Gujarat High Court
Ashumal @ Asharam S/O Thaumal Shindi ... vs State Of Gujarat on 5 January, 2015
Author: A.J.Desai
Bench: A.J.Desai
R/CR.MA/11220/2014 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 11220 of 2014
With
CRIMINAL MISC.APPLICATION NO. 16823 of 2014
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ASHUMAL @ ASHARAM S/O THAUMAL SHINDI (HARPALANI)....Applicant(s) Versus STATE OF GUJARAT....Respondent(s) ================================================================ Appearance:
MR YS LAKHANI, LD.SENIOR COUNSEL WITH MR CB GUPTA, ADVOCATE for the Applicant with MR SK PATEL, ADVOCATE for the Applicant. MR RC KODEKAR, APP for the Respondent.
================================================================ CORAM: HONOURABLE MR.JUSTICE A.J.DESAI Date : 05/01/2015 CAV ORDER 1 By way of filing the present application under Section439 of the Criminal Procedure Code, 1973, the applicant has prayed to release him on bail during the pendency of the trial with regard to the offence registered at CR No. I218 of 2013 with Chandkheda Police Station, DistrictAhmedabad, for the offenses punishable under Sections 376 (2)(f), 377, 354, 357, 342, 346, 506(2) and 120(B) of the Indian Penal Code.
2 The brief facts arise from the record are as under:
2.1 On 6.10.2014 one Shitalben, wife of Tushabhai Vaishya, Page 1 of 19 R/CR.MA/11220/2014 CAV ORDER lodged an FIR with Deputy Commissioner of Police, Zone No. IV, Surat, making allegations against number of accused including the present accused for the crimes committed by them punishable under the above stated provisions of the IPC. Since the offence had taken place in the area of Chandkheda (of Gandhinagar District) Police Station, the same was forwarded to the concerned Police Station and came to be registered with the said police station at CR No. I218 of 2013.
2.2 As per the case of the prosecutrix, she along with her three siblings were residing with her parents at Surat. Her father was doing labour work in diamond polishing factories. Since her childhood, she used to visit the Ashram run by the present applicant in the city of Surat along with her sisters and brother as her parents were the devotees of the applicant. They were used to visit the ashram time and again for "satsang" and "shibir" arranged by the applicant at ashram of Surat. 2.3 It is further alleged in the FIR that in the year 1996 she visited the Ashram at Surat on the festival of "Janmashtami" and when she tried to pay her respect to the applicant, who was posing himself as "mota bhagwan" and tried to touch his feet, the applicant had handed over a book in Gujarati, namely, "Maha Nari" (great woman) as well as an apple to the complainant Shitalben. At that time, two other accused, who were close disciples of the applicant, namely, `Dhel' and Page 2 of 19 R/CR.MA/11220/2014 CAV ORDER `Baglo' informed the prosecutrix that an apple is meant only for her and she has to chew it.
2.4 Thereafter again she visited the Ashram in the year 1997 on the festival of `Holy' and at that time she was asked to stay at the ashram situated in Ahmedabad, in the vicinity of Chandkheda Police Station. She stayed there for 11 days. At the end of 11 days when she asked permission to go back to her home, it was informed that she is required to stay at the Ashram and the applicant is going to make her a great orator and, therefore, she being an young girl, got impressed and believed herself a fortunate girl since she was asked to stay at the ashram since her parents were devotees of the applicant. 2.5 Since the Ashram which was run by the present applicant used to indulging in different types of activities including preparing some medicines, she was engaged such work for a period of six months. It is alleged in the FIR that whenever the applicant used to see her, he immediately recognized her and used to hand over some articles like flowers etc. 2.6 It is further alleged in the FIR that in the year 2001 the applicant and other about 10 girls were kept in a farm house, namely "Shanti Vatika" which is situated at a distance from the building of the main ashram. The prosecutrix and another girl, namely, Varsha were Page 3 of 19 R/CR.MA/11220/2014 CAV ORDER told that since they are meant to become great orators, they have to undergo certain rituals and, therefore, they again sent to Ahmedabad Ashram.
2.7 It is further alleged in the FIR that on the occasion of "Guru Poornima" in the year 2001, the daughter of the applicant, namely, Bharti, who also posed herself as "bhagwan" contacted her and informed that she had to visit `Shanti Vatika' farm house and has to meet the present applicant for certain rituals to be performed by him. At that time, another girl, namely, `Tina' was also asked to visit the farm house where the applicant was residing. Near the said `Shanti Vatika', a devotee, namely, Akhil, who is from Delhi was standing. He took Tina first to visit Vatika and the applicant was asked to remain outside near the Vatika wherein applicant used to reside. Within ten minutes, said Tina left the room where the applicant was residing and when she was going with the said Bharti, the prosecutrix was asked not to go with them but was asked to visit the applicant who was in the said Shanti Vatika.
2.8 It is alleged in the FIR that when she entered into the house, the applicant was sitting on the bed. The applicant asked the prosecutrix to massage ghee on his head. When she started massaging his head, the applicant started physically misbehaving with her. Page 4 of 19
R/CR.MA/11220/2014 CAV ORDER Therefore, she requested the applicant not to do the same, however, the applicant told that if she wants to become a great orator, she has to undergo certain rituals. She continued to resist the applicant. Pursuant to which the ghee which was kept in the vessel, fell down on the floor. The applicant lost his control and abused her in filthy language. He asked her to surrender forthwith, which she refused and, therefore, she was thrown on the bed. It is alleged in the FIR that she screamed, but where was nobody to help her. It is further alleged that initially she was compelled for oral sex and thereafter she was raped by the present applicant.
2.9 It is further alleged that she was compelled to go into bathroom for cleaning purpose and thereafter she was permitted to go out of the room. However, she was threatened that, if, whatever happened in the room is leaked, she and her family would be completely ruined. It is further alleged in the FIR that after about one month of the incident, when she tried to leave the ashram, she was caught by other devotees and taken to the wife of the applicant who slapped her and threatened her not to say anything about the incident. After the said incident, the applicant again called the prosecutrix and gave solace and asked her to prepare herself for becoming a great orator. It is alleged that she stayed in the Ashram but under strict control of the applicant and was not permitted to talk and only under surveillance of the close Page 5 of 19 R/CR.MA/11220/2014 CAV ORDER devotees of the applicant. It is further alleged that the applicant used to misbehave with her and, therefore, having fed up with the behaviour of the applicant, she left the Ashram in the year 2007 and got married in the year 2009. It is stated by the prosecutrix that since the applicant had number of disciples including high ranking politicians and government officers, she was afraid in disclosing the incident to anyone. Though, the incident had happened with her before few years, she gathered courage when she found that the present applicant had committed similar offence at his ashram situated at Jodhpur in the State of Rajasthan, for which a complaint was lodged and the applicant was arrested by the police and therefore she lodged this FIR.
2.10 Applicant having come to know about lodging of the FIR, filed two applications for anticipatory bail, which came to be rejected and applicant came to be arrested. A chargesheet has been filed after completion of investigation. The applicant did prefer an application for releasing him on bail before the learned Sessions Judge, Gandhinagar, being Criminal Misc. Application No.110 of 2014. After hearing both the sides at length, the learned Principle & District Sessions Judge, Gandhinagar, vide order dated 28.2.2014 rejected the same. Applicant approached the Hon'ble Supreme Court by way of filing a Special Leave Petition without preferring an application before this Court. Learned Counsel appearing for the applicant sought permission to withdraw the Page 6 of 19 R/CR.MA/11220/2014 CAV ORDER said Special Leave Petition reserving liberty for the applicant to approach the High Court. Permission as prayed for was granted, vide order dated 19.8.2014. Thereafter, before filing of the chargesheet, applicant had filed two bail applications before the Additional Sessions Judge, Gandhinagar, being Criminal Misc. Application No.649 of 2013, which came to be rejected on 30.20.3023 and Criminal Misc. Application No.738 of 2013, which came to be rejected on 4.12.2013. Thereafter, the present application for regular bail is filed. 2.11 Pursuant to the notice issued by this Court, an affidavitin reply has been filed on behalf of the Investigating Officer and thereafter rejoinder has been filed by the present applicant. 2.12 Mr. Y.S. Lakhani, learned Senior Counsel, assisted by Mr. S.K. Patel, learned Advocate for the applicant, would submit that the applicant came to be arrested on 14.10.2013 and since then he is behind bars. Chargesheet has already been filed by the Investigating Agency in January, 2014. He would submit that the Investigating Agency has recorded several statements of the prosecutrix. A statement under Section 164 of the Code is also recorded by the Magistrate. He would submit that there are contradictions and improvements in the statements and the story put forwarded by the prosecutrix is unbelievable. It is alleged in the FIR that the incident took place in the Page 7 of 19 R/CR.MA/11220/2014 CAV ORDER year 2001, however, she has not come forward complaining with the so called incident for about 12 to 13 years. No sufficient explanation has been put forwarded by the prosecutrix for the delay in lodging the FIR. He would submit that it is unbelievable that a lady, who is subjected to rape and other serious offenses, would stay in the ashram itself run by the applicant for about six years and had no chance to elope from the ashram or has no occasion to inform her parents about the same. He would further submit that it is an admitted position that she had not informed anything about the incident of 2001 either to her father or mother till the FIR is lodged.
2.13 He would submit that the prosecutrix had referred names of two girls, namely, Tina and Uma, however, the statement of the said two girls recorded by the Investigating Agency have not made part of the chargesheet since they have not supported the case of the prosecutrix. He would submit that said Tina who is known as wife of Jayesh Shashikant Gandhi had to file an application under Section 160(1) of the Code against the Investigating Agency alleging that she was being compelled to make allegations against the present applicant. It was alleged that the Investigating Agency was compelling her to visit the police Station at odd hours and, therefore, the learned Chief Judicial Magistrate passed an order directing the Investigating Agency not to call her at any police Station for recording her statement. He would Page 8 of 19 R/CR.MA/11220/2014 CAV ORDER submit that the Investigating Agency is bent upon to prepare a false case and, therefore, has not recorded the statements of independent persons but has recorded the statements of only those witnesses who were thrown out of the Ashram for their misdeeds when they were in the ashram itself.
2.14 It was further argued that since the applicant was apprehending some false lodgment of criminal cases, an application on behalf of the Ashram was submitted way back in the year 2009 making several allegations against several persons that they are trying to defame the applicant who is indulging in religious and other social activities. Those persons, against whom the allegations were made in the year 2009 by the applicant, are made witnesses in the present case and, therefore, the said statements are required to be discarded. 2.15 He would submit that since the applicant is respected by lakhs of persons and is providing several types of social work through the ashram, there would be some enemies. The Ashram is also running several schools and gurukuls including primary and residential schools wherein the children are camped. In one of such schools, two kids found dead. Therefore, serious allegations were made against the present applicant and, therefore, a commission was set up for inquiry in the matter, in which one Vikrant Rathod was examined, wherein he has Page 9 of 19 R/CR.MA/11220/2014 CAV ORDER categorically stated that certain persons are behind the applicant to defame him. He would, therefore, submit that there is a clear design to ruin the applicant by making such frivolous allegations. He would further submit that various statements of women who visited Ashram have been recorded wherein nothing adverse is found against the present applicant.
2.16 By referring to some incidents happened in another ashram, he would submit that prior to the present FIR, similar FIR was lodged by one Saroj, wife of one Amiraj Prajapati, (against whom specific allegations were made in the year 2009) at Revadi police station of Haryana, wherein no chargesheet has been filed against the present applicant.
2.17 He would therefore submit that except the statement of the prosecutrix there is no prima facie evidence against the present applicant and, therefore, he may be released on bail.
3 On the other hand, learned APP Mr. Kodekar, has vehemently opposed this petition and submitted that the applicant is running several ashrams in different states in India and is having numerous disciples who blindly follow the speech delivered by the applicant. He would submit that the statement of witnesses do reveal that several politicians and highly ranked government officers used to Page 10 of 19 R/CR.MA/11220/2014 CAV ORDER visit ashrams situated at different places. At Ahmedabad ashram also similar scenario was prevailing. By taking me through several statements of witnesses recorded by the investigating agency, he would submit that the inmates of the ashrams were not permitted to go out of the area without prior permission. He would submit that the applicant through his close disciples/managers has preached numerous devotees that he is a `god' and whatever he speaks is true. He would submit that his son is also involved in similar activities and is also known as god. However, since the present applicant is father, he is known as "mota bagawan" and his son is known as "bagwan". He would submit that the applicant is highly influential person and had control over their inmates or devotees either through himself or through his close disciples/managers.
3.1 He, therefore, would submit that when a girl (prosecutrix) who was admittedly 16 to 17 years old and when she first met the present applicant, she is bound to be influenced with the ora of the applicant. Her father was a labourer and was doing diamond polishing work and, therefore, a young girl would bound to be influenced if she is given some importance by a person who is having lacs of devotees. It was further argued that the submissions made on behalf of the applicant that he is in a social work like imparting education or spreading the thoughts of religion, has no bearing since Ashram is in the business of Page 11 of 19 R/CR.MA/11220/2014 CAV ORDER making so called ayurvedic medicines and by selling the same it was profiteering.
4 As far as the case put forwarded by the prosecutrix is concerned, he would submit that her several statements have been recorded by the Investigating Agency. On 9.10.2013 a statement under Section164 of the Code was recorded. He would submit that there are no material contradictions or improvements in the statements of the prosecutrix and this is not the stage to evaluate or to compare the statements of a witness. The gist of the statements are with regard to the incident which took place in Shantivan Kutia, belongs to the applicant. 5 By taking me through several statements of other witnesses, namely, Akhil Nareshchandra Gupta, who was very close to the applicant, has supported the say of the prosecutrix and has described the entire incident which had taken place in the year 2001. Another statement relied by learned APP Mr. Kodekar is of one Trupti, wife of one Rakesh Patel, who has narrated the misdeeds of the applicant, who used to call girls in his room for fulfilling his desirous. She has also narrated an incident wherein she was compelled for oral sex. Her statement under Section164 of the Code is also recorded, which supports the case of the prosecution. Similar are the statements of other witnesses who have supported the case of the prosecution. Page 12 of 19
R/CR.MA/11220/2014 CAV ORDER 6 As far as delay in lodging the complaint is concerned, he
would submit that it is an established fact that the applicant is having numerous followers and is an influential person and in such circumstances, a girl from a lower strata of society may not have gathered courage to raise her voice at that time and, therefore, delay itself would not fatal to the case of the prosecutrix. He would submit that crime never dies and, therefore, the reasons for nonfiling the FIR at that stage is required to be appreciated in the background of overall circumstances of the crime.
7 By relying on a decision of the Apex Court in the case of Udai Shankar Awasthi vs. State of Uttar Pradesh & Anr., as reported at (2013) 2 SCC 435, he would submit that lapse of time is no bar for the State for the purpose of initiating criminal proceedings against an offender.
8 By relying on another decision of the Apex Court in the case of P. Vijayan vs. State of Kerala & Anr., as reported at (2010) 2 SCC 398, he would submit that a cognizance of an offence was permitted to be taken after about 28 years of the incident and, therefore, also the delay itself is not a reason for releasing the accused who is facing serious charges of rape, etc. Page 13 of 19 R/CR.MA/11220/2014 CAV ORDER 9 Again by relying on a case of the Apex Court in the case of Kamalanantha & Ors vs. State of T.N., as reported at (2005) 5 SCC 194, he would submit that the Hon'ble Apex Court while considering the case of rape has held that if the accused had dominion or control over the victim, would not help the accused even there might be a consent by a woman. He would therefore submit that the ground taken by the applicant as far as delay is concerned would not help the applicant for getting the bail.
10 Mr. Kodekar, learned APP, while replying to the submissions made on behalf of the applicant with regard to the nonavailability of corroborative evidence, would submit that an accused can be punished solely on the statement of prosecutrix if it is found a reliable one. In support of his submission, he has relied upon a decision of the Apex Court in the case of Shri Bodhisattwa Gautam vs. Miss Subhra Chakraborty, as reported at AIR 1996 SC 922. He would, therefore, submit that the statement of the prosecutrix clearly involves the applicant in the crime who was in controlling position and, therefore, he prays that the application may be dismissed.
11 In reply to the submissions made by the learned Advocate for the applicant that the testimony of the witnesses before the Commission, which was established the principle fact that the death of Page 14 of 19 R/CR.MA/11220/2014 CAV ORDER two children, he would submit that there is no bearing of such statements in the present crime since the Commission is appointed under Section6 of the Commission of Inquiries Act.
12 He would submit that the applicant is an influential person and several witnesses were attacked by his blind disciples, for the same, offenses have been registered against them. Even one of the witnesses, who has opposed these illegal activities being carried out by the applicant, has been killed at Rajkot and for the same, an FIR for the offenses under Section 302, etc of the IPC has been lodged against the close disciples of the applicant.
13 He would further submit that two witnesses, Tina and Uma, are presently residing in the Ashram, and therefore might not have supported the prosecution, therefore, their say is not relevant. 14 I have heard learned Advocates appearing for the parties and have gone through the FIR, statement of the prosecutrix recorded under Section164 of the Code, her further statements and statements of several witnesses. I have also gone through certain documents which are produced by the applicant, trying to establish that he is carrying on such other activities which may help the society at large.
15 I have also gone through the affidavit filed by the
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respondent authorities disclosing certain facts about the activities being carried out by different ashrams run and managed by the present applicant.
16 Prima facie, what I found is that, how a downtrodden girl was initially influenced with the behaviour of the applicant who has numerous followers appearing in the public posing himself as a `god'. A teenager girl from a family of labourers is bound to be influenced if certain special treatment is given to her though unaware about the dirty intention of the so called guru. The statements of the witnesses who had actually stayed in the Ashram, reveal that the present applicant was interested in young girls to satisfy his desires. Initially he used to pamper a girl and shall provide such facilities which would not have been thought of by a girl who comes from a lower strata of society. If the FIR and statements of the prosecutrix are looked into, serious allegations have been made against the present applicant who had committed offenses punishable under Sections 376 and 377 of the IPC at a place where nobody was there to help a young girl.
17 As far as delay in lodging of the FIR is concerned, I would like to agree with the submissions made by Mr. Kodekar, learned APP, that the crime has surfaced after a long time since it had never died. The applicant has explained the delay in lodging the FIR. A detailed Page 16 of 19 R/CR.MA/11220/2014 CAV ORDER scrutiny is not required at this stage since she will be subjected to cross examination by the defence at the time of trial. She has described the entire incident in detail which is supported by witness Akhil Gupta who was present at the time of the incident. The say of the prosecutrix is also supported by another witness Trupti who was also subjected to similar type of crime committed by the present applicant. There might be delay in lodging the FIR and, therefore, there may not be any medical papers, however, the say of the prosecutrix if found to be trustworthy, an accused can be sentenced as held by the Hon'ble Apex Court in the case of (i) Shri Bodhisattwa Gautam vs. Miss Subhra Chakraborty, as reported at AIR 1996 SC 922 and (ii) State of Punjab vs. Gurmit Singh, as reported at AIR 1996 SC 1393. The family members of the applicant are also accused in this offence though might have been released on bail considering their role played in the offence but that would not help the present applicant who is the main accused in the present case.
18 It also appears that the applicant accused had dominion as well as control over the girls who were residing in the Ashram and, therefore, those girls might not have come forward about the crime at that time. When the applicant - accused had crossed all limits and tried to indulge in similar activities at Jodhpur (State of Rajasthan) and a compliant was lodged, the present applicant thought it fit and rightly Page 17 of 19 R/CR.MA/11220/2014 CAV ORDER so to lodge an FIR against the present applicant. The complainant and similarly situated girls were tempted to the assurance given by the applicant or his close disciples or managers that they should be made great orators, might have influenced the applicant to stay back at the Ashram even after the said crime. Prima facie, in my opinion, the facts of the present case and in the case of Kamalanantha & Ors vs. State of T.N. (Supra) are of similar nature and, therefore, the ratio laid down by the Apex Court in the said case would be applicable in the present case, though, the said case of Kamalanantha & Ors (supra) is decided at the end of the trial. In the present case, at this stage, the statement of the prosecutrix in which she has categorically made serious allegations against the present applicant are to be taken into consideration in background of the applicant. The statements of several witnesses in support of her say cannot be discarded at this stage though they might have left the Ashram. It is also pertinent to note that the applicant is facing similar accusation in another case registered at Jodhpur wherein High Court of Rajasthan has refused to release the applicant on bail and the application is pending for hearing before the Hon'ble Apex Court. 19 I am also of the opinion that if the applicant is released on bail, there are all chances that he may tamper with the evidence in the nature of witnesses since number of witnesses have approached the Page 18 of 19 R/CR.MA/11220/2014 CAV ORDER Trial Court with different types of allegations against the prosecution. Considering the overall facts and circumstances of the case and considering the nature of allegations, I am of the opinion that the present application is merit less and deserves to be rejected. 20 In the result, the present application is rejected. Rule discharged.
21. In view of above order passed in the main application, Misc. Criminal Application No.16823 of 2014 for releasing the applicant on temporary bail on medical ground does not survive and is disposed of accordingly. However, it would be open for the applicant to file a fresh application for temporary bail before the Trial Court with latest and necessary medical papers. Rule discharged.
(A.J.DESAI, J.) pnnair Page 19 of 19