1. By way of the present application under Section 439(2) of the Code of Criminal Procedure, the original complainant/prosecutrix has challenged the judgment and order dated 03.12.2012 passed by the learned Additional Sessions Judge, Court No.14, City Civil and Sessions Court at Ahmedabad in Criminal Misc. Application No.4234/2012, by which, the learned Sessions Judge has exercised his powers under Section 438 of the Code of Criminal Procedure and has enlarged the accused-respondent No.2 on anticipatory bail on certain conditions.
2. At the outset, I would like to state that pursuant to order dated 03.12.2012 and as per the conditions imposed by the learned Sessions Judge, the respondent No.2 - accused remained present before Meghaninagar Police Station on 09.12.2012. He was arrested on 09.12.2012 and was released on bail on the same day on executing a personal bond of Rs.10,000/-. As per the submission made by Mr.P.K. Jani, learned Public Prosecutor, the charge-sheet has been filed by the Investigating Agency before the learned Metropolitan Magistrate, Court No.3, Ahmedabad, on 4.2.2013. Mr.Jani has provided copies of the charge-sheet papers to the learned Advocates appearing for the prosecutrix and the accused on last hearing of the matter and a copy of which has also been supplied to this Court for considering the case on merits.
3. The brief facts emerges from the record of the case are as under:
That the prosecutrix lodged an FIR on 20.10.2012 with Meghaninagar Police Station against respondent No.2-accused and alleged that the accused had repeatedly committed the offence of rape from 2008 onwards till September, 2012 and thereafter, given threats to the prosecutrix. On 18.10.2012, the Investigating Officer recorded a complaint against the respondent-accused for the offences under Sections 376, 506(1) and 294(C) of the Indian Penal Code. The respondent-accused, having come to know about filing of the FIR, filed an application under Section 438 of the Code, in the Court of learned Sessions Judge, City Civil and Sessions Court, Ahmedabad, being Criminal Misc. Application No.4234 of 2012 and prayed to release him on anticipatory bail. The present applicant-complainant opposed the application by filing her written objections before the learned Sessions Judge. The learned Sessions Judge, after considering police papers as well as the objections, entertained the application and released the respondent-accused on anticipatory bail on certain conditions by order dated 03.12.2012. Hence, the present application.
4. Mr.Yatin Oza, learned Senior Counsel assisted by Mr. Ashish B.Desai, learned Advocate, appearing for the opponent-original accused, vehemently argued that the Trial Court has not properly appreciated the serious allegations levelled against the accused person and has enlarged the accused on bail at very early stage of investigation. By referring to the FIR, he submitted that the respondent-accused had committed the offence of rape first time in 2008 and having video clips of the act, he was blackmailing her and had continued the same offence of rape for number of years. The last act of rape was committed in September,2012. He further submitted that, though, she had shifted her residential premises, the accused person had continued to blackmail her and used to visit her different residents and committed the offence. He further submitted that the complainant had informed about the act of the accused to her father-in-law since her husband had left matrimonial home having been involved in an offence of cheating. He further submitted that the learned Trial Court has erred in appreciating the seriousness of the offence, in which a married woman, having a child of two years old, has come forward with specific allegations against the respondent-accused. He further submitted that the applicant/prosecutrix is a Non-Gujarati lady and she has no knowledge of Gujarati language and, therefore, the applications alleged to have been submitted by the prosecutrix with Odhav Police Station, which have been considered by the learned Sessions Judge, ought not to have been considered by the Sessions Court while considering an anticipatory bail application. He further submitted that the learned Sessions Judge has considered the case of respondent-accused on the ground that there was delay in lodging the FIR and, therefore, the Trial Court ought not to have enlarged the accused on anticipatory bail.
4.1 He has further submitted that during the pendency of the present application, on 01.3.2013, she has lodged an FIR with Sola Police Station and alleged that the respondent-accused along with other two persons were giving threats to her with regard to the incident and asking her to withdraw the complaint and, therefore, the accused persons have also misused the liberty granted by the Trial Court and are trying to tamper with the evidence on the record.
4.2 In support of his submission, Mr.Yatin Oza, learned Senior Counsel, by relying upon the decision in the case of Sohan Singh and another Vs. State of Bihar (2010)1 SCC 68 as well as in the case of State of Himachal Pradesh Vs. Prem Singh AIR 2009 SC 1010, submitted that the delay would not fatal the case of the prosecutrix. He has also relied upon the judgment of Puran Vs. Rambilas and another (2001)6 SCC 338 and submitted that since the order passed by the learned Sessions Court is passed without assigning proper reasons, the High Court can certainly exercise its powers under Section 439 of the Code of Criminal Procedure and cancel the bail. By relying upon a decision of the Apex Court in the case of State Rep. by the CBI Vs. Anil Sharma, reported at (1997)7 SCC 187, Mr.Yatin Oza, further submitted that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect, who is well ensconced with a favourble order under Section 438 of the Code and, therefore, before releasing the accused person on anticipatory bail, the Trial Court ought to have considered this aspect. He has also relied upon a reported decision rendered by Hon ble Apex Court in Criminal Appeal No.12 of 2013 dated 03.01.2013 and submitted that the Hon ble Apex court has asked the Courts to deal with the offences against woman with more sensitivity, which the learned Trial Judge has not done in the present case. By relying on a judgment and order passed by this Court in Criminal Misc. Application No.12924 of 2012 with Criminal Misc. Application No.10805 of 2012, in the case of State of Gujarat Vs. Madhubhai Bhimabhai Mer and others dated 23.10.2012, and by referring to the certain paragraphs of the judgment of this Court, he submitted that being serious accusation made in the FIR, the learned Trial Court ought not to have considered the case of the respondent-accused while entertaining the application under Section 438 of the Code.
5. On the other hand, Mr. C.B. Upadhyaya, learned Advocate for the respondent No.2-accused has submitted that learned Judge, while dealing with the objections and police papers, have rightly come to the conclusion that the petitioner was entitled for anticipatory bail. He further submitted that the learned Trial Court has considered the relevant documentary evidence, which were submitted by the complainant herself before another police station about the relationship between the prosecutrix and the respondent-accused. Pursuant to filing the complaint on 01.03.2013 with regard to threats given by the accused, he further submitted that the petitioner was arrested by the Sola Police on 12.3.2013, thereafter, he preferred Criminal Misc. Application No.325 of 2013 in the court of learned 5th Additional Sessions Judge, Ahmedabad (Rural) and he has been granted regular bail by the learned Sessions Judge today. He undertakes to produce the certified copy of this order passed in Criminal Misc. Application No.325 of 2013 on the record of the present case. He further submitted that as per the conditions imposed by the Sessions Court while releasing him on anticipatory bail, he did remain present at Meghaninagar Police station on 9.12.2012, where he was released on bail by the concerned police station. He further submitted that as far as the police remand is concerned, he had shown his willingness before the learned Session Judge, which has been recorded in the order and accordingly learned Sessions Judge has also imposed the conditions permitting the investigating agency to apply to the competent Magistrate for police remand of the petitioner. He further submitted that the FIR with Sola Police Station is under investigation and during investigation, he has already been enlarged on bail by the competent Court. He further submitted that the principles with regard to granting bail and cancelling bail are different in nature and required to be dealt with in accordance with law and as per the principles laid down by the Hon ble Apex Court in catena of decisions. By relying on the decision of the Apex Court in case of Siddharam Satlingappa Mhetre Vs.State of Maharashtra and others,as reported at [2011] 1 SCC 6941, he submitted that the learned Trial Court has rightly considered the case in favour of the accused.
6. Mr.P.K.Jani, learned Public Prosecutor, who is appearing for the State, as stated herein, in the beginning of the judgment,has supplied the copy of the charge-sheet papers submitted in the present case before the learned Metropolitan Magistrate. He has taken me through the entire charge-sheet papers of the case and assisted the Court as an officer of the Court in the manner which public prosecutors are suppose to act and assist.
It appears from the charge-sheet papers that several statements have been made by the prosecution on different dates before different police stations including Meghaninagar Police Station as well as Odhav Police Station prior to filing of the present complaint. It appears from the record that on 9.9.2012 i.e. prior to lodging the present FIR, Sub-Inspector of Meghaninagar Police Station, recorded statement of the prosecutrix. It appears from the said statement that she had stated that she was residing in a particular society and the accused is a neighbour of the residence and she was in love affairs with him since last four years. Since some dispute had taken place between the prosecutrix and the accused, she had visited the police station, however, by giving statement on 9.9.2012, she stated that she did not want to lodge any complaint against the present accused. Thereafter, on 18.9.2012, again prior to filing the present FIR, the prosecutrix submitted an application before the Police Inspector of Odhav Police Station, Ahmedabad, against the present respondent-accused and his relatives namely; the parents of the accused and other close family members of the accused and grievance was raised that the accused have committed the offences under Sections 498-A, 323, 506 and 114 of the Indian Penal Code and under Sections 3 and 7 of the Dowry Prohibition Act. It was alleged in the said application that she had married the respondent-accused in a temple before four years and she had stayed with respondent-accused and they were residing as husband and wife and thereafter, some allegations were made against the accused under the provisions of the IPC and the Dowry Prohibition Act. It was alleged that, being the husband of the prosecutrix, he has committed the offence under Sections 498-A, etc. of the IPC and under the provisions of Dowry Prohibition Act. I found signature of the prosecutrix at the end of the said application in the presence of Police Officer of Odhav Police Station. Before some steps are taken by the concerned Police Officer, within four days, she appeared before the Odhav Police Station on 23.9.2012 and stated that she was not interested in proceeding further with the application. On 18.9.2012, in the said statement, it was reiterated that she had married the accused on 15.5.2008 at Ambaji Temple of Village-Trapod on Himmatnagar Highway.
8. I have also gone through the statements of the father-in-law and mother-in-law of the prosecutrix, namely, Jayantilal Manilal Sathvara, Hiraben Jayantilal Sathvara and sister-in-law Anitaben Dhavalkumar Sathvara. It appears from the statements that the prosecutrix had informed the witnesses one month prior to lodging of the complaint that the husband i.e. son of the witnesses, had left the house and prosecutrix along with her son are residing at a particular place, where the accused is committing the offences as stated in the FIR.
9. Considering the overall facts and circumstances of the case, the following facts emerge from the record of the charge-sheet, which are as under:
That the petitioner got married to one Manoj in the year 2006 at Mumbai. The prosecutrix along with her husband, father-in-law and mother-in-law, stayed at Mumbai upto 2007 to 2008. She along with her husband shifted at Ahmedabad in 2008 and started residing at Ratnasagar Society, House No.47 in Meghaninagar area. The accused is resident of Block No.45 in the same Ratnasagar Society. As per the complaint as well as as per the statement recorded prior to lodging of the complaint, it appears that, she came into contact with the accused way back in the year 2008. She has delivered a child on 31.08.2010 at Ahmedabad. As per her say, the first offence of committing rape occurred in the month of September/October, 2008 (time of Navratri)where the entire family members of the prosecutrix and the accused were not present at the house of the prosecutrix. When the incident took place, a video clip has been recorded in the mobile of the accused. Thereafter, as alleged, he started black-mailing her by threatening that, if, she does not surrender to his wishes, he would show the video clippings to her husband and put it on Internet and thereafter, he continued the commission of the offence of rape against her will.
ii) That it also appears from the complaint that the husband and wife left the house of Ratnasagar Society and shifted their residence to another area. She has categorically stated that a case of the cheating has been lodged against the husband of the prosecutrix and had left the matrimonial home and has not returned to the in-laws home.
iii) That it also appears that as per the statement recorded by the Meghaninagar Police Station on 9.9.2012 that she herself has stated that she fell in love with the respondent-accused and was in relationship with him since last four years. She has stated in the statement that while she was leading a family life, one day, on the same issues, she annoyed with the accused and was compelled to lodge the FIR, but since the accused had assured that he will take care of herself, she decided not to lodge any complaint against the present respondent-accused.
That while filing an application before the Odhav Police Station on 18.9.2012, she stated that, she had married with accused in way of Gandharv Vivah at Ambaji Temple at Village Trapod before four years and she is residing with the accused as his wife. She has stated that she started residing along with respondent and his family members at Ratnasagar Society. She has stated that she delivered a child on 31.8.2010 when she was residing with the accused and his family members. It was further alleged in that application that she had quarrel with accused about the paternity of the child, since name of father of the child in the record of hospital, father s name was mentioned as Manoj instead of Sandip. By narrating much more details about the relationship several allegations were made as if she is a legally wedded wife to accused.
That within four days on 23.9.2012, she again visited the same police station i.e. Odhav Police Station, and stated before the Police Officer that a written complaint which was submitted by her on 18.9.2012 against her husband i.e. present accused and her in-laws and she was not interested in proceeding further with the same since the disputes were settled between them. The statement given on 23.3.2012 by the prosecutrix was recorded by the concerned Police Officer which is a part of the charge sheet papers.
10 I find that the petitioner/prosecutrix has put her signature in English, however, in all such applications, it has been mentioned that, she has been read over the entire application/ complaint and the contents of the applications are explained to her and has stated that she understands the language. As stated here-in-above, these applications were submitted prior to lodging the present complaint. It is not believable that the accused, as alleged by her, had obtained her signatures on blank papers and the same are used in a way of creating such applications/complaints since in all the applications/complaints, the Police Inspector of the concerned Police Station put his seals as well as his signatures.
11 This Court is aware that the merits and demerits of the case are not required to be dealt with by giving elaborate reasoning and, therefore, though, the statement of the prosecutrix do reveals much more things which had happened in the past between herself and the accused, at this stage, I have not discussed the same in detail. However, prima facie, I am of the opinion that she was in relationship with the respondent-accused since long time and the reasons best known to her and the accused, it appears that, their relationship became strain.
12 In my opinion, the Investigating Agency, though, had materials with regard to the complaint and/or applications filed by the prosecutrix, ought to have prayed for police custody of the respondent-accused when it was alleged that he accused had video clips in his mobile.
13. As far as the complaint lodged with Sola Police Station, being CR. No. 3089/2012 under Sections 506(2), 507, 114 of the Indian Penal Code is concerned, as stated here-in-above, the respondent-accused has been released on bail by the competent Court, but the investigation is yet not completed.
14. Considering the parameters laid down by the Hon'ble Apex Court in the case of Bhagirathsinh Jadeja v. State of Gujarat [AIR 1984 SC 372] and Dolat Ram v. State of Haryana [1995 SCC (Cri.) 237] for exercise of powers under Section 439(2) of the Code, it cannot be said that other than legal consideration weighed with the learned Additional Sessions Judge for exercising powers and keeping in mind law laid down by the Hon'ble Apex Court in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra & Ors. reported in [(2011)1 SCC 694], the respondent-accused is granted anticipatory bail which do not make out a case for this Court to exercise powers under Section 439(2) of the Code of Criminal Procedure.
15. Considering the ratio laid down by the Hon'ble Apex Court in various decisions, powers of the learned Appellate Court are different than granting the same. In case of Dolatram and others V/s. State of Haryana, reported at 1995(1) SCC 439, Hon'ble Supreme Court has held that bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. Therefore, I am of the opinion that when the respondent- original accused has been released on anticipatory bail and has not committed any breach of conditions imposed by the court, there are no reasons to exercise my power under section 439(2) of the Code of Criminal Procedure and cancel the anticipatory bail granted in favour of the respondent No.2 herein- original accused.
16. In view of the above, the present application is required to be rejected. Hence, the application is accordingly dismissed. Notice is discharged. However, it would be open for the prosecution/complainant to file appropriate application for cancellation of bail, if, sufficient material is available about committing any breach of conditions imposed by the Sessions Court while releasing the respondent accused on anticipatory bail, vide order dated 03.12.2012.
(A.J.DESAI, J.) Ashish Tripathi Page 15 of 15