Gujarat High Court
Anantrai Jentilal Bhatt vs State Of Gujarat on 20 June, 2017
Author: A.Y. Kogje
Bench: A.Y. Kogje
R/CR.MA/9085/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL ) NO. 9085 of
2017
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ANANTRAI JENTILAL BHATT....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR ND NANAVATY, SR. ADVOCATE for MR P B KHANDHERIA, ADVOCATE
for the Applicant(s) No. 1
MS CM SHAH, APP for the Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 1
MR ALOK THAKKAR for SAN ASSOCIATES LLP, ADVOCATE for the
Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 20/06/2017
ORAL ORDER
1. This is an application under Section 438 of the Code of Criminal Procedure, 1973 for anticipatory bail in the event of applicant's arrest in connection with FIR registered at C.R. No.I-67 of 2017 before Mahila Police Station, District Rajkot for the offence punishable under Sections 376 & 506(2) of the Indian Penal Code.
2. The learned advocate appearing on behalf of the applicant would submit that considering the nature of offence, Page 1 of 16 HC-NIC Page 1 of 16 Created On Tue Aug 15 20:30:45 IST 2017 R/CR.MA/9085/2017 ORDER the applicant may be enlarged on anticipatory bail by imposing suitable conditions.
3. Learned senior advocate Shri Nanavati submits that the applicant is aged 75 years and is having a good reputation in society and therefore the present FIR appears to be an attempt to malign his image in society and to extort money from the applicant. He submits that the complainant herself is aged around 35 years, has been married earlier and is very much conscious of her wellbeing. That being so, the incident, if any, as alleged in the FIR is nothing but consensual encounters which cannot be dragged in the definition of Section 375 of IPC.
4. He submits that the delay which is evident from the allegations made in the FIR, it reflects after passage of period of almost 9 years, when the complainant has thought it fit to register an FIR. However considering the allegations, the applicant has still cooperated fully with the investigation. He submits that his statements are already recorded, he has been medically examined and in the course of investigation, he was taken to all the places where the alleged incidents have taken place. He therefore, submits that even from the allegations in the FIR, no ingredients of section 375 are attracted and now as Page 2 of 16 HC-NIC Page 2 of 16 Created On Tue Aug 15 20:30:45 IST 2017 R/CR.MA/9085/2017 ORDER the applicant has joined the investigation, his application needs to be considered.
5. He also draws attention of this Court to the transcript of conversation recorded between the complainant and the applicant. Though it is not necessary to threadbare go into all contents of such transcript, still according to learned senior advocate, the contents reflect that the language cannot be of a person who can be easily influenced or can be cowed down. He submits that his delicate situation is being taken advantage of. The contents of the recordings of the conversation are examined and verified by the report of the FSL which opines that the voice recorded is that of the complainant and that of the applicant.
6. Learned senior advocate draws attention of this Court to notice issued by the advocate on behalf of the complainant purportedly addressed to the media which amounts to interfering with the Court's proceedings. On the basis of this news article which appeared in the newspaper, the perusal of which would indicate that attempt is made to interfere with the ongoing proceedings at the behest of the learned advocate for the complainant. He therefore submits that with this background the motive behind this complaint and conduct is to Page 3 of 16 HC-NIC Page 3 of 16 Created On Tue Aug 15 20:30:45 IST 2017 R/CR.MA/9085/2017 ORDER go to any extent to get the desired result from this episode.
7. As against this, learned advocate for the complainant took this Court through the allegations made in the FIR and submitted that the FIR does indicate that by threatening the complainant with danger to her son, the offence was initiated and therefore the ingredients of section 375 of IPC are clearly attracted. He submits that the situation in which she was put on account of two previous divorce cases, such situation was taken advantage of and therefore, the encounters cannot be considered as consensual. He submits that considering the difference of age between the complainant and the applicant would belie any presumption of consent on the part of the complainant. He submits that in the situation which the complainant faced there was no question of consent. He also referred to the transcript of recorded conversation and especially drew the attention of this Court to the conversation recorded in the name of Bharatbhai and Riteshbhai to indicate that the applicant has since inception sought to influence the investigation.
8. Learned advocate for the complainant has relied upon judgment reported in the case of Ashumal @ Asharam S/o Page 4 of 16 HC-NIC Page 4 of 16 Created On Tue Aug 15 20:30:45 IST 2017 R/CR.MA/9085/2017 ORDER Thaumal Shindi v. State of Gujarat 2015 LawSuit(Guj)1. In this judgment where the Court was called upon to consider a bail of a Godman who was faced with the offence where the prosecutrix was young girl aged 16 years and considering the facts, the High Court has recorded on page 7 para 3.1 as under:
"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 making so called ayurvedic medicines and by selling the same it was profiteering."
The findings on the facts are recorded in para 16 which are as under:
"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 Page 5 of 16 HC-NIC Page 5 of 16 Created On Tue Aug 15 20:30:45 IST 2017 R/CR.MA/9085/2017 ORDER 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 has committed offenses punishable under Sections 376 and 377 of the IPC at a place where nobody was there to help a young girl."
8.1 The facts in the case of Ashumal @ Asharam S/o Thaumal Shindi (supra) are gross and cannot be equated to the facts in the present case.
9. The judgment relied upon by the learned advocate for the complainant in case of Jayesh Khemchandbhai Patel v. State of Gujarat reported in 2017 LawSuit (Guj) 266 substantially has claimed that where the applicant is an influential person in such cases, bail ought not to be granted.
10. In this case, the accused was facing accusation of an Page 6 of 16 HC-NIC Page 6 of 16 Created On Tue Aug 15 20:30:45 IST 2017 R/CR.MA/9085/2017 ORDER offence punishable u/s. 376(2)(f), 323, 506 and 114 of the IPC where applicant was Managing Trustee and the Founder as well as the President of University and the alleged complainant was student of the same university. This Court while appreciating the merits of the case has recorded as under:
"The incident, as per the allegations, has taken place on 16.06.2016 night, prior to which she was called by the present applicant through his mobile phone at around 5.00 p.m. And she was called at his residence after 8.00 p.m. The phone call record does primafacie establishes that from the mobile of the applicant, he had called the prosecutrix, who is student of second year of nursing course. The applicant is residing alone in the staff quarter situated within the University campus, near Vaghodiya village. The prosecutrix is also residing in hostel with other girls.
It is possible that the prosecutrix might not have attended all classes and therefore, having some hopes for regularization of her absence, she visited the applicant along with the rector on 15.06.2016 i.e. prior to the date of incident. On 15.06.2016, thee prosecutrix was scolded by the present applicant, however, she was permitted to go to her hostel. On 16.06.2016, an amount of Rs.
57,000/- was paid through one Ashoksinh Narvatsinh Rathod, driver of the applicant towards the fees of Page 7 of 16 HC-NIC Page 7 of 16 Created On Tue Aug 15 20:30:45 IST 2017 R/CR.MA/9085/2017 ORDER the prosecutrix. He was given a chit wherein name of the prosecutrix was mentioned was referred and cash of Rs. 57,000/- was handed over by him to the head of the account department. The said statement is supported by the head of the account department, who is also a lady. This conduct of the applicant i.e. paying an amount of Rs.57,000/- towards the fees of a girl is, in my opinion, not a normal behaviour of a Managing Trustee because in the evening, he himself had called the prosecutrix from his mobile and asked her to remain present at his residence in the night hours."
"As far as the judgement relied upon by the learned advocate appearing for the applicant is concerned, I am not in agreement with the submissions made by the learned advocate appearing for the applicant so far as the judgements cited by him laying down any ratio for granting bail in the matter like this. However, considering the dominion or control of the applicant over the prosecutrix, who is a college student, place of incident, medical evidence as well as attempt to get the affidavits prepared of the other girls in support of him and the severity of the punishment for the offence punishable under Section 376(2)(f), I am of the opinion that the present applicant is not entitled for the relief as prayed for. Hence, the present application is rejected. Rule is discharged."
10.1 The aforesaid judgment is in the gross facts of the Page 8 of 16 HC-NIC Page 8 of 16 Created On Tue Aug 15 20:30:45 IST 2017 R/CR.MA/9085/2017 ORDER case where the Director / owner of the Educational Institution forces the young female students to enter into sexual relationship with accused. However, nothing is shown on record about any incident where the applicant has influenced or interfered with the investigation.
11. As against this, learned APP submits that the allegations made in the FIR are serious. The allegations do attract the ingredients of section 375 of IPC. It is submitted that the position in which the complainant was at the relevant point of time was taken advantage of by the applicant and hence discretion cannot be exercised in his favour. He also tenders a report from the FSL in connection with the recording of conversation produced by the applicant. She submits that the analysis of the voice was carried out by the FSL under the direction issued by this Court in Criminal Misc. Application No. 8510 of 2017 vide order dated 3.04.2017.
12. Having considered the rival submissions and going through the record of the case, this Court is of the view that the transcript of the conversation which now forms part of the investigation on the ground of the same being carried out under the reasoned order of this Court passed in Criminal Misc.
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Application No. 8510 of 2017 where in para 3, the Court has observed as under:-
"Mr. Marshall, the learned senior counsel appearing for the applicant vehemently submitted that the First Information Report lodged by the first informant is palpably false.
According to the learned senior counsel, the same has been filed with an oblique motive i.e. for the purpose of extorting money. It is submitted that on the own showing of the first informant, she knows the applicant herein past almost a period of eight years. Mr. Marshall, in the course of his submissions, produced a written transcript of the telephonic conversation between the applicant and the victim. According to the learned senior counsel, the plain reading of the transcript goes to show that the case put up by the applicant is false. It also appears from the contents of the F.I.R. that the victim is talking about one more C.D., which contains a video. If I go by what has been stated in the First Information Report, then the victim should be in possession of the pictorial C.D. So far as the telephonic conversation is concerned, the C.D. is in possession of the applicant herein. If I accept or believe as true what has been stated in the transcript i.e. the telephonic conversation between the applicant and the victim, then the submission of the learned senior counsel appearing on behalf of the applicant gets fortified. However, it is too early for this Court to comment anything on the transcript since the Page 10 of 16 HC-NIC Page 10 of 16 Created On Tue Aug 15 20:30:45 IST 2017 R/CR.MA/9085/2017 ORDER investigation is in progress. When the applicant very boldly and vociferously claims to be in a relationship with the victim over a period of time, then the Investigating Officer is obliged to collect the C.D. at the earliest so that the genuineness of the same can be ascertained through the Forensic Science Laboratory. The voice samples of the applicant herein as well as the victim can be collected and both can be subjected to a Voice Spectrography Test. So far as the C.D., which is in possession of the victim is concerned, the same should also be collected by the Investigating Officer at the earliest. The submissions canvassed by the learned senior counsel appearing on behalf of the applicant and the materials on record, do cast a prima facie doubt on the genuineness ofthe allegations, but I am of the view that the investigation should not be hampered and it should proceed in accordance with law."
13. The investigation thereafter has proceeded and voice spectrography of the applicant as well as the complainant is carried out and the outcome of the same is available with the investigation in the form of opinion of FSL which confirms the conversation to be of the complainant and the applicant, more particularly, when the scientific analysis and examination of recorded conversation is carried out as per the directions of this Court in a separate proceedings referred herein above Page 11 of 16 HC-NIC Page 11 of 16 Created On Tue Aug 15 20:30:45 IST 2017 R/CR.MA/9085/2017 ORDER then the contents of such conversation cannot be discarded. Though discussion of such conversation is not required to be undertaken threadbare yet what comes out on record would indicate that there appears to be demand on behalf of the complainant in connection with the episode. This is a relevant and important aspect for the Court to consider. Over and above this, when the statement of Bharatbhai whose conversation is also recorded is perused, this statement of Bharatbhai also reflects that a written complaint given by the complainant at that stage also, said Bharatbhai was called upon by the learned advocate for the complainant to act as a intermediary for drawing the financial benefit.
14. Therefore considering the age of the applicant and considering the fact that the applicant has now joined the investigation which includes medical examination, recording of statement, travelling to the places where alleged incident have taken place and recording of voice spectrography, discretion is to be exercised in favour of the applicant.
15. The Court has gone through the evidence collected during the course of investigation, however, considering the stage of the investigation refrains from referring to the same in Page 12 of 16 HC-NIC Page 12 of 16 Created On Tue Aug 15 20:30:45 IST 2017 R/CR.MA/9085/2017 ORDER detail.
16. Learned Advocate for the applicant on instructions states that the applicant is ready and willing to abide by all the conditions, including impositions of conditions with regard to the powers of Investigating Agency to file an application before the competent court for his remand. He would further submit that upon filing of such application by the Investigating Agency, the right of applicant-accused to oppose such application on merits may be kept open.
17. I have heard the learned Advocates appearing for the respective parties and perused the investigation papers and have also taken into consideration the facts of the case, nature of allegations, role attributed to the applicant- accused and without discussing the evidence in detail, at this stage, I am inclined to grant anticipatory bail to the applicant. This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and Ors. as reported at [2011] 1 SCC 6941, wherein the Hon'ble Apex Court reiterated the law laid down by the Constitutional Bench in the case of Shri Gurubaksh Singh Sibbia & Ors., as reported at (1980) 2 Page 13 of 16 HC-NIC Page 13 of 16 Created On Tue Aug 15 20:30:45 IST 2017 R/CR.MA/9085/2017 ORDER SCC 665.
18. In the result, the present application is allowed by directing that in the event of arrest of the applicant herein in connection with FIR registered at C.R. No.I-67of 2017 before Mahila Police Station, Rajkot, the applicant shall be released on bail on his furnishing a personal bond of Rs.10,000/- (Rupees ten thousands only) with one surety of the like amount on the following conditions that he shall:
(a) cooperate with the investigation and make himself available for interrogation whenever required;
(b) remain present at the concerned Police Station on 28.06.2017 between 11.00 a.m. and 2.00 p.m.;
(c) not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade him/them from disclosing such facts to the court or to any police officer;
(d) not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police;
(e) at the time of execution of bond, furnish the address to the investigating officer and the court concerned and shall not change his residence till the final disposal of the case till further orders;
(f) not to enter the revenue limits of Rajkot except for marking presence and attending the Court proceeding till the filing of charge-sheet.Page 14 of 16
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(g) not leave India without the permission of the Court and if having passport, shall deposit the same before the Trial Court within a week; and
(h) it would be open to the Investigating Officer to file an application for remand if he considers it proper and just and the learned Magistrate would decide the same on merits;
(i) To mark presence with concerned police station on every Friday of the first week of every month.
19. Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate, for Police remand of the applicant. The applicant shall remain present before the learned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the learned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining application of the prosecution for police remand. This is, however, without prejudice to the right of the accused to seek stay against an order of remand, if, ultimately, granted, and the power of the learned Magistrate to consider such a request in accordance with law. It is clarified that the applicant, even if, remanded to the Police custody, upon completion of such period of Police remand, shall be set free immediately, subject to other conditions of this anticipatory bail order.
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20. At the trial, the Trial Court shall not be influenced by the prima-facie observations made by this Court while enlarging the applicant on bail. Rule is made absolute.
Direct service is permitted.
(A.Y. KOGJE, J.) MAYA Page 16 of 16 HC-NIC Page 16 of 16 Created On Tue Aug 15 20:30:45 IST 2017