D with the petition itself.
18. I have perused the available record and considered the rival submissions. It is clear and certain at irrespective of all other submissions, the allegations against the applicant are of serious nature inasmuch as if at all he has committed such an offence as alleged, then, he can never be pardoned for the simple reason that he has taken disadvantage of his position and his power, created by him and his Page 13 of 18 R/CR.MA/16359/2014 CAV ORDER followers. It cannot be ignored that such religious heads are holding good control over the public at large because of their will and mind-power and, therefore, they are able to drag the people with them. For such reasons, if victim is under mental control of the applicant for such long time and if during such period, if victim was worshiping the applicant and his father and, thereafter, served under them, the position of the applicant is that of a guardian and, therefore, commission of any offence as alleged would certainly be a serious issue. Even if we consider it as a unhappy situation or proposition, the fact and law is clear that even if there is consent by a woman for sexual relationship and even if such relation is for a long time, but at the given point of time if there is sexual harassment of any woman without her consent, then, the person who has committed such sexual offence, cannot escape and is not entitled to the defence of consent. Whereas in the present case, so far as consent is concerned, it is the defence put forward by the applicant - accused, thereby, there is no specific clear admission of consent by the victim. Even for the sake of argument, if we believe that being in such a relationship for couple of years amounts to consent, the fact remains that if victim - girl complains about sexual harassment and more particularly commission of offence of rape and when there was no consent by her immediately before or at the time of such physical intercourse, it may amount to commission of an offence of rape.
19. Therefore, if we scrutinize the entire bunch of chargesheet i.e. police papers, it becomes clear that there is prima facie allegations of serious nature against the applicant. The other circumstance also confirms that applicant has a tendency to break the law inasmuch as he has tried to offer bribe of Rs.8 Crores, his followers killed the witnesses and he has even administered threat to the IPS officer, who was investigating the case and, therefore, if he is released on bail, there is every possibility of breach of peace either by the applicant or Page 14 of 18 R/CR.MA/16359/2014 CAV ORDER his followers and, hence, there is no case made out in favour of the applicant so as to release him on bail. Though there is no specific evidence to that effect at present, the possibility of fleeing away if released on bail so as to avoid the trial and conviction if offence is proved, will also restrict the Court to release the applicant on bail.
20. In view of above discussion, it becomes clear that no case is made out by the applicant so as to release him on bail. Though, it would not be proper to discuss the factual material, which is before the Court since it would otherwise prejudice the trial, but it is made clear that for such decision, this Court has relied upon all the statements, which are referred by both the sides, which makes it clear that there is sufficient evidence against the applicant to proceed against him and in view of such facts and circumstances, there is no substance in the application.
21. Before parting with the matter, a reference is to be made to the order dated 5.1.2015 by co-ordinate Bench in Criminal Misc.Application no.11220 of 2014 wherein Hon'ble Court (Coram: Hon'ble Mr.Justice A.J.Desai) has dealt with similar aspect while rejecting the bail application of the father of the present applicant. I am in agreement with the reasonings for such litigation, but I do not want to reproduce the same herein. It cannot be ignored that some accused, who were involved in conspiracy of greater offences committed by the applicant, have remained absconded since filing of the complaint and investigating agency could not trace them out till 5.1.2014 when Special A.P.P. had to request the trial Court to segregate the trial for such accused nos.6 to 8, so as to proceed against remaining accused.
22. As already recorded herein above, it is not advisable to reproduce the allegations in verbatim from the police record. However, it is to be made clear that on scrutiny of such statements, which are referred and relied upon by Addl.Advocate General, there is disclosure in categorical Page 15 of 18 R/CR.MA/16359/2014 CAV ORDER terms about nature of sexually harassing the women by the applicant and his father through their religious activities in their Ashrams. It is settled legal position that at the time of deciding bail application, possibility of acquittal or conviction is not to be looked into, but gravity of charges are to be considered based upon the prima facie evidence and as recorded herein above, there is certainly more than one prima facie evidence in the form of different statements by different witnesses to confirm that applicant has committed such serious offence. It cannot be ignored that investigating agency has to chase the applicant, who was avoiding his arrest for a pretty long time and, therefore, his explanation that he was hiding himself so as to avail legal remedy, does not help him. If at all he is innocent, he should have surrendered to the judicial authority at the earliest and co-operated the investigation. On the contrary, the fact is different inasmuch as he has not only hide and seek and allowed the police/investigating agency to trace him at different places before he could be arrested, and his followers have involved in several other offences to save his skin. All these facts certainly goes against him. It cannot be ignored that applicant has already withdrawn Special Criminal Application (Quashing) no.3103 of 2013 to quash the FIR against him and, therefore, now when chargesheet is filed, if there is sufficient evidence against him, what is required to be considered is the principles governing the order of bail rather than detailed evidence as discussed herein above. The activities by the applicant and his followers is certainly of such a nature, which restrains this Court from exercising the discretionary jurisdiction of granting the bail to the applicant.
23. So far as release of several other accused on bail are concerned, since copies of such bail applications are annexed with such bail application, it does not help the applicant inasmuch as if there is no material substance to continue their custody, those accused might have been released on bail. However, only because they are released on bail, it Page 16 of 18 R/CR.MA/16359/2014 CAV ORDER cannot be said that applicant is also entitled to bail, considering the allegations and activities of the applicant, which is disclosed in chargesheet as well as summarised in the above paragraphs.
24. I have also perused the judgment and order dated 16.7.2014 by the Addl.Sessions Judge, Surat in Criminal Misc.Application no.1796 of 2014 refusing bail to the applicant. Though such application is u/s.439 of the Cr.P.C., which can be decided independently from such judgment, it cannot be ignored that the learned Sessions Judge has taken care of each and every aspect of this issue and explained the factual details as well as relied upon the citations referred by the parties before it for refusing the bail. I am in agreement with observation and determination in such order and, therefore, there is no reason to deviate from such decision, which is based upon facts and law applicable to the present case.
25. It is settled legal position that for granting bail what is required to be considered is practically gravity of offence, nature and punishment, apprehension of tampering with witnesses or apprehension of threat to the complainant and/or witnesses and prima facie satisfaction of the Court in support of the charge. Therefore, if we scrutinize the entire record, it is certain that there is prima facie evidence against the applicant for confirming the commission of offence as per the charge levelled against him. Once there is a prima facie evidence regarding the alleged charges, nature of such accusation is certainly serious and if all the witnesses are allowed to depose without fear or favour, then, conviction and punishment is certain. Whereas the attitude and activities by the applicant is now clear that he has not only involved himself in one bribe case to get rid-off such charges and that one witness has been killed and three others seriously injured, even the investigating officer was threatened, therefore, there is no ground in favour of the applicant so as to release him on bail. Therefore, there is no substance in the application and, hence, same is dismissed.
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26. Rule discharged.
(S.G.SHAH, J.)
binoy
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