Kamleshbhai Bhikhabhai ... vs State Of Gujarat
2022 Latest Caselaw 1296 Guj

     R/CR.MA/15335/2021                           ORDER DATED: 04/02/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 15335 of 2021

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                    KAMLESHBHAI BHIKHABHAI BHORANIYA
                                 Versus
                           STATE OF GUJARAT
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Appearance:
MR BHARAT T RAO(697) for the Applicant(s) No. 1
MR BM GUPTA(336) for the Respondent(s) No. 1
MR CB GUPTA(1685) for the Respondent(s) No. 1
MR MANAN MEHTA APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

                             Date : 04/02/2022

                              ORAL ORDER

1. 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. 111890001210504 of 2021 registered with Halvad Police Station, for the offences punishable under Sections 376(2)(n), 354(A) of IPC read with Section 12 of POCSO Act.

2. Brief facts giving rise to present application are that, an FIR for the offence of rape and sexual harassment to the minor daughter of the victim aged about 14 years came to be filed on 28.07.2021. The parties are residing at village: Halvad, Dist.: Morbi. Since last 8 years and more, the victim and her husband, with two kids are residing in rented house, adjacent to the house of the applicant

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herein and accordingly they developed family relationship. It is stated by the victim that she fell in love with the applicant and indulge in physical relationship, which would continue for long time. Admittedly, the vary facts being in knowledge of husband of the victim and other members of the society. It is stated that before one and half year ago, she informed the applicant that, she intends to end this relationship for the betterment of children, however, the applicant herein forced her to maintain physical relationship and threatened to circulate and upload her objectionable photographs, video on social media. Upon receiving such threats, she succumbed to the demands of the applicant herein and maintain physical relationship with him. It is alleged that around one and half year from the date of lodgement of present FIR, victim was told by her minor daughter, aged about 14 years, that the applicant invited her at his house, where, he kissed her and touched her inappropriately on her breast. It is stated that, since then, the minor daughter had been sent to her native place. It is alleged that before 3 months of the FIR, the applicant herein sent voice message to her husband informing that, they should vacate the rented premises, threatened for dire consequences. In this background facts, the victim being a married woman, aged about 36 years, lodged an FIR for the offences as referred above, against the applicant herein.

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3. The applicant herein preferred Anticipatory Bail Application before the Sessions Court, Morbi. The Sessions Court, vide its order dated 13.08.2021, observed that the offence is serious in nature and prima-facie involvement of the applicant is established and accordingly, the application came to be rejected.

4. Heard learned counsel Mr. B.T. Rao, for the applicant, Mr. Chandrashekhar B. Gupta, learned advocate for the original complainant - victim and Mr. Manan Mehta, learned APP for the respondent State.

5. Learned counsel Mr. BT Rao for the applicant, raised the following contentions:

(1) The victim's version is not believable, as there is a delay of one year and seven month in lodging the FIR for which, there is no reasonable explanation offered by the victim. In this context, he submitted that the victim was not prevented by any body from filing the complaint. Thus, the FIR has been filed with the object of humiliating the applicant by arresting him;

(2) Referring the transcript of audio recording of conversation, submitted that it was the husband of the victim pressurized the applicant to maintain relationship with the victim and at relevant point of time, when minor daughter was studying in the school at Halvad, she having

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affair with school boy and at the behest of the victim the applicant herein intervened and convinced the victim and her daughter to get admission at another school, as a result of which, the minor daughter sent to native place of the victim at district Kutchh for education. In this background fact, it was submitted that the incident of minor daughter never happened and concocted by the victim to malign the applicant for the reasons best known to her;

(3) It was submitted that the applicant herein decided to discontinue the relationship with victim, for which, meeting was held at the house of the victim and it was mutually decided that this love affair should stop immediately for betterment of both the families and since January, 2020, there is no relationship between the parties, therefore, the applicant has at no point of time threatened the victim to have physical relationship with him nor blackmailed her as referred in the FIR;

(4) It was submitted that invoking the provisions of POCSO Act by the victim and considering the delay of 1 year and 7 months in lodging the FIR, which shows the intention of the victim and for extraneous reasons vague allegations being alleged against the applicant.;

6. In view of the aforesaid contentions, the learned counsel Mr. Rao placing reliance on the case of Arnab

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Manoranjan Goswami Vs State of Maharashtra, (2021) 1 SCC 802, contended that the victim has falsely lodged the FIR to harass the applicant and therefore, case is made out for anticipatory bail and the application may be allowed.

7. Learned counsel Mr. Chandrashekhar Gupta appearing for the original informant, referring the contents of the affidavit of the victim, opposed the bail application, contending that the victim was compelled by the applicant to maintain physical relationship and threatened her that he would send videos and photos which are explicit in nature, to the family members on social media. In this background facts, he submitted that there was no consent on the part of the victim for the alleged sexual act and therefore, prima-facie offence of rape made out against the applicant herein. Mr. Gupta, learned advocate further submitted that allegations of sexual harassment to the minor daughter of the victim is grave and affecting the society at large and therefore, judicial discretion, would not to be exercised in favour of the applicant, as in the facts of present case, the parameters for grant of anticipatory bail are not satisfied.

8. The law is well settled that anticipatory bail is not to be granted as a matter of rule and it has to be granted only when court is convinced that exceptional circumstance exists to resort to that extra ordinary

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remedy. Dealing with the provisions of Section 438 Cr.P.C, the Apex Court, in P. Chidambaram Vs. Director 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.

9. 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,.

10. 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

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is of the prima-facie view that the applicant has falsely being enroped in the crime and would not misuse his liberty.

11. 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.

12. The Apex Court in the case of Arnab Manoranjan Goswami (supra) has observed in para-67 that it is duty of the courts across the spectrum - the district judiciary, the High Courts and the Supreme Court - 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 - 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.

13. In the facts of the present case, victim alleges that the applicant herein compelled her to maintain physical relationship, otherwise, he will circulate and upload her objectionable photographs, videos on social media and upon receiving such threats, she succumbed to the demands of the applicant herein. In this context, if we

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peruse the contents of the FIR, it indicates that since long, the parties were in relationship, that too with the consent of husband of the victim. It is alleged by the victim that she wanted to discontinue the relationship for the betterment of family, whereas, specific stand has been taken by the applicant herein alleging that, he decided to stop the relationship for which meeting was arranged at the house of the victim and both have decided to end this relationship and since January, 2020, there is no relationship between them. In the FIR, there is no any specific date being mentioned by the victim that on which date, the threat was given by the applicant that if she does not maintain relationship then, he will upload the photographs. In these background facts, there court is of the considered view that, so far victim is concerned, prima-facie, no reasonable ground to believe that she had been compelled by the applicant herein to maintain physical relationship.

14. The other allegation leveled against the applicant in the FIR by the victim that before 1 year and 6 months from the date of lodgement of the FIR, her minor daughter aged about 14 years told her that the applicant herein was invited at the house of the applicant, where, he kissed her and touch her inappropriately on her breast. The FIR being filed on 28.07.2021. In this context, if we consider the conduct of the victim, it appears that at the relevant point of time, when incident of minor daughter was happened,

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she having cordial relationship with the applicant herein. At no point of time, victim or her husband filed complaint either to the elder of the family or with the concerned police station. A bare perusal of the FIR would show that no any reasonable explanation being offered for lodging late FIR for the incident of daughter. This Court is conscious about the settled law on filing of late FIR. It is settled by various pronouncement of the Apex Court and in this Court that, mere delay in FIR is no ground to discard prosecution story and same has to be assessed in the light of the facts and circumstance of each case. When there is an unexplained delay in lodging FIR, the possibility of the false story implicating the accused cannot be ruled out.

15. In sexual offence, it is no doubt true that mere delay in lodging the FIR, is not necessarily fetal to the case of prosecution. In the case of Jayprakashsing (supra), the Apex Court, in para-12 of the judgment, observed thus,

"para-12: The FIR in a criminal case is a vital and valuable piece of evidence, though may not be substantive piece of evidence. The object of insisting upon prompt lodging of the FIR in respect of the commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and part played by them as well as the

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names of eye-witnesses, present at the scene of occurrence. If there is a delay in lodging the FIR, it looses the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of large number of consultation / deliberations. Undoubtedly, the promptness in lodging the FIR, is an assurance regarding truth of the informant's version. A promptly lodged FIR reflects the first the first hand account of what has actually happened and who was responsible for the offence in question. "

16. In light of the aforesaid settled law and considering the facts and circumstance of the present case, there is a reasonable ground to believe that the FIR came to be filed by the victim, as the applicant herein threatened the her to vacate the rented premises. As held in the case of Bhadresh Sheth (supra), the frivolity in prosecution should always be considered while deciding the bail application and in the event of there 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. In the case of Arnab Manorajan (supra), the Apex Court, have also observed that it is the duty of the Courts to ensure that the criminal law does not become a weapon for the selective harassment of the citizens.

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17. In view of the foregoing reasons and considering the factors and parameters, necessary to be considered for adjudication for anticipatory bail under Section 438 of the Cr.P.C, as propounded by the Supreme Court, referred above and without commenting on merits on the case, this Court is of considered view that, the applicant has been interrogated by the Investigating Officer and most of the investigation is completed and he having no any past antecedent of like nature and having roots in the society and is available at the time of further investigation or trial. Therefore, if application is allowed, then no prejudice should be caused to the investigation. Thus, case is made out for anticipatory bail and accordingly, this court is inclined to allow this application. Observations made in this petition, shall not affect the merits of the case in any manner and are strictly confined to the disposal of this application.

18. 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. 111890001210504 of 2021 registered with Halvad Police Station, 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;

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(b) shall remain present at concerned Police Station on 15.02.2022 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;

19. 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

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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.

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

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

(ILESH J. VORA,J) P.S. JOSHI