Manishaben Dave vs Uday Bhanushanker Rawal and Another

Rajesh H. Shukla, J.—The present application has been filed by the applicant-original first informant u/s 439(2) of Criminal Procedure Code for cancellation of anticipatory bail granted to respondent No. 1 by the learned Addl. Sessions Judge, Junagadh vide judgment and order dated 31.3.2010 in Criminal Misc. Application No. 134 of 2010 in connection with the offences registered vide C.R. No. I-146/2010 with Junagadh City ''B'' Division Police Station for the alleged offences under Sections 376(2)(a)(i)(ii), 376(2)(b), 506(2), 323 of IPC.

Learned Counsel Mr. Anandjiwala appearing with learned advocate Mr. Arpit Kapadia for the applicant referred to the FIR dated 31.1.2009 and also another FIR dated 24.3.2010 in detail and submitted that the subsequent FIR was given as the previous FIR dated 31.1.2009 was not recorded properly as she had narrated. He has also referred to the other complaints addressed to the police authorities. Learned Counsel Mr. Anandjiwala also referred to the impugned order passed in Criminal Misc. Application No. 134 of 2010 filed by the respondent No. 1 for anticipatory bail before the Sessions Court, Junagadh to emphasise that the learned Sessions Judge has failed to consider the relevant criteria or the aspects which are required to be considered while entertaining the application for anticipatory bail u/s 438 of Cr.P.C.

He submitted that the impugned order at Annexure A is passed without proper appreciation of facts and application of mind. Referring to the observations at page 18 (typed page 5) he has submitted that in the affidavit filed by the I.O. below Exh. 4, which are the offences registered against the respondent No. 1 original accused is not mentioned, which is contrary to the facts. For that purpose he referred to the affidavit filed by the I.O. before the Sessions Court in the said Criminal Misc. Application No. 134 of 2010 and produced at Annexure C in the present proceedings. He emphasized with regard to the specific charges for the offences and submitted that this reflects about his appreciation and consideration of the material.

Learned Counsel Mr. Anandjiwala referring to the averments in the FIR submitted that the husband of the petitioner, first informant, is alleged to have been involved in a case regarding misappropriation which had been investigated by the respondent No. 1. Learned Counsel Mr. Anandjiwala, therefore, submitted that he abused his position as a public servant and while investigating the case respondent No. 1 had compelled the petitioner first informant to succumb to the demands and had exploited her on the promise that if she co-operates with him he would not properly investigate the case or would see to it that the husband of the petitioner who is involved in the misappropriation case gets some favour. In other words, for a favour to the husband of the petitioner regarding misappropriation case, he compelled the petitioner first informant to succumb to his pressure/demand and thereby exploited her sexually. Learned Counsel Mr. Anandjiwala submitted that the order granting anticipatory bail therefore deserves to be quashed and set aside.

Learned Counsel Mr. Anandjiwala also referred to the additional affidavit filed by the petitioner to support the submission made by him and also submitted that as she was pregnant abortion was made at the hospital of Dr. Darshanaben Pandya, a gynecologist at Rajkot. He further submitted that at that time respondent No. 1 had filled in the necessary form and completed the formalities and posed as the husband. He submitted that as the respondent No. 1 is a police officer, he is clever that he would manipulate in such a way the records and other details with regard to the places including the guest house or hotel where they had stayed and would not reveal the correct facts. He therefore strenuously submitted that it has to be examined in light of the entire material and the background in which the incident has occurred.

Learned advocate Mr. Bhargav Bhatt appearing for the respondent No. 1 referred to both the FIRs in detail and submitted that another FIR dated 24.3.2010 is stated to have been given as the earlier FIR dated 31.1.2009 is not properly recorded as narrated by her. He submitted that if the two FIRs are compared in detail, it would reveal that it is the same allegations. However, where a few statements made by her were not convenient are now sought to be omitted in the subsequent FIR. He also referred to the affidavit-in-reply filed by him and submitted that the very basis of the foundation for such FIR that she has been exploited is required to be examined in background of the fact that she had herself filed a complaint against the husband for whose sake she is alleged to have succumbed to pressure. He submitted that she had lodged a complaint for the alleged offences u/s 498-A read with Section 323 of IPC on 24.1.2009 which is immediately after two months of the marriage with the husband for whose sake she is said to have succumbed to pressure and is alleged to have been exploited. He further submitted that she was also divorced from earlier marriage and thereafter she was married to the husband against whom also she has filed the aforesaid complaint which is produced at Annexure Z3. He submitted that the husband was 25 years older than her and thereafter she has alleged that when the husband was involved in a case with regard to misappropriation which was investigated by respondent No. 1, the respondent No. 1 is alleged to have exploited her.

Learned advocate Mr. Bhatt submitted that the perusal of the FIR itself would make it clear that they had illicit relationship for which he pointedly referred to the FIR dated 31.1.2009 and referred to her own averments in the complaint particularly at pages 5, 6 and 7 that on different occasions she had accompanied and they had physical relations. She is said to have insisted that she should be accepted as wife by the respondent No. 1 and the daughter is also addressing the respondent No. 1 as ''daddy''. He emphasized and submitted that she is a teacher and if there was any kind of pressure, she would not have accompanied the respondent No. 1 on number of occasions and in the complaint itself she has stated that she insisted that she may be accepted as a wife. Learned advocate Mr. Bhatt therefore submitted that it is at the most a case of illicit relationship and not a case for the alleged offences in view of her own statements in the FIR.

Learned advocate Mr. Bhatt, therefore, again referred to the provisions of Section 376(2)(b) of IPC and submitted that it provides that "if the public servant takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him...shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine." He submitted that admittedly the petitioner first informant cannot be said to be in the custody of respondent No. 1 as she was never in the custody of respondent No. 1. It is not a case of Section 376-Rape inasmuch as she had in her FIR stated about the relationship and her accompanying voluntarily with the respondent No. 1.

Learned advocate Mr. Bhatt, therefore, emphasized that it is not a case of offence u/s 376-Rape, but at the most it is a case regarding illicit relationship which is not alleged and therefore the basic ingredients for the offence u/s 376(2)(b) are not fulfilled. He therefore referred to the impugned order passed by the learned Addl. Sessions Judge at page 18, which has been highlighted by learned Counsel Mr. Anandjiwala for the petitioner, and submitted that it has to be read in the context that the learned judge may have observed with regard to the fact and which offence is attracted is not clear. He also referred to the affidavit-in-reply and submitted that there is no whisper about what happened between the accused respondent No. 1 and the complainant. He also referred to the affidavit in reply and the annexures including Annexure Z3 which is a complaint filed by the present petitioner against the husband for the offence u/s 498-A and 323 of IPC. He also referred to Annexure Z 1 which is a fax message sent by the petitioner and pointedly referred to the same and submitted that by her own fax message and SMS she has requested the higher authorities of the respondent No. 1 to intervene and to explain to respondent No. 1 to accept her.

Learned advocate Mr. Bhatt also referred to the report made by the PSI to his higher authority DSP, Junagadh with regard to this SMS and also highlighted that when the statement was recorded it has been video graphed and such a statement was recorded in presence of women activists and she had stated that she does not want to take any steps and it has also been recorded that she does not give any complaint against respondent No. 1 and she has consciously given this statement.

Therefore, learned advocate Mr. Bhatt submitted that when the offences are prima facie not attracted and when in the given circumstances at the most it could be a matter regarding illicit relationship where the alleged offences are not attracted, the order passed by the Sessions Court cannot be said to be erroneous or perverse and therefore the order may be sustained and bail may not be cancelled.

Learned advocate Mr. Bhatt has referred to and relied upon the judgment of the Hon''ble Apex Court in the case of Fida Hussain Bohra v. State of Maharashtra reported in 2009 (3) GLR 2754 (para 8 & 11) and he has also relied upon the judgment of this Court in the case of Solanki Ravibhai Dipubhai and Others Vs. State of Gujarat and Another, and submitted that it has been observed that regardless of the facts of the case a man accused of serious offence cannot be released on anticipatory bail like in the present case.

Learned advocate Mr. Anandjiwala referred to the fax message annexed to the affidavit of the respondent No. 1 and also the report made by the PSI to the DSP, Junagadh dated 13.1.2009 placed on record with his affidavit, which has also been referred to by learned advocate Mr. Bhatt for the respondent No. 1, and submitted that it is revealed that in this investigation she is not prepared to give any statement against respondent No. 1, but he emphasized that the court may make a note about the writing said to have been accepted on the stamp paper and also the fact that she had also made an attempt to commit suicide earlier. Learned Counsel Mr. Anandjiwala submitted that the respondent No. 1 as the I.O. had objected to release of the husband of the petitioner and had also seized the house as well as the bank accounts making her miserable and that his how he exerted pressure. Learned Counsel Mr. Anandjiwala therefore submitted that it may be examined in background of the overall circumstances.

Learned APP Mr. Trivedi submitted that the respondent No. 1 is a police officer and the manner in which the anticipatory bail is granted is required to be considered. He submitted that as observed in the order, in spite of the affidavit of the I.O. filed before the Sessions Court in Criminal Misc. Application No. 134 of 2010, where there is a reference to the alleged offences, the learned Judge has stated that no offence is mentioned. He therefore submitted that it is not merely a confusion with regard to what offence would be attracted but he has deliberately avoided to mention Section 376(2)(b) which would otherwise not entitle respondent No. 1 for the anticipatory bail considering the gravity of the offence. He referred to the order and further submitted that he has failed to appreciate the facts and the circumstances. He also submitted that she has also moved higher authorities and therefore the said report made by the PSI to the DSP, Junagadh dated 13.1.2009 wherein it is recorded that she has not stated anything against respondent No. 1 and her statement is recorded in presence of women activists etc. also may not be believed. Learned APP Mr. Trivedi referred to the impugned order and referring to the conditions he tried to emphasize that while recording the conditions also the learned Judge has committed a jurisdictional error, particularly condition No. 4 of the said order, and submitted that he has directed the I.O. that he should report after the order is implemented and P.I. Junagadh ''B'' Divn. Police Station will make a note of this. Otherwise, it would be contempt. He therefore submitted that these are not the usual conditions.

Learned APP Mr. Trivedi also referred to Section 90 of IPC with regard to consent and the submissions made by learned advocate Mr. Bhatt for the respondent No. 1 that she had voluntarily accompanied the respondent No. 1 and at the most it could be a case with regard to illicit relationship but not a case for the offence u/s 376. He emphasized referring to Section 90 of IPC that if the consent is obtained under mis-conception or fraud, then it is not a pre-consent. He emphasized that the circumstances would reveal that she was under pressure and, therefore, because of fear she had to succumb and therefore her consent cannot be said to be a free consent. He also submitted that the report made by the P.I. to the DSP, Junagadh recording that she has not alleged against respondent No. 1 in the complaint and that she is not giving any statement on this aspect is not believable in light of the fact that, admittedly, there are SMSs sent by the petitioner to the higher authorities to intervene. The fax messages are there. Further, she is stated to have consumed poison for attempting suicide. He further submitted that admittedly she was pregnant because of the relationship and abortion was made at the hospital of Dr. Darshanaben Pandya, a gynecologist at Rajkot where respondent No. 1 was present and he is stated to have signed the papers as husband.

In view of rival submissions, it is required to be considered whether the present application for cancellation of anticipatory bail can be entertained or not.

As the court is not required to appreciate and scrutinize the material and evidence in detail at this stage, the relevant considerations or criteria for grant of anticipatory bail are required to be considered. As observed by the Hon''ble Apex Court in a judgment in the case of Vaman Narain Ghiya Vs. State of Rajasthan, the discretion u/s 438 is also extraordinary and therefore is required to be exercised with care and circumspection. It has been observed in this judgment, referring to the personal liberty, that a balance has to be struck between the conflicting demand/claim of an individual accused and the right of the society or the investigating agency.

Much emphasis given by learned advocate Mr. Bhatt on the aspect of the relationship highlighting that it was a voluntary relationship and at the most it could be said to be illicit relationship as the petitioner is married and the respondent No. 1 is also married, it would not attract an offence u/s 376(2)(b) of the IPC is required to be considered. Narration in the FIR read with other material including the fax message at Annexure Z1 is required to be appreciated that it is also on the same line as stated in the FIR that they had relationship and when the respondent No. 1 is said to have declined to accept her as wife the trouble had started. In the FIR itself it is stated as to the regular relationship, her pregnancy, termination of pregnancy, the daughter addressing respondent No. 1 as daddy etc. Further, it is also stated about the SMSs sent to the higher authorities and her attempting suicide. That she was in relationship with respondent No. 1 and she wanted her to be accepted by respondent No. 1 as wife and even in the fax message also when the things have not developed as expected, it has given rise to such complaint as it appears from the fax message itself when she has stated that while developing relationship respondent No. 1 had not considered about his family and now if he does not accept her (complainant) she would be nowhere. She has also stated that respondent No. 1 had promised her to marry and she had an abortion also. It is also stated that the respondent No. 1 is said to have stated that he would divorce the wife after the son is aged about 7 years.

Therefore, in background of these facts the very basis of the complaint that she was seduced because she wanted a favour for her husband who was involved in a misappropriation case which was investigated by respondent No. 1 and in the guise of favouring in that case the respondent No. 1 has exploited her, is required to be examined in light of the fact that she had also lodged a complaint against husband for an offence u/s 498-A and 323 of IPC which is produced at Annexure Z3 to the affidavit-in-reply filed by respondent No. 1 which refers to this aspect and pointedly refers to the fact that as he was the I.O. the petitioner has tried to claim a favour and when he has sealed the house, bank accounts he is sought to be falsely implicated.

Be that as it may, the moot question which is required to be considered is not with regard to the propriety of relationship which respondent No. 1 could have as a public servant with the petitioner. It may entail separate consequences including the departmental proceedings for violating the conduct rules etc. The conduct of the respondent No. 1 can never be said to be proper or justifiable. But, at the same time, the version of the petitioner that she was pressurized and succumbed to the pressure for a favour to the husband does not inspire any confidence when she had herself lodged a complaint against the husband for whom she is claiming that to save the husband she had to succumb to the pressure, which is not believable. Moreover, admittedly, she was not in the custody nor under the influence of respondent No. 1. Further, she is a teacher and is not an illiterate woman who could not understand the consequences. Further, as it transpires, admittedly, there were relationships which has not been approved by her family members also. Therefore, keeping aside the relationship or illicit relationship, as rightly emphasized, at the most it could be a case for illicit relationship but it would not fall under a case for offence u/s 376(2((b) of IPC. It is in background of these facts, the court is required to consider the aspect of excise of discretion by the sessions court u/s 438 of Cr.P.C.

Though the powers granting anticipatory u/s 438 are required to be exercised with care and circumspection and the object is not to see that the accused is armed with such a power, at the same time it has to be considered in background of the facts of each case. The Hon''ble Apex Court has also in a judgment in the case of Fida Hussain Bohra (supra) has referred to this aspect in para 8 and has observed,

The High Court in its judgment has rightly pointed out that there exists a distinction between an appeal from an order granting bail and an order of cancellation of bail. Correctness or otherwise of the orders passed by the appellate Court setting aside an order granting bail or an order of cancellation of bail, in our opinion, is required to be considered on the factual matrix involved in each case. For the purpose of grant of bail, the amount involved may be of some relevance but not the only consideration.

A useful reference can also be made to the observations made in para 5 of the judgment in the case of Solanki Ravibhai Dipubhai and Ors. (supra) wherein guiding principles have been discussed referring to the earlier judgment in the case of Shri Gurbaksh Singh Sibbia and Others Vs. State of Punjab,

Further, even if it is accepted for the sake of argument that the petitioner was pressurized, she had ample opportunity to deny any such demand and in fact she has moved the higher authorities. Therefore, there was no need for her to succumb to such pressure as sought to be contended. In any view of the matter, having regard to the fact that the respondent No. 1 accused is a police officer who was investigating a case against the husband of the petitioner and after such a lapse of time such complaint is filed, would stare in the face with regard to the bona fides of the complainant.

Therefore, without further elaboration on the merits or further material and considering the facts and circumstances, the Court is of the opinion that the present application deserves to be rejected and accordingly stands rejected. Rule is discharged.