Bombay High Court
Santosh Bhaurao Raut vs State Of Maharashtra on 26 July, 1988
Equivalent citations: 1989(1)BOMCR119, 1989MHLJ162
ORDER
1. Applicant seeking bail after having been unsuccessful before the Sessions Court at Thane has come to this Court invoking Sections 439 and/or 482 of the Crl.P.C. 1973.
2. The application gives rise to questions which have to be considered in the following background :
A Temple and Shrine at Vajreshwari in the District of Thane attracts a number of pilgrims. Two such pilgrims headed for Vajreshwari were (A) and her husband (B). They came to the Vasai Railway Station on June 25, 1988 at about 10-45 p.m. From the Railway Station the couple went to the Navghar Bus Station. This was with a view to get a bus for Vajreshwari. While the couple were standing at the bus stand a person unknown to them approached and gave out that they were wanted by his D.S.P. who it was said was in an auto-rickshaw parked some distance away. The person's speech and manner gave the impression of his being from the Police department. (A) and (B) went with the messenger to the auto-rickshaw. Inside the rickshaw were three persons who accused Mallayya of moving about with a female not his wife and his wanting to have a good time with the said person. The accusation rendered the couple speechless and they could only protest their innocence. The occupants of the rickshaw including the driver professed scepticism and asked the couple to get into the rickshaw saying that it was necessary to take them to the Police Station. The frightened (B) and (A) got into the vehicle which started and went ahead. Seeing that the vehicle was not going in the expected direction the couple protested only to be abused and assaulted. (B) was forced out of the rickshaw and the vehicle went ahead to a site near a brick kiln where it was halted. Here, (A) was forced to get out of the rickshaw and submit herself to sexual intercourse. Her protests were disregarded and her clothes forcibly removed from her person. Thereafter the quartet ravished the girl, each miscreant enjoying her person twice. After the miscreants had satisfied their lust they made (A) dress up and the rickshaw was headed in the direction from where it had originally come. In the meantime (A) had contacted the Police and they intercepted the rickshaw on its way back. Unfortunately, one of the culprits whose name was Imtiaz decamped and disappeared in the darkens. The remaining three, viz, the applicant, the rickshaw driver Munaf and Bharat were arrested. They, together with (B) and her husband, were taken to Police Station and here (B's) statement was reduced into writing Investigation began and the Applicant moved the Sessions Court at Thane for bail. The 3rd Additional Sessions Judge who heard the bail application rejected the same. That rejection has led him to approach this Court.
3. Counsel for the Applicant submits that the Sessions Court was in error in holding that the Applicant was disentitled to bail merely because one of the punishments prescribed for the offence of rape, is life imprisonment. It is argued that though the Applicant is accused of gang rape, the punishment prescribed is 10 years R.I. though it is possible that in a given case the offender may be sentenced to life imprisonment. However, for the purposes of entitlement to bail it is not the maximum punishment that is relevant. The offender who is accused of a non-bailable offence is not deprived of the entitlement to bail merely because the offence is punishable with life imprisonment. Such a disability is occasioned where the offence allegedly committed by the offender is punishable only with death or imprisonment for life. To put it differently, S. 437(1)(i) of the Cr.P.C. cannot be applied to the case of a person who can be punished with a sentence of imprisonment less than imprisonment for life. The Indian Penal Code prescribes a minimum sentence of 10 years R.I. for one accused of the offence of gang rape. This is the punishment to be taken into consideration for the purposes of deciding on the applicability or otherwise of S. 437(1)(i) of the Cr.P.C. In other words it is not the maximum sentence imposable for gang rape which determines the applicability or otherwise of S. 437(1)(i). It is not possible to agree with this submission. Section 437(1)(i) says that a person accused of or suspected of the commission of an offence punishable with death or imprisonment for life, shall not be released on bail if there appears reasonable ground for believing that he has committed such an offence. Therefore, even if the law prescribes death or imprisonment for life as the maximum imposable sentence. S. 437(1)(i) is attracted and the offender deprived of the right to get bail. This of course is on it being made to appear that there are reasonable grounds for believing that he has committed an offence for which the prescribed punishment is, death or imprisonment for life.
4. Turning now to the merits viz, the eligibility of the Applicant to get bail under S. 439 or 482 of the Cr.P.C., Counsel refers to the unblemished past of the Applicant, his readiness to face a trial, and the fact of his being an Architect. This however is one aspect of the mater; the other, being the heinousness of the crime and this having a bearing on the ensuring of the presence of the Applicant at the trial and at the same time seeing to it that the prosecution witnesses are free from the fear of being tampered with. The very manner in which the crime was committed gives the creeps to the listener. An innocent couple on its way to a pilgrimage is abducted by a gang of toughs by a mixture of bluff and bravado and the couple is forced to accompany the toughs. On the way the husband is flung into the dark and the wife taken away to a secluded area. Here, her protests not withstanding she is subjected to the lusts of four males who are little better than beasts. But for the providential arrival of the Police the culprits would have escaped scot-free. The wonder is that anyone from the despicable quartet should have the temerity to apply for bail, invoking this Court's jurisdiction under sections 439 and 482 of the Cr.P.C. The Applicant and the companions have behaved worse than animals and the manner in which the crime was committed debars them from any sort of indulgence. This is because it is evident that they will stop at nothing once released on bail from either absconding or intimidating the witnesses. The Applicant's being an Architect and coming from a respectable family does not in any way diminish the possibility of his trying his best to queer the pitch once set at liberty. No conditions can deter a person who has participated in the gruesome and brazen crime ascribed to the Applicant and his companions. The application fails and is hereby rejected.
5. Application dismissed.