Bombay High Court
Lakhansingh Misrilal Kushwaha vs The State Of Maharashtra And Others on 30 January, 2024
2024:BHC-AUG:2446
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-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
918 BAIL APPLICATION NO. 2374 OF 2023
Lakhansingh Misrilal Kushwaha
..APPLICANT
-VERSUS-
The State of Maharashtra and others ..RESPONDENTS
...
Advocate for Applicant : Mr. Andhale Sandip Ramnath
APP for Respondent/State : Mrs.Pratibha J. Bharad
Advocate for Respondent No.3 : Ms. Sayali Tekale (appointed)
...
WITH
BAIL APPLICATION NO. 2275 OF 2023
Amina @ Sultana Raju Shah
..APPLICANT
-VERSUS-
The State of Maharashtra and another ..RESPONDENTS
...
Advocate for Applicant : Mr. Shah Subodh P.
APP for Respondent/State : Mrs.Pratibha J. Bharad
Advocate for Respondent No.2 : Ms. Sayali Tekale (appointed)
.....
CORAM : SANJAY A. DESHMUKH, J.
DATED : 30th JANUARY, 2024.
PER COURT :-
1. The applicants have prayed for bail under section 439 of
the Code of Criminal Procedure, 1973 (for short, "Cr.P.C.") in
connection with crime No. I 523 of 2022 registered with Rahata
Police Station, Dist. Ahmednagar, for the offences punishable under
sections 370, 376 (2) (m)(n), 323, 504 and 506 of the Indian Penal
Code, 1860 (for short, "IPC") and under sections 3, 4(1), 5, 9 of
Immoral Trafficking Act, 1956 and under sections 3(A), 4, 5(J), 2(L),
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6, 16, 17 of POCSO Act, 2012.
2. Informant averred in the report that applicant - Amina is
her maternal aunt. Her parents are no more. Her step mother was
harassing her. Therefore, she came to reside with Amiina at Rahata,
Tq. Rahata, Dist.Ahmednagar as per request of her maternal uncle.
On 01.10.2022, at about 6 p.m., her aunt told her that they have to
go to Shirdi. Informant, her maternal aunt and Bhavana, the friend of
Amina went to Shirdi. When they were near to the temple, Amina told
her that one person will come, he will take her in a room and she
should do as per his wish. She threatened that if she refuses to do
so, she will be expelled from the house. She was frightened. At about
7.30 p.m., one person came there in white colour car having white
clothes named as Shendiwala, aged about 50-54 years. He took
informant with him to one hotel and tried to outrage her modesty by
touching her. When she tried to prohibit him, he beaten her and
committed sexual intercourse with her. She suffered by the pains and
she become unconscious there. She regained consciousness at
about 9.30 p.m. and she was dropped to Amina. Thereafter, her
maternal aunt told her that she has to continue such prostitution
business, otherwise she will not maintain her. She also threatened
not to tell that incident to anybody, otherwise she will eliminate her.
Therefore, she could not lodge the report. Thereafter, after 4-5 days,
one Gorakh Gadekar made phone call to maternal aunt of the victim.
She told her that one person is ready to pay Rs.10,000/- and the
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informant has to go with him. Thereafter, at about 8 p.m., she went to
hotel "Bambu House" on the two wheeler of Gorakh Gadekar. He
took her to one Lodge. One Bhushan Pawar (Vakil) was there. He
committed rape on her. Due to pains, she suffered. Again he tried to
commit rape on her. She refused therefore he assaulted her. In the
morning at 5 a.m., she came to the house of Amina by auto-rickshaw.
Thereafter Bhushan Pawar committed rape on her for 6-7 times and
paid some amount to Amina.
3. Thereafter, continuously Amina forced informant to
commit same acts with 5-6 unknown persons.
4. Applicant - Lakhansingh was the Manager of that hotel.
He used to search new customers. Raheman Raju Shah used to
leave her in that hotel for that prostitution business. Lakhansingh
used to commit rape on her without her consent, without using
condom. When informant told that fact to Amina, she was abusing
and beating her. Meanwhile, informant met with Arbaj Khan. He gave
help of assurance to her.
5. On 23.11.2022 at about 1.30 a.m., informant was
suffering from stomach pains, therefore, Amina took her to the
hospital of one Dr.Chandshah. Thereafter, the maternal aunt of
informant took her to the Police Station, Rahata and demanded
certificate in order to admit the informant in Anath Ashram. That time,
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the Police inquired with her and she stated all the incidents occurred
with her. That time, a report was lodged on 24.11.2022 and these
applicants were arrested.
6. Mr.Shah, the learned advocate for the applicant
submitted that co-accused Gorakh Gadekar is released on bail by
this Court in Bail Application No.368 of 2023. One of the co-accused
is also granted facility of pre-arrest bail. He prayed bail on the ground
of parity. He further pointed out the statements of the witnesses
particularly their different versions regarding Arbaj Khan who is the
friend of informant. He further pointed out the report of medical
examination of the informant is that she was having no any injury. He
pointed out that the provisions of POCSO Act are not attracting as
held by this Court in Bail Application No.368 of 2023. The learned
advocate for the applicant submitted that the applicant is behind bar
for more than one year, the applicant has roots in the society, she will
not flee away from the trial. Being woman, she be released on bail.
7. Mr.Andhale, the learned advocate for the applicant also
pointed out the orders granting regular bail and anticipatory bail to
the co-accused. He submitted that there is no such medical evidence
as alleged by the informant. He submitted that at the most it is
consensual sex. The delay caused for lodging report is not explained.
He submitted that no specific dates of rape incident are either
mentioned in the report and the statement of the informant recorded
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under section 164 of the Cr.P.C.. The applicant is falsely implicated
in the crime. He lastly prayed for granting bail on the ground of parity.
8. The learned APP and the learned advocate appointed on
behalf of respondent no.2 in Bail Application No. 2275 of 2023 and
for respondent no.3 in Bail Application No.2374 of 2023 strongly
opposed the applications and pointed out the report and statements
of the witnesses. They pointed out that applicant Amina is wirepuller
of this heinous crime and she forced the informant to commit such
heinous acts. She is severally abused. It is lastly prayed to reject the
applications.
9. Mr.Shah, the learned advocate for the applicant is
relying upon the authority of Arnab Manoranjan Goswami V/s State
of Maharashtra and others reported in (2021) 2 SCC 427, more
particularly para 70, in which it is held thus :-
"70. More than four decades ago, in a celebrated
judgment in State of Rajasthan v. Balchand (1977) 4 SCC
308, Krishna Iyer, J. pithily reminded us that the basic rule
of our criminal justice system is "bail, not jail". The High
Courts and courts in the district judiciary of India must
enforce this principle in practice, and not forego that duty,
leaving this Court to intervene at all times. We must in
particular also emphasise the role of the district judiciary,
which provides the first point of interface to the citizen.
Our district judiciary is wrongly referred to as the
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"subordinate judiciary". It may be subordinate in hierarchy
but it is not subordinate in terms of its importance in the
lives of citizens or in terms of the duty to render justice to
them. High Courts get burdened when courts of first
instance decline to grant anticipatory bail or bail in
deserving cases. This continues in the Supreme Court as
well, when High Courts do not grant bail or anticipatory
bail in cases falling within the parameters of the law. The
consequence for those who suffer incarceration are
serious. Common citizens without the means or resources
to move the High Courts or this Court languish as
undertrials. Courts must be alive to the situation as it
prevails on the ground-in the jails and police stations
where human dignity has no protector. As Judges, we
would do well to remind ourselves that it is through the
instrumentality of bail that our criminal justice system's
primordial interest in preserving the presumption of
innocence finds its most eloquent expression. The remedy
of bail is the "solemn expression of the humaneness of the
justice system". Tasked as we are with the primary
responsibility of preserving the liberty of all citizens, we
cannot countenance an approach that has the
consequence of applying this basic rule in an inverted
form. We have given expression to our anguish in a case
where a citizen has approached this Court. We have done
so in order to reiterate principles which must govern
countless other faces whose voices should not go
unheard."
10. Perused the charge-sheet and the orders granting
regular bail and anticipatory bail to the co-accused.
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11. While granting regular bail, this Court held that role of
the co-accused Gorakh Gadekar @ Padekar was limited, to leave the
victim at the hotel, and therefore, he was released on bail.
12. As far as, granting of anticipatory bail to the another co-
accused is concerned, it was granted because the informant
submitted an affidavit that co-accused Bhushan Pawar's (Vakil)
name was included in the FIR at the instance of her maternal aunt
Amina falsely. Therefore, anticipatory bail was granted to him.
13. In the report, informant has explained as to how the
delay caused for lodging the report that Amina aunt was threatening
to her and how her mental condition was during that period.
14. Applicant-Amina is the prime accused and she forced
and compelled the informant for doing the prostitution business and
many times rapes were continued on her for month together. It is
very serious illegal overt act on her part. She may pressurise
prosecution witnesses, she may compel such innocent girls in such
heinous prostitution business in future. Therefore, considering her
role she is not entitled for bail.
15. Applicant - Lakhansingh was the Manager of the said
Lodge. He took disadvantage of the informant and forcibly committed
rape on the victim on many times and that too without use of
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condom. He beaten her when she refused for sexual intercourse.
When she made complaint about that to Amina, she also abused and
beaten her. This shows that there was no consent on the part of the
informant which reveals prima facie from the report and her
statement.
16. Further only because any woman is doing prostitution
business, there can not be permanent consent on her part who wish
to have sexual intercourse with her. She has right to refuse to
perform sexual intercourse with anybody. Therefore, when there is
no consent of the informant as stated by her in the report itself, the
applicant Lakhansingh can not be released on bail as there was no
such consent.
17. As far as medical evidence is concerned in each and
every case medical evidence is not necessary. In Indian culture
woman can not make such false allegation of rape and get defame
her character and suffer for entire life.
18. Considering all above reasons, the authority of Arnab
Goswami (cited supra) is not helpful to the applicants to release them
on bail as the factual matrix are different in this and that case.
Further it was application for anticipatory bail and this application is
filed for regular bail thus the parameters are different. Considering
the serious nature of the crime, the possibility of pressurizing the
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prosecution witnesses on the part of applicants cannot be ruled out if
they are released on bail. The applications, therefore, deserve to be
rejected. Accordingly, the applications are rejected.
19. Fees of Ms.Sayali Tekale appointed advocate for
representing the cause of respondent no.2 in Bail Application
No.2275 of 2023 and respondent no.3 in Bail Application No.2374 of
2023 be paid through the High Court Legal Services Sub-Committee,
Aurangabad as per rules.
(SANJAY A. DESHMUKH, J.)
sga
