Bhavnaben (Dalit) vs State of Gujarat and Another

K.S. Jhaveri, J.—Rule. The formal service of notice of Rule is waived by Ms. C.M. Shah, learned Additional Public Prosecutor for Respondent-State and Mr. M.M. Tirmizi, learned advocate, for Respondent No. 2-original accused No. 1.

By way of present application, the Applicant-original complainant has prayed for quashing and setting aside the order dated 15th February 2011 passed by the Additional Sessions Judge, Presiding Officer, 5th Fast Track Court, Gondal Camp at Jetpur, whereby the trial Court has granted regular bail to the Respondent No. 2-accused as well as directing the Investigating Agency to take the Respondent-accused in custody immediately.

The Respondent No. 2-accused along with other co-accused was arrested in connection with C.R. No. I-177 of 2010 registered with Jetpur City Police Station for the offence punishable under Sections 376(2)(g), 363, 366, 342, 506(1) and 114 of Indian Penal Code. The Respondent No. 2 is the original accused No. 1.

It is the case of the prosecution in brief that when the complainant-victim was standing near the office of Patel Travels at the Jetpur at about 01-00 a.m. on 26th December 2010 for going to her maternal uncle''s place, the Respondent No. 2 herein took her on his motorcycle under the guise of dropping her at her uncle''s place. Thereafter, the complainant was taken to Giriraj Farm House after calling another person namely Girishbhai Parosstambhai Rajyaguru and thereafter, against her wish and will, she was gang raped.

Ms. Kruti Shah, learned advocate appearing for the Applicant-complainant submitted that looking to the birth certificate of the applicant-victim which is obtained from the Ahmedabad Municipal Corporation produced on record vide Annexure-B, whereby the age of the victim is clearly shown as less than 16 years on the date of offence and that the learned Judge has failed to appreciate that the Applicant-victim belongs to scheduled caste and the accused belong to affluent class.

5.1. Ms. Kruti Shah has submitted that the trial Court has misread the evidence on record and has erred in arriving at a conclusion that the Respondent-accused is required to be granted bail. It is submitted that the case on hand clearly falls under the ambit of Section 376(2)(g) of the Indian Penal Code which calls for severe punishment and considering the same the accused ought not to have been released on bail.

5.2. Ms. Kruti Shah has drawn the attention of this Court to the medical papers and submitted that the accused have admitted in an unequivocal terms that they have committed rape on the victim. She has submitted that the trial Court has not taken note of this piece of evidence and instead on vague observations granted bail to the accused. In fact all the ingredients which constitute to the offences punishable under Sections 376(2)(g), 366, 363 and 114 of Indian Penal Code are borne out and even then the trial Court has not considered the said fact.

5.3. In support of her submissions, Ms. Shah has relied upon a decision of the Apex Court in the case of Puran v. Rambilas and Anr. with Puran Vs. Rambilas and Another etc. etc., She has submitted that as stated in the application, if the Respondent No. 2-accused is allowed to remain on bail, it would cause prejudice.

Mr. M.M. Tirmizi, learned Advocate appearing for the Respondent No. 2-original accused No. 1 has supported the order of the trial Court and contended that looking to the contents of the FIR, it appears that the FIR is vague and it cannot be said that there is a prima facie case against the Respondent-accused u/s 376(2)(g) of Indian Penal Code.

6.1 In support of his submissions, Mr. Tirmizi has relied upon the decision of the Apex Court in the case of Bhagirathsinh Judeja Vs. State of Gujarat, whereby the Apex Court has held that even where a prima facie case is established, the approach of the Court in the matter of bail is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tampering with evidence. Mr. Tirmizi has also relied upon a decision of the Apex Court in the case of Dolat Ram and Ors. v. State of Haryana, reported in 1995 SCC 237, whereby the Apex Court has held that rejection of bail in non-bailable offence and cancellation of bail already granted must be considered and dealt with on different basis. He has also relied upon the decision of this Court in the case of Parsottam Manilal Patel v. Dwarkabhai Mohanbhai Patel, reported in 1994 (1) GLH (UJ) 7, whereby this Court has held that simply because the accused are said to have committed serious offence would not be itself sufficient to cancel the bail. In view of above submissions, it is prayed that present application may be rejected.

At the outset it would be relevant to peruse Section 375 of the Indian Penal Code, which reads as under:

375: Rape: A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:

First.-Against her will.

Secondly.-Without her consent.

Thirdly.-With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

Fourthly.-With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly.-With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly.-With or without her consent, when she is under sixteen years of age. Explanation.-Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

7.1 From the overall facts and circumstances of the case, it appears that the trial Court has not given cogent and convincing reasons for enlarging the Respondent No. 2 on bail. The trial Court has simply stated that since the chargesheet was not filed at the earlier point of time and the documentary evidence in the nature of FSL report were not available at the earlier point of time, it can be said to be a change of circumstance. Apart from the same, the trial Court has not discussed any detail which has weighed with it for releasing the Respondent No. 2-original accused No. 1 on bail. Certain facts have been ignored by the trial Court while passing the impugned order. However, this Court is not entering into the details of those things otherwise the same may prejudice the case.

In the case of State of Gujarat Vs. Lalji Popat and Others, this Court has laid down the factors which are required to be taken into consideration for deciding a bail application:

[1] The nature of the charge is the vital factor and the nature of evidence is also pertinent.

[2] The punishment to which the accused may be liable if convicted.

[3] While considering the question of granting bail u/s 439(1) of the Criminal Procedure Code, the Court should take into consideration the provisions of Section 437(1) in spite of the fact that u/s 439(1) the High Court and Sessions Court have wide jurisdiction to grant bail.

[4] The nature and gravity of the circumstances in which the offences is committed, say highway robbery or decoity, gang-rape, murder or murders because of group rivalry, attack by one community on other community or such other cases.

[5] The position and the status of the accused with reference to the victim and the witnesses say in case of burning of house, wife, witnesses may be neighbours, their evidence might be tampered with by any means.

[6] The reasonable possibility of the presence of the accused not being secured at the trial.

[7] Any likelihood of tampering with the witnesses.

[8] Jeopardising his own life being faced with the grim prospect of possible conviction in the case.

[9] The prospect of victim or his relatives indulging in private retribution who feel helpless and may believe that law may not protect them.

[10] The larger interests of public, society or the State.

[11] Similar other circumstances depending on facts and peculiarity of each case.

8.1. Applying the aforesaid tests laid down by the Apex Court and looking to the facts and circumstances of the case, it can be said that the Sessions Court granted bail to the Respondent No. 2 without considering the relevant factors, more particularly the fact that Section 376(2)(g) is a very serious offence and it is a offence against the Society, which attracts a minimum punishment of 10 years and which may extend to life imprisonment. It appears that the bail was granted to the Respondent No. 2-accused in wrong exercise of discretion by the trial Court.

8.2. Moreover, the decision of the Apex Court in the case of Puran (supra) cited by the learned advocate for the applicant is squarely applicable to the facts of the present case. The Apex Court in a case where Sections 498A and 304A were disclosed observed that the High Court has noted that evidence prima facie indicated demand of dowry and considering the nature of injuries and other circumstances, the bail granted to the accused therein was cancelled by the High Court and the same was not interfered with by the Apex Court. The Apex Court in paras 9 and 12 observed that generally speaking the grounds for cancellation of bail broadly are interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. However, these instances are merely illustrative and not exhaustive. One such ground for cancellation of bail would be where ignoring material and evidence on record a perverse order granting bail is passed in a heinous crime of the nature like gang-rape and that too without giving any reasons. Such an order would be against principles of law. Interest of justice would also require that such a perverse order be set aside and bail be cancelled. It must be remembered that such offence are on the rise and have a very serious impact on the Society. Therefore, an arbitrary and wrong exercise of discretion by the trial Court has to be corrected and the bail granted to the Respondent No. 2 is required to be cancelled.[Emphasis Supplied]

So far as the decision cited by Mr. Tirmizi in the case of Bhagirathsinh Judeja (supra) is concerned, it is required to be noted that the facts of the cited case are different since the offence in the cited case is not against the Society. Here in the present case the accused are charged with the offence punishable under Sections 376(2)(g) of the Indian Penal Code. Hence, the said decision will not be helpful the Respondent-accused. So far as the decision in the case of Parsottam Manilal Patel (supra) cited by Mr. Tirmizi is concerned, again the facts of the said decision are material different and, therefore, the same will not be helpful to the Respondent-accused. The other decision cited by him in the case of Dolat Ram (Supra) will also not come to his help since in the cited decision, the applicant had approached the Court for cancellation of anticipatory bail.

In view of the aforesaid discussions, this Court is of the view that when the trial Court has ignored the material piece of evidence placed on record which prima facie establish the role of the Respondent No. 1-original accused No. 1 and whilst granting bail some reasons on merits for prima facie concluding why bail was being granted ought to have been indicated. In absence of the same, for securing the ends of justice this Court thinks it fit to interfere with the impugned order which has caused miscarriage of justice and is unjustified. Therefore, in light of the discussion hereinabove, the Court is of the opinion that the present application deserves to be allowed.

For the foregoing reasons, present application is hereby allowed. The impugned order dated 15th February 2011 passed by the Additional Sessions Judge, Presiding Officer, 5th Fast Track Court, Gondal camp at Jetpur in Criminal Miscellaneous Application No. 92 of 2011, is hereby set aside and the bail granted to the Respondent No. 2-original accused No. 1 pursuant to said order stands cancelled. The Respondent No. 2-accused No. 1 is directed to surrender to the police custody within 72 hours. The Investigating Officer shall take necessary steps in accordance with law for the arrest of the Respondent No. 2-original accused No. 1. Bail bond and surety shall stand cancelled. Rule is made absolute to the aforesaid extent.

FURTHER ORDER

After the aforesaid order was dictated, learned Counsel for the Respondent No. 2-accused No. 1, Mr. Tirmizi has requested for extending the time to surrender to enable the Respondent No. 2-accused to approach the higher forum. Request cannot be accepted in view of the fact that extending the time limit to surrender in present case shall mean re-operation of the order of the trial Court which is otherwise erroneous and palpably illegal. Hence the request is rejected.