Gujarat High Court
Kasushal Thakur @ Hanuman Lalbahadur ... vs The State Of Gujarat on 17 July, 2014
Author: A.J.Desai
Bench: A.J.Desai
R/CR.MA/8466/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 8466 of 2014
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KASUSHAL THAKUR @ HANUMAN LALBAHADUR VIVEKANAND
THAKUR....Applicant(s)
Versus
THE STATE OF GUJARAT....Respondent(s)
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Appearance:
MR, N.D.NANAVATY, LEARNED SENIOR ADVOCATE for MS TEJAL A VASHI, ADVOCATE for the
Applicant(s) No. 1
MR RC KODEKAR, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.J.DESAI
Date : 17/07/2014
ORAL ORDER
1. By way of the present application filed under Section 439 of the Code of the Criminal Procedure, the applicant has prayed to release him on regular bail during pendency of the trial in connection with F.I.R. registered at C.R. No. I 31 of 2013 with Jahangirpur Police Station, District Surat for the offences punishable under sections 376(2)(k)(f), 377, 354, 357, 342, 346, 323, 143, 147, 148, 149, 506(2) and 120(B) of the IPC.
2. Brief facts arise from the record are as under:
2.1. That the prosecutrix has lodged FIR on 06.10.2013 against one Narayan @ Narayan Sai, son of Godman Asaram Bapu, the present applicant, other accused namely Ganga and Jamna, who are also devotees of accused No. 1 Narayan Sai and other persons, who may be found for responsible for committing the said offence. It is alleged by the prosecutrix that in the Month of December, 2001, she visited the Ashram at Jahangirpur, Surat, which belongs to one Asaram Bapu, father of original accused No. Page 1 of 8 R/CR.MA/8466/2014 ORDER 1 - Narayan Sai, where some shibirs were arranged. It is alleged in the FIR that the prosecutrix along with her parents was standing in a queue for darshan of Naranyan Sai and Asaram Bapu. Narayan Sai handed over some prasad in the hand of the prosecutrix and pressed her hand and asked for to visit the Ashram situated at Meghnagar, Madhya Pradesh. The prosecutrix visited the said place along with other girls for few days. It is further alleged that most of the girls were asked to leave the place and the prosecutrix along with other seven girls were asked to stay further since there was plan of construction of the Ashram.
She stayed for three months at Meghnagar. It is alleged that when she was at Meghnagar, the devotees of Narayan Sai namely Ganga and Jamna visited the ashram and asked her to talk with Narayan Said on phone and she talked on phone with Narayan Sai.
2.2. In the next year, around Holi festival, she visited Bihar and stayed there for about 1½ months. It is further alleged that said Narayan Sai called her in kutiya (a hut) and molested her, however, she left the said hut, but did not inform to anybody about the incident.
2.3. Thereafter, the prosecutrix and other girls were stayed in Jaynagar for two days, and thereafter, for two days in Kathmandu. By Kathmandu to Janakpuri train, she returned to Nala Sopara, Maharashtra and after attending the shibir at Nala Sopara, Maharashtra, she returned to her home at Surat. She received a call from Narayan Sai and was asked to attend the shibir in Jahangirpur, Surat and was also asked to talk with the devotee namely Hanuman, who is present applicant in the application. After reaching at ashram, she called from S.T.D. P.C.O to the present applicant on his mobile that he had reached at ashram.
Page 2 of 8R/CR.MA/8466/2014 ORDER 2.4. Thereafter, after completion of satsang, when she was standing near a tree along with other girls, at that time, the present applicant called her, and thereafter, she followed him and went into back side of the ashram and went near Narayan Sai's kutiya. When she entered in the kutiya, she found that Narayan Sai was sitting on the chair and she was asked to sit on the floor and thereafter, Narayan Sai committed the offence registered under sections 376 and 377 of the Code. It is the case of the prosecutrix that since Narayan Sai and his father Asaram Bapu, who are impersonated as Godman and are head strong persons, she did not inform about the incident to anybody, however, when she came to know that an offence against said Asaram Bapu, who is father of Narayan Sai, lodged at Jodhpur, she dared to file FIR against Narayan Sai, and therefore, she filed present FIR in the Month of October, 2013.
2.5. Pursuant to FIR lodged against the main accused namely Narayan Sai, along with the present applicant arrested by the Investigating Agency on 04.12.2013 from Punjab. After completion of investigation, the Investigating Agency submitted charge sheet on 01.03.2014.
2.6. The present applicant filed application for releasing him on bail before the Sessions Court, which has been rejected. Hence, the present application.
3. In response to the notice issued, the Investigating Agency has filed affidavitinreply.
4. Mr.N.D.Nanavaty, learned Senior Advocate assisted by Ms. Tejal Vashi, learned advocate appearing on behalf of the present Page 3 of 8 R/CR.MA/8466/2014 ORDER applicant has vehemently submitted that the Investigating Agency has failed to establish any offences as alleged against the present applicant. He would further submit that the Investigating Agency has failed to establish, even prima facie, the charge of Section 120(B) of the IPC levelled against him apart from other serious offences. He would further submit that there is delay of more than 10 years in lodging FIR, which creates doubts about the intention of the prosecutrix.
5. By taking me through further statement of the prosecutrix, he would further submit that she was standing near a tree with other girls (as stated in FIR), at that time, the present applicant called her, and therefore, she informed the other girls that she had some work, and therefore, she is going to home. She further stated that when she reached near the tree adjacent to the kutiya, the present applicant left the place. The kutiya was opened and she entered in the kutiya, where she found that the present Narayan Sai was sitting on the chair. The only role attributed to the present applicant is taking the prosecutrix upto a particular place i.e. kutiya and thereafter, she herself entered into kutiya. He would further submit that except the statement of the prosecutrix and the role attributed to the present applicant, there is no evidence against the present applicant. He would further submit that some of the witnesses have stated that the present applicant along with other accused persons namely Ramesh Malhotra, Monica Agrawal, Ganga and Jamna were used to remain present in all the shibirs and were helping Narayan Sai for selecting the girls for his ill wish. He would further submit that Ramesh Malhotra, Ganga and Jamana have been enlarged on regular bail and other lady Monica Agrawal, who has played similar role in the offence, has also been Page 4 of 8 R/CR.MA/8466/2014 ORDER enlarged on anticipatory bail. He would further submit that the role attributed to the present applicant and one Ramesh Malhotra, who has also played similar role in nature, has been enlarged on bail by the Trial Court. However, the Trial Court has refused to release the present applicant. Therefore, the present applicant may be released on bail. He would further submit that out of 36 accused, 34 accused have been enlarged on bail except the main accused i.e. Narayan Sai and present applicant.
6. On the other hand, Mr.R.C.Kodekar, learned APP opposed this application and would submit that the present applicant is conspirator with the main accused and had hatched the conspiracy for the serious offences of under section 376 and 377 etc. He would further submit that the present applicant has played active role by taking the prosecutrix upto kutiya, wherein present serious offence of section 376 is taken place.
7. Learned APP drove the attention of this Court towards the statement of one Avani @ Priti, who has categorically stated that the present applicant was the person, who was selecting the girls for the main accused.
He would further submit that subsequent to lodging of FIR, other devotees have attacked those persons, who have tried to support the prosecutrix and against those persons, the offences are registered. He would further submit that if the present applicant is enlarged on bail, he may tamper with the evidence or threaten the witnesses.
8. I have heard learned advocate for the respective parties. Perused the papers of investigation. I have also gone through the FIR as Page 5 of 8 R/CR.MA/8466/2014 ORDER well as several further statements of the prosecutrix and statements of Devendra Prajapati, Avani @ Priti and Chandan. Prima facie, it appears that the present applicant is also devotee of the Asaram Bapu, who is used to accompanying the main accused. However, the role of the present applicant in the present case is only that he has led the prosecutrix upto particular place i.e. kutiya. It is an undisputed fact that there is no other role played by him. Therefore, in my opinion, at this stage, would be only of an abettor. It is also true that no other witnesses have come forward before the investigating agency that the present applicant had played similar role in some other incidents. Other witnesses have made general allegations, which are of similar nature, made against Ramesh Malhotra, Monica Agrawal, Ganga and Jamna, who have been already enlarged on bail.
It is also pertinent to note that the warrant under Section 70 of the Code of the Criminal Procedure issued by the learned Magistrate against the present applicant has been quashed and set aside by the Coordinate Bench of this Court.
It is also pertinent to note that with regard to subsequent offences registered against other devotees, they have been enlarged on bail.
9. Time and again, as advised by the Hon'ble Apex Court, detail scrutiny of the evidence is not required at this stage and as well as to be dealt with the same in detail, which may come in the way at the time of trial.
10. Considering the offence as alleged in the FIR and also considering the nature of allegations made in the FIR, I am of the opinion that Page 6 of 8 R/CR.MA/8466/2014 ORDER this is a fit case to exercise the discretion to enlarge the applicant on bail. Hence, the application is allowed and the applicant is ordered to be released on bail in connection with C.R. No. I 31 of 2013 with Jahangirpur Police Station, District Surat on executing a bond of Rs.50,000/ (Rupees Fifty Thousand only) with one local 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 injuries to the interest of the prosecution;
[c] surrender passport, if any, to the lower court within a week;
[d] not leave the State of Gujarat without prior permission of the Sessions Judge concerned;
[e] shall not visit any ashram belongs to Narayan Sai or Asaram Bapu situated at in any cities or states.
[f] mark presence at the concerned police station on every Monday for a period of one year and thereafter on alternate Monday till the trial is over;
[g] 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;
11. 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. 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. At the trial, the trial court shall Page 7 of 8 R/CR.MA/8466/2014 ORDER not be influenced by the observations of preliminary nature, qua the evidence at this stage, made by this Court while enlarging the applicant on bail.
12. Rule made absolute to the aforesaid extent. Direct service is permitted.
(A.J.DESAI, J.) *Kazi...
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