Gujarat High Court
Ranchhodbhai Zaverbhai Kakdiya vs State Of Gujarat on 22 December, 2023
NEUTRAL CITATION
R/CR.MA/18484/2023 ORDER DATED: 22/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 18484 of 2023
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RANCHHODBHAI ZAVERBHAI KAKDIYA
Versus
STATE OF GUJARAT
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Appearance:
MR. JAL S. UNWALA, SENIOR ADVOCATE with MR ABHISHEK M
MEHTA(3469) for the Applicant(s) No. 1
PARAM V SHAH(9473) for the Applicant(s) No. 1
MR SIKANDER SAIYED(3458) for the Respondent(s) No. 1
MR. L.B.DABHI, APP the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE M. R. MENGDEY
Date : 22/12/2023
ORAL ORDER
1. By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant-accused has prayed for enlarging the Applicant on anticipatory bail in connection with the FIR being C.R. No. 11191013230772/2023 registered wit h Krishnanagar Police Station, Ahmedabad City for the offenses punishable under Sections 377, 323, 506(2) of the Indian Penal Code, Section 135(1) of the Gujarat Police Act and Sections 4 and 6 of the Protection of Children from Sexual Offences Act.
2. Heard learned Senior Advocate Mr. Jal S. Unwala appearing with learned Advocate Mr. Abhishek M. Mehta for the Applicant, learned Advocate Mr. Sikander Saiyed appearing on behalf of the first informant and learned APP Mr. L.B.Dabhi for the Respondent State.
3. Learned Senior Advocate Mr. Jal S. Unwala has submitted that the Applicant has been falsely implicated in connection with the offence in question.
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He submitted that, actually, the present Applicant and the first informant were the partners and some dispute arose between the two because of some business transactions which has resulted into the lodging of an FIR. Learned Senior Advocate Mr. Unwala has further submitted that after the FIR was lodged, the Applicant had employed one of his friends to record the conversation between him and the first informant clandestinely to bring the actual truth on record. The friend of the present Applicant had accordingly recorded the conversation which had taken place between him and the first informant wherein the first informant is heard to be saying that he may settle the matter if he would paid Rs.7 Crores. Thus the present FIR has been lodged only with an intention to get the money from the present Applicant through illegal means. Further, learned Senior Advocate Mr. Jal S. Unwala has submitted that the present Applicant had provided the transcript of the said conversation to the Investigation Officer and the Investigation Officer had in turn asked the first informant to provide his voice sample for Voice Spectrography Test. However, the first informant had shown his unwillingness for providing such samples on the basis of which an adverse inference should be drawn against the first informant. Learned Senior Advocate Mr. Jal S. Unwala has submitted that the alleged incident has taken place on 30.5.2023 whereas the FIR came to be lodged on 6.9.2023 and the delay caused in lodging the FIR is not explained in the FIR. He therefore submitted to allow the present Application subject to some suitable conditions.
4. Learned Advocate Mr. Sikander Saiyed appearing on behalf of the first informant has also opposed the present Application inter alia contending that the present Applicant had tried to physically abuse the son of the first informant. However, so far as the aspect of delay in lodging the FIR is concerned, since, after the incident, the son of the first informant was in trauma, he did not reveal the facts of the incident to his family members. It was only after great persuasion of his family members he had revealed the facts of the incident to his family members and thereafter the FIR has been lodged. He Page 2 of 5 Downloaded on : Tue Dec 26 20:36:46 IST 2023 NEUTRAL CITATION R/CR.MA/18484/2023 ORDER DATED: 22/12/2023 undefined further submitted that so far as the aspect of giving samples for Voice Spectrography Test is concerned, as per the law laid down by the Hon'ble Apex Court, nobody can be compelled to give evidence against his own self. Moreover, the summons issued by the concerned Investigation Officer to the first informant asking him to give samples which was challenged before this Court by filing Special Criminal Application No. 13323 of 2023. In the said Application, it was declared before the Court that the concerned Investigation Officer has withdrawn his Application for Brain Mapping and Lie Detector Test of the first informant. Therefore, the said Application came to be withdrawn. He also submitted that the Application was withdrawn by the Investigation Officer since strict view was taken by this Court that simply because some conversation which had allegedly taken place between the first informant and the friend of the present Applicant, the entire case of the prosecution should not be thrown out of the window. He therefore submitted to dismiss the present Application.
5. The Application is opposed by learned APP appearing on behalf of the Respondent State. He submitted that the son of the first informant is suffering from some ailment relating to Hormons and because of the same his growth as a male child has been abnormal. The present Applicant had taken disadvantage of the loneliness of the son of the first informant and had made an attempt to physically abuse him. He further submitted that the statement of the son of the first informant was recorded under the provisions of Section 164 of the Code of Criminal Procedure ("Cr. P.C.") wherein also he has clearly implicated the present Applicant. He therefore submitted to dismiss the present Application.
6. Heard learned Advocates for the parties and perused the record. The present FIR has been lodged by the first informant who happens to be the father of the victim on 6.9.2023. As per the FIR, on 30.5.2023, the first informant and his son, who is the victim had gone to Ahmedabad for treatment of his son, who Page 3 of 5 Downloaded on : Tue Dec 26 20:36:46 IST 2023 NEUTRAL CITATION R/CR.MA/18484/2023 ORDER DATED: 22/12/2023 undefined was aged about 12 Years and 8 Months at the time of incident and had visited the place of the present Applicant. As stated in the FIR, since the son of the first informant is suffering from some hormonal disorder, though being male, his body is taking shape like a body of female and, for the very said disorder, the son of the first informant was under treatment at Ahmedabad for which they had visited the house of the present Applicant. The present Applicant happened to be the partner of the first informant and there were family relations between the two also. The son of the first informant was thereafter taken by the present Applicant to some other room in his own house, where, as alleged in the FIR, the present Applicant had taken disadvantage of the loneliness of the son of the first informant and had physically abused him. Thereafter, while going to the Doctor, in the car, the first victim started crying and told that he did not want to visit the Doctor. Thereafter the son of the first informant was sitting quite and was not talking to anybody. It was after great persuasion that the son of the first informant had informed his family members about the incident which had taken place on 30.5.2023 and thereafter the FIR has been lodged.
7. So far as the aspect of delay caused in lodging the FIR is concerned, an explanation is sought to be given to the effect that; after the incident, the son of the first informant was in trauma and had gone quite and was not taking to anybody. It was only after persuasion of the family members he had opened up and had informed the family members about the alleged incident, and therefore, the FIR was lodged after a period of almost four months. The explanation sought to be given, appears to be germane at this stage having regard to the nature of offence and the incident which had taken place with the son of the first informant who was aged merely 12 Years and 8 Months at the time of incident.
8. It is sought to be contended on behalf of the Applicant that some conversation between the first informant and the friend of the present Applicant was recorded, the transcript of the said conversation is also produced on record.
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As per the said transcript, the first informant had demanded a huge amount of Rs. 7 Crores from the present Applicant for settling the dispute. At the cost of repetition it is required to be noted that the present Applicant and the first informant were partners in business and some dispute arose from the said business transactions between the two. The statement of the son of the first informant recorded under Section 164 of Cr. P.C. is also perused by this Court. In the said statement, the victim has clearly stated as to what had happened with him on 30.5.2023 which resembles with what is stated in the FIR itself. There is no reason for this Court to disbelieve the statement of the victim which was recorded under Section 164 of Cr. P.C.
9. In the facts and circumstances as stated herein above, this Court is not inclined to exercise discretion in favour of the Application. The Application is devoid of any merit and hence the same is hereby dismissed. Notice is discharged.
(M. R. MENGDEY,J) J.N.W Page 5 of 5 Downloaded on : Tue Dec 26 20:36:46 IST 2023