Gujarat High Court
Bharat Jasmatbhai Barvaliya vs State Of Gujarat on 14 July, 2020
Equivalent citations: AIRONLINE 2020 GUJ 1268
Author: B.N. Karia
Bench: B.N. Karia
R/CR.MA/9267/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 9267 of 2020
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BHARAT JASMATBHAI BARVALIYA
Versus
STATE OF GUJARAT
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Appearance: MR S B TOLIA WITH MR. DHRUVIN U MEHTA(9993) for the
Applicant(s) No. 1
MS. M.H. BHATT, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE B.N. KARIA
Date : 14/07/2020
ORAL ORDER
Ms.Khushbu Vyas, learned advocate states that she has received instructions to appear for and on behalf of the original complainant. She shall file her Vakalatnama before the Registry. Registry shall accept the same.
Rule returnable forthwith. Learned APP waives service of notice of rule for and on behalf of respondentState and Ms. Khushbu Vyas, learned advocate waives service of notice of rule for and on behalf of originalcomplainant.
The present successive bail application has been preferred by the applicant/ accused to get regular bail U/s.439 of the Code of Criminal Procedure, in connection with the offence registered at Amroli Police Station vide C.R.No.11210004200092/2020 for the offence punishable Page 1 of 10 Downloaded on : Tue Jul 14 22:09:22 IST 2020 R/CR.MA/9267/2020 ORDER U/s.376(3), 376(2)(j), 376DA, 506(2), 114 of the Indian Penal Code, under Sections 3, 4, 5(G), 6, 7, 8 of the Protection of Children from Sexual Offences Act, 2012 and under Sections 3 and 5 of the Immoral Traffic (Prevention) Act, 1956 after filing of the chargesheet.
The brief facts of the case are that, prior to filing of the complaint, the minor victim, daughter of the complainant was found upset since one week, and when the complainant asked the reason, she narrated that since three months back, accused Bharatbhai @ Darbar Karsanbhai had taken away the victim under the pretext of offering job for her and committed sexual intercourse with her against her will. The victim also stated that accused Bharatbhai @ Darbar Karasanbhai had indulged her in prostitution by inducing repayment of money borrowed by her father and the present applicant/accused and other accused had committed sexual intercourse with her, and hence, complaint was lodged by father of the victim. Thereafter, applicant/accused was arrested and sent to judicial custody and hence, applicant/accused approached learned Sessions Court by Page 2 of 10 Downloaded on : Tue Jul 14 22:09:22 IST 2020 R/CR.MA/9267/2020 ORDER filing Criminal Misc. Application No. 554 of 2020 seeking bail but vide order dated 29.01.2020, learned Special Judge (POCSO) and Additional Sessions Judge, Surat rejected the request of the applicant releasing him on bail. Thereafter, the applicant approached this Court by way of Criminal Misc. Application No. 3831 of 2020 and this Court vide order dated 21.05.2020, passed detailed order rejecting the said application. Present successive bail application has been filed by the present applicant on the ground of charge of circumstances as complainant and witness have filed their affidavit in favour of the present applicant.
Heard learned advocate for the applicant, learned advocate for the original complainant and learned APP for the respondentState.
Learned advocate for the applicant submits that applicant is innocent person and he is falsely implicated in the present offence. He further submits that the complainant on 23.01.2020 has executed one affidavit before Sessions Court, Surat stating that the victim while informing the complainant (victim's father) Page 3 of 10 Downloaded on : Tue Jul 14 22:09:22 IST 2020 R/CR.MA/9267/2020 ORDER was not in good state of mind and has by mistake involved the name of the present applicant in the said FIR. In the affidavit it is also been stated that the present applicant has not committed any offence as alleged in the FIR and has no objection if the present applicant is enlarged on regular bail. He further submits that witness Bhumi, who has identified the present applicant in T.I. Parade, has executed one affidavit stating that the police officials mentally tortured her and without giving her ample amount of time to identify the persons present over there, forced her to identify an unknown person named Bharat who was present there during the T.I. Parade. In the affidavit, it is also stated that the person who visited her flat with the victim was 2830 years adult and the person who was brought before her was a person of 5060 years of age, whom she has never seen before T.I. Parade. He further submits that investigation is over and chargesheet is filed. Hence, it is requested by learned advocate for the applicant to allow this application as this is successive bail application after filing of charge sheet.
Per contra, learned APP for the respondentState has Page 4 of 10 Downloaded on : Tue Jul 14 22:09:22 IST 2020 R/CR.MA/9267/2020 ORDER objected the submissions made by learned advocate for the applicant and submitted that the victim was only 13 years old at the time of incident and her statement has also been recorded before the I.O. The applicant/accused and main accused Bharatbhai @ Darbar Karsanbhai had taken away victim at the house of eye witness and present applicant/accused had committed sexual intercourse with her by paying amount to the main accused Bharatbhai @ Darbar Karsanbhai. The applicant/ accused had committed sexual intercourse with the victim against her will, though he knew that she is a minor. From the complaint and statement, primafacie involvement of the applicant/accused is made out. The complainant has filed present complaint immediately after receiving information from the victim and other witness. Applicant has tried to temper with prosecution witnesses by producing their affidavits which may not be considered by this Court at this juncture. She requested to dismiss the application.
Learned APP for the respondentState has further submitted that the charge sheet has been filed on 28th February Page 5 of 10 Downloaded on : Tue Jul 14 22:09:22 IST 2020 R/CR.MA/9267/2020 ORDER 2020 and filing of charge sheet was also considered while deciding previous application. That, earlier this Hon'ble Court in Criminal Misc. Application No. 3183 of 2020, by passing detailed order, rejected the prayer of regular bail made by the present applicant and this is successive bail application and thus, present application is not maintainable as there is no change of circumstances.
Learned APP for the respondentState submits that filing of affidavit by the original complainant is the act of winning over the victim and thus as such, there is primafacie involvement of the applicant/accused as alleged, which is clearly on record and considering seriousness and gravity of the offence, learned APP for the respondentState has prayed to reject the bail application.
Learned advocate for the original complainant has supported the arguments advanced by learned advocate for the applicant and submitted that the name of the present applicant was not disclosed in the complaint. He was wrongly identified by witness in a T.I. Parade as no sufficient opportunity was given to identify the correct person by the witness. That original Page 6 of 10 Downloaded on : Tue Jul 14 22:09:22 IST 2020 R/CR.MA/9267/2020 ORDER complainant has no objection if the prayer made by the applicant for granting bail would be accepted by this Court and hence, it was requested by her to pass necessary orders.
Having considered the facts of the case and submissions made by learned advocates for the respective parties, it is apparent that the present applicant/accused is the person who had committed sexual intercourse with the minor victim against her will, though he knew that the victim was minor, and he has not informed the Police or parents of the victim. It appears from the record that the role of applicant/accused is active in sexual intercourse with the victim and considering the seriousness and gravity of offence, the act alleged is done against the victim aged below 14 years, and it is a fact that the allegation is of Immoral Trafficking by accused Bharatbhai @ Darbar Karsanbhai who is the friend of the applicant/accused, and allegation of committing sexual intercourse against the will of the minor victim is clearly made out on record. It is prima facie evident that present applicant/accused had relation with accused Bharat @ Darbar Karsanbhai, and Bharat @ Darbar Karsanbhai had Page 7 of 10 Downloaded on : Tue Jul 14 22:09:22 IST 2020 R/CR.MA/9267/2020 ORDER indulged the helpless minor victim forcefully in immoral trafficking. In this regard, the case of prosecution is supported by statements of independent witnesses and the victim and the witness had identified the applicant/accused in T.I. parade. Therefore, helping in commission of the offence under Immoral Traffic (Prevention) Act by the applicant/accused becomes evident. This Court is of the view that filing of the charge sheet cannot be considered to be the change of circumstances, as it was considered in previous bail application. An act of filing of the affidavit by the original complainant can be said to be winning over the victim and/over complainant.
The present successive bail application of the present applicant cannot be entertained as this Court is not satisfied that after rejecting the previous application of bail preferred by the present applicant and filing of present application, in the meantime, there has been a material change in the circumstances, which warrants reconsideration of the matter. While deciding the previous application preferred by the present applicant for bail, affidavits of original complainant and witness Page 8 of 10 Downloaded on : Tue Jul 14 22:09:22 IST 2020 R/CR.MA/9267/2020 ORDER Bhumi were already available with the present applicant. If these two affidavits were not produced by the present applicant in the previous application, in a subsequent i.e. successive bail application, this Court will not consider at all when the earlier application for bail was refused. This Court has taken into two basic considerations namely (i) the present applicant would take up the trial without hampering it and (ii) whether he would subject himself to the verdict of the Court. Besides, these other factors such as serious nature of the offence and other circumstances relating thereto have to be taken into consideration by this Court. At this juncture, the Court will avoid elaborate the documentation on merits while dealing with the application for bail. This Court cannot go into detail of evidence to find out whether the evidence will be sufficient in establishing the guilt of the accused as it is not a relevant consideration at this stage to ascertain the probability and improbability of the prosecution case terminating in the conviction of the accused or not. Detailed examination of the evidence as well as the affidavit of the prosecution witnesses produced before this Page 9 of 10 Downloaded on : Tue Jul 14 22:09:22 IST 2020 R/CR.MA/9267/2020 ORDER Court on merits is not desirable and should be avoided while passing orders on bail application. Prima facie, this Court is satisfied from the material of the prosecution involvement of the applicant in the offence. At the stage of considering the bail, it would not be proper for the Court to express any opinion for merits or demerits of the prosecution case as well as the defence raised by the applicant by filing affidavit of the original complainant and one witness of the prosecution. It would be for the Trial Court to consider and appreciate the evidence when the case comes before it for trial. This Court cannot go into merits of the affidavit at the stage of deciding the application as any expression of opinion by this Court would individually affect the trial.
Thus, this Court does not find any substance to exercise discretion in favour of the applicant/accused by enlarging him on bail in successive application as there is no change of circumstances, and therefore, present application stands dismissed. Rule stands discharged.
(B.N. KARIA, J) TAUSIF SAIYED Page 10 of 10 Downloaded on : Tue Jul 14 22:09:22 IST 2020