Ronak Prakashbhai Gohel vs State Of Gujarat

Ilesh J. Vora, J

By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant - accused has prayed for anticipatory

bail in connection with the FIR being C.R. No. 11191030210071 of 2021 registered with Mahila Police Station (West) Dist.: Ahmedabad, for the

offences punishable under Sections 376, 376(2)(H), 377, 406, 506(2), 312 and 114 of IPC.

Brief facts giving rise to present application are that, the applicant and victim met first time in June, 2018, through common friend at Ahmedabad.

They exchanged their cell numbers. It was proposed by the applicant herein to the victim to give post in the political party and handsome salary. Based

on the proposal, victim used to attend the office of the applicant herein. It is alleged that the applicant herein though married person, introduced himself

as unmarried. Victim was given a post of President, Women Wings of Ahmedabad of political party as referred in the FIR. The victim was taken to

Surat on 08.06.2018 by the applicant and while they were traveling in a sleeper coach, the applicant promised her to marry, as a result of which, they

indulged in sexual act. It is alleged that on 16.07.2018, when victim was at the office of the applicant, they again indulged in the sexual acts and

applicant herein clicked her personal photographs. It is further alleged that on 26.09.2018, at the event of inauguration of the office at Ahmedabad, she

came to known that the applicant is married person, however, the applicant herein win over the trust of the victim saying that he will give divorce to

his wife and then, he would marry her. Based on the promise during the period from 29.06.2018 to 03.11.2018, she was taken to different hotels at

Ahmedabad, where they were indulged in the physical relationship. The victim got pregnant. On 06.07.2019, the applicant and his friend, co-accused,

forced her to abort the child, otherwise, they will circulate her personal photographs on social media and accordingly, at the private clinic, abortion was

being carried out. On 11.07.2019, the victim and applicant and other friends with family went to Saputara Hill Station, where, she was forced to

indulged in physical relationship and thereafter, on 23.02.2020, when she was taken to Mumbai. On 23.02.2020, she came to know that she having got

pregnancy and again, the applicant and his accomplice forced her to abort the child. The applicant herein assured the victim that after the election of

2022, he would marry with her. Parties have opened their bank account jointly. It is alleged that on 05.06.2021, the victim was called at the office of

the applicant herein where she was humiliated by the applicant and his friends and suffered injuries due to altercations took place at the office. The

victim lodged an FIR under Section 354(a), 323, 294(b), 506(2), 114 of IPC with Sola High Court Police Station. Thereafter they were separated and

on 03.09.2021, the applicant herein deposited Rs.50,000/- in her account.

In the aforesaid facts, the victim aged about 31 years old, lodged an FIR alleging that, on the false promise of marriage and by intimidation, coercion,

she was deceived by the applicant, as a result, she indulged in the physical relationship with the applicant accused and thus, FIR is being registered to

the offences of rape, unnatural sex, criminal intimidation and breach of trust.

This Court has heard learned Senior Counsel Mr. N.D. Nanavati assisted by Mr. A.V. Vyas, learned advocate for the applicant, Mr. N. T. Gandhi,

learned advocate for original information and Mr. Manan Mehta, learned APP for the respondent State.

Learned Senior counsel Mr. N.D. Nanavati, submitted that the allegations made in the FIR are false, frivolous and with malafide intention, the FIR

is being lodge by the victim; referring to the content of the FIR, he submitted that, the alleged incident took place in the month of June, 2018, whereas,

the FIR came to be registered on 22.12.2021 i.e after about two and half years, for which, no any reasonable explanation being offered by the victim;

that on 29.06.2018, the victim was came to know that the applicant herein is married person, thereafter also, she was remained in the company of the

applicant herein; that on 05.06.2021, when she went to the police station for lodging an FIR, under Section 354(a), 323, etc. of IPC against the

applicant, she did not disclose the alleged offence of rape etc, which conduct shows that the allegations are false and frivolous having been alleged

with oblique motive; that on 03.09.2021, she received an amount of Rs.50,000/- from the applicant, which itself shows that, the victim having mind set

to extort money from the applicant, for which, the applicant herein filed a complaint before the police; that the applicant herein cooperated in the

investigation and his mobile phone and its data have been seized and recovered by the police; that applicant is heading a post in the political party and

therefore, to humiliate and damage his reputation, the FIR is being lodged.

In the aforesaid, facts and contentions raised herein, the learned Senior counsel Mr. Nanavati, submitted that the case is made out for anticipatory

bail and thus, application may be allowed by imposing appropriate bail conditions.

Mr. N.T. Gandhi, learned counsel for the complainant victim, reiterating the contents of the affidavit filed by the victim, contended that the applicant

herein being a married person, gave false promise of marriage, obtained the consent and indulged in the sexual acts with the victim and thereafter,

gave her threats to circulate her private photographs, compelled her to maintain physical relationship on various occasions. He further submitted that,

when the victim got pregnancy, the applicant and co-accused forced her to abort the child. He further submitted that the applicant herein being a head

of political out fit, he is head strong person and has misused the bank account of the victim for doing his business of converting black money into

official transactions for which, inquiry is pending with police authorities and therefore, it is not a case to grant anticipatory bail. He would submit that

the offence alleged is grave, for which, punishment is life imprisonment and considering the background facts of the accused, there are chances of

tempering with the evidence and threat to the witnesses as well as to the victim. He also point out that investigation is at the crucial stage and for

effective investigation, his custodial interrogation is also necessary.

In the aforesaid facts and contentions, the learned counsel Mr. Gandhi submitted that no case is made out for exercising powers by this Court under

Section 438 of the Cr.P.C. and therefore, application may not be entertained.

Learned APP Mr. Manan Mehta for the respondent State has opposed the petition, contending that considering the gravity of the offence and role

attributable to present applicant, his custodial interrogation is necessary for effective investigation and therefore, application may not be entertained.

Before proceeding further, it would be useful to refer the settled law on the subject of grant/refusal of the anticipatory bail. Dealing with the

provisions of Section 438 of the Cr.P.C, the Apex Court in case of P. Chidambarram Vs. Directorate of Enforcement (2019) 9 SCC 24, has observed

that power under Section 438 Cr.P.C, is an extra ordinary power and same has to be exercised sparingly. The privilege of the pre-arrest bail should be

granted only in exceptional cases. The judicial discretion conferred upon the Court has to be properly exercised after application of mind as to the

nature and gravity of the accusation; possibility of applicant fling from justice and other factors to decide whether it is a fit case for grant of

anticipatory bail.

In Siddharam Satlingappa Mhetre Vs. State of Maharashtra (2011) 1 SCC 694, the Apex Court, laid down the factors and parameters to be

considered while dealing with the anticipatory bail. It was held that court should also consider whether the accusations have been made only with the

object of injuring or humiliating the applicant by arresting him.

After referring to Siddharam Mhetre (supra), the Apex Court in Jayprakashsing Vs. State of Bihar, (2012) 4 SCC 379, observed that parameters

for grant of anticipatory bail in a serious offence required to be satisfied and further while granting such relief, the Court must record the reasons

therefore. Anticipatory bail can granted only in exceptional circumstance, when the court is of the prima-facie view that the applicant has falsely being

en-roped in the crime and would not misuse his liberty.

In the case of Bhadresh Bipinbhai Sheth, (2016) 1 SCC 152, the Apex Court, has categorically held that frivolity in case of prosecution should

always be considered and in the event of their being some doubt, as to the genuineness of the prosecution, in the normal course of events, the accused

is entitled to an order of anticipatory bail.

The Apex Court in the case of Arnab Manoranjan Goswami Vs State of Maharashtra, (2021) 1 SCC 802 has observed that para-67 that it is duty

of the courts across the spectrum â€" the district judiciary, the High Courts and the Supreme Court â€" to ensure that the criminal law does not

become a weapon for the selective harassment of citizens. Courts should be alive to both ends of the spectrum â€" they need to ensure the proper

enforcement of criminal law on the one hand and the need, on the other, of ensuring that the law does not become a ruse for targeted harassment.

In light of the settled legal position, makes it clear that the power exercisable under Section 438 of the Code, is somewhat extraordinary in

character and it is to be exercised only in exceptional cases, where, it appears that the person may be falsely implicated or where there are reasonable

grounds for holding that the person accused for an offence is not likely to otherwise misuse his liberty.

Let us now consider these principles in the context of the present case. If we read the contents of the FIR, it emerges that from June, 2018 to

23.02.2020, parties were in relationship and indulged in the sexual acts. It is pertinent to note that on 29.06.2018, she came to know that the applicant

is married person, however, since then, she continued with the company of the applicant herein and maintained sexual relationship. From the reading

of the FIR dated 05.06.2021, registered with Sola High Court Police Station, for the offences punishment under Section 354(a) etc., it would appears

that, she did not disclose that under the false promise of marriage, he made representation deliberately to illicit her consent without having intention or

inclination to marry her as well as facts about the threat by the applicant to circulate her photographs on social media. It is evident that after their

break-up, she received Rs.50,000/- from the applicant herein on 09.03.2021. In these background facts, this Court is of the considered view that

prima-facie, it appears that the relationship between the accused -applicant and victim - complainant was of consensual nature and she remained in

the company of the applicant herein with all understanding the nature and consequences of sexual indulgence. The applicant herein remained present

before the Investigating Officer and has cooperated the investigation and his mobile phone is also seized by the authority. Applicant is permanent

resident of Ahmedabad and he does not flee from the justice. In the aforesaid facts, this Court is of the opinion that his custodial interrogation is not

necessary.

For the foregoing reasons, considering the factors and parameters, necessary to be considered for adjudication of the anticipatory bail and applying

to the facts of the present case, without commenting on merits, I find no reason to decline pre-arrest bail to the applicant. In the result, the present

application is allowed. The applicant is ordered to be released on bail in the event of his arrest in connection with a FIR being C.R. No.

11191030210071 of 2021 registered with Mahila Police Station (West) Dist.: Ahmedabad on his executing a personal bond of Rs.10,000/- (Rupees

Ten Thousand Only) with one surety of like amount on the following conditions:

(a) shall cooperate with the investigation and make himself available for interrogation whenever required;

(b) shall remain present at concerned Police Station on 18.02.2022 between 11.00 a.m. and 2.00 p.m.;

(c) shall 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

from disclosing such facts to the court or to any police officer;

(d) shall 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) shall at the time of execution of bond, furnish the address to the investigating officer and the court concerned and shall not change their residence

till the final disposal of the case till further orders;

(f) shall not leave India without the permission of the Trial Court and if having passport shall deposit the same before the Trial Court within a week;

and

(g) 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 it on merits;

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.

At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court in the present order. The observations made

herein in this petition shall not effect the merits of the case in any manner and are strictly confine to the disposal of this bail application.

Rule is made absolute to the aforesaid extent. Direct service is permitted.