Sanjaybhai Virjibhai Lakhani vs State Of Gujarat

J. C. Doshi, J

By way of the present petition under Section 438 of the Code of Criminal Procedure, 1973, the petitioner has prayed to release him on anticipatory bail in case of his arrest in connection with the FIR registered as C.R.No.11193060240013 of 2024 registered with Vadiya Police Station.

Learned Senior Advocate Mr.N D Nanavaty with Mr.Rajput learned Advocate for the petitioner having taken this Court through the record as well as FIR submitted that it is a case of consensual relationship. FIR dated 20/01/2024 is filed for the relationship which starts from 22/12/2022 and ended on 20/12/2023. Learned Senior Advocate Mr.Nanavaty would submit that petitioner and victim were in live in relationship. Referring to page 42, learned Senior Advocate Mr.Nanavaty would submit that live in relationship agreement was executed on 18/12/2023 which is still in existence which is executed subsequent to the customary divorce between the first informant and her husband. Learned Senior Advocate Mr.Nanavaty would submit that petitioner is a married man and it was well within the knowledge of first informant. Learned Senior Advocate Mr.Nanavaty would submit that this is consensual relationship between the parties and on being quarrels in the relationship, FIR in question came to be filed.

2.2 Learned Senior Advocate Mr.Nanavaty would referring the telephonic conversation between the parties which reveals that once the petitioner denied to abide by the submission, as a counter blast, the FIR came to be filed as the petitioner is the Sarpanch of Village and by filing such FIR, his image would be tarnished and thereby to settle the political rivalries, FIR came to be filed.

2.4 Learned Senior Advocate Mr.Nanavaty would submit that petitioner is the permanent resident of Dist: Amreli and having movable and immovable property and considering the nature of allegations, role attributed to the petitioner, the petitioner may be enlarged on anticipatory bail by imposing suitable conditions.

Learned Advocate Mr.Majmudar appearing for the victim while taking this court through the FIR would submit that earlier incident took place and victim was photographed in compromise position and she was intoxicated and on passing threat upon victim of making viral the photographs, physical relationship was done with the victim. He would further submit that on 20/12/2023 the victim was taken to Rajkot under the pretext of compromising with her husband however taking advantage of the situation, the petitioner raped the victim which is an independent incident. He would further submit that considering the nature of allegations, let there be investigation and interrogation which may entail the correct position. By making above submissions, he would submit to dismiss the present application.

Learned Additional Public Prosecutor appearing on behalf of the respondent-State by placing the police report on record would submit that there are antecedents against the petitioner and prima facie the offence as alleged is made out and therefore he has opposed grant of anticipatory bail looking to the nature and gravity of the offence.

Heard the learned Advocates for the respective parties and perused the papers.

At the outset, let refer judgment of the Hon’ble Apex Court in the case of Sonu alias Subhas Kumar v/s. State of Uttar Pradesh [AIR 2019 SC 4010]. In para 7 and 11, it is held as under :-

“7. On the basis of the rival submissions and with the assistance of the counsel, we have perused the FIR. The FIR specifically records that the second respondent had developed a friendship with the appellant and that he had assured that he would marry her. The FIR then records that the appellant and the second respondent developed a physical relationship which spread over a period of one and a half years, during the course of which the second respondent conversed with the parents and sister of the appellant. It has been alleged in the FIR that the parents of the appellant were agreeable to the couple getting married. As a matter of fact, the appellant returned to his home town at Jhansi on 5 January 2018 when he had made a phone call to her stating that she should come and visit him so that they can get married. On travelling to Jhansi at the behest of the appellant, the second respondent was informed by the father of the 5 appellant that the appellant did not wish to marry her. The contents of the statement under Section 164 of CrPC also indicate that the second respondent had “voluntarily developed relationship of husband-wife with him”. The second respondent has then stated that “now, he and his family members are refusing to marry with me”. The second respondent has further stated that “my sole grievance is that Sonu is refusing to marry with me.

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Bearing in mind the tests which have been enunciated in the above decision, we are of the view that even assuming that all the allegations in the FIR are correct for the purposes of considering the application for quashing under Section 482 of CrPC, no offence has been established. There is no allegation to the effect that the promise to marry given to the second respondent was false at the inception. On the contrary, it would appear from the contents of the FIR that there was a subsequent refusal on the part of the appellant to marry the second respondent which gave rise to the registration of the FIR. On these facts, we are of the view that the High Court was in error in declining to entertain the petition under Section 482 of CrPC on the basis that it was only the evidence at trial which would lead to a determination as to whether an offence was established.”

This Court may also refer the judgment of Hon’ble Apex Court in the case of Bhadresh Bipinbhai Sheth Vs. State of Gujarat reported in AIR 2015 SC 3090, wherein, the Hon’ble Apex Court delineated the following factors and parameters that needs to be taken into consideration while dealing with the anticipatory bail.

“(a) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

(b) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;

(c) The possibility of the applicant to flee from justice;

(d) The possibility of the accused's likelihood to repeat similar or other offences;

(e) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;

(f) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;

(g) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution, because over implication in the cases is a matter of common knowledge and concern;

(h) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to free, fair and full investigation, and there should be prevention of harassment, humiliation and unjustified detention of the accused;

(i) The Court should consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

(j) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused in entitled to an order of bail.”

On reading the FIR what prima facie appears that victim is a married lady and when she firstly entered into physical relationship with the petitioner she was married and having two children and she was aged 23 years old. The record further reveals that on 08/12/2023 she entered into the agreement of live in relationship with the petitioner and she was knowing fully well that she has one child and has taken divorce from her husband. The petitioner has two children and still she entered into the relationship with the petitioner. The affidavit of the complainant is not disclosing about the relationship; nor the FIR so. It is alleged that on 20/12/2023 she was taken to Rajkot under the pretext of compromising with her husband and she was raped. Prima facie, this appears to be uneblievable on the ground that live in relationship agreement was executed 12 days back between i.e. on 08/12/2023 and the victim has taken the customary divorce from her husband on 04/09/2023. Within three months of customary divorce, how there can be possibility of compromise . This appears to be fishy statement coming from the FIR. What further appears that relationship between the parties were with consent as both of them are major knowing fully well about the implications for entering into the physical act and thus prima facie offence under Section 375 of the IPC is not attracted. The telephonic conversation reveals that there are some political rivalries however as the petitioner is the Sarpanch in the Village and therefore there are chances to tarnish his image, FIR came to be filed. Thus, reasons stated herein above are sufficient to establish that the petitioner is entitled to anticipatory bail.

This Court while exercising discretion in favour of the petitioner has taken into consideration law laid down by the Apex Court in the case of Siddharam Satlingappa Mhetre v/s. State of Maharashtra and Ors. [2011] 1 SCC 694, wherein the Hon’ble Apex Court reiterated the law laid down by the Constitutional Bench in the the case of Shri Gurubaksh Singh Sibbia & Ors. v/s. State of Punjab (1980) 2 SCC 665. This Court has also taken into consideration law laid down in the case of Sushila Agarwal v/s. State (NCT of Delhi [(2020) 5 SCC 1].

In the result, the present petition is allowed by directing that in the event of applicant herein being arrested pursuant to FIR registered as C.R.No.11193060240013 of 2024 registered with Vadiya Police Station the petitioner shall be released on bail on furnishing a personal bond of Rs. 10,000/- (Rupees Ten Thousand only) with one surety of like amount on the following conditions that the petitioner :

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

(b) shall remain present at concerned Police Station on 20 & 21.3.2024 between 10.00 a.m. and 4.00 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 residence till the final disposal of the case till further orders;

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

(g) mark his presence on every Thursday between 10:00 a.m. to 12:00 a.m. before the concerned Police Station for the next one year;

If breach of any of the above conditions is committed by the petitioner, the concerned learned Judge will be free to take appropriate action in the matter. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions in accordance with law. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court while enlarging the petitioner on bail.

Rule is made absolute. Direct service is permitted.