Dungarsinh Jethsinh Chauhan vs State Of Gujarat
2023 Latest Caselaw 7632 Guj

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     R/CR.MA/18537/2023                              ORDER DATED: 16/10/2023

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        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 18537
                           of 2023
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                          DUNGARSINH JETHSINH CHAUHAN
                                     Versus
                               STATE OF GUJARAT
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Appearance:
MR ARJUNSINGH B CHAUHAN(11510) for the Applicant(s) No. 1
MR HARDIK MEHTA, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                                 Date : 16/10/2023
                                  ORAL ORDER

1. Mr. Darshit Raval, learned advocate submits that he has instructions to appear on behalf of the complainant. He is permitted to file his appearance.

2. RULE. Learned advocates for the respective parties waive service of notice of Rule.

3. By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant accused has prayed to release him on anticipatory bail in the event of his arrest in connection with the FIR being C.R. No.11191047230040 of 2023 with East Mahila Police Station, Ahmedabad for the offences punishable under Sections 376(2)(n), 328 and 506(2) of the Indian Penal Code, 1860.

4. It seems that an anticipatory bail application, being Criminal Misc. Application No.4383 of 2023, was dismissed

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by the learned Sessions Judge in an order dated 01.07.2023. However, the applicant has not annexed a copy of this order. Subsequently, the applicant filed Criminal Misc. Application No.12712 of 2023, which was later withdrawn by the applicant on 19.07.2023, therefore, earlier order of the learned Sessions judge attained the finality. Despite this, the present application has been filed, with the applicant suppressing the aforementioned order passed by the learned Sessions Judge.

5. Learned advocate for the applicant submits that the applicant has nothing to do with the offence and he is falsely implicated in the offence. It is contended that the complainant has filed a false complaint in an attempt to extort money. This is based on WhatsApp chats and certain photographs, as both the applicant and the complainant were involved in a consensual relationship. It is submitted that so far Section 376 of the CrPC is concerned, after perusing the complaint, the aforesaid section does not apply, as there was a consensual sexual relationship between them, and whatever relationship initiated by the applicant was not against the will of the complainant. Even forged and false allegations are being made in an attempt to invoke Section 328 of the Indian Penal Code (IPC). It is submitted that the applicant's case is squarely covered by the judgment passed by the

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Honorable Supreme Court of India in the case of Pramod Suryabhai Pawar vs. State of Maharashtra, decided on 21.08.2019, in Criminal Appeal No.1165 of 2019, and Dr. Dhruvaram Murlidhar vs. State of Maharashtra, decided by the Honorable Supreme Court on 22.11.2018, in Criminal Appeal No.1443 of 2018. Therefore, it is submitted that since the overall case is based on the statement of the complainant, the application is required to be allowed.

5.2 Learned advocate for the applicant, on instructions, states that the applicant is ready and willing to abide by all the conditions including imposition of conditions with regard to powers of Investigating Agency to file an application before the competent Court for his remand. He would further submit that upon filing of such application by the Investigating Agency, the right of applicant accused to oppose such application on merits may be kept open.

6. Learned Additional Public Prosecutor appearing on behalf of the respondent - State has opposed grant of anticipatory bail looking to the nature and gravity of the offence and submitted that the applicant played an active role in the offence. It is submitted that previous applications for anticipatory bail were dismissed, and since there have been no changes in the circumstances of this case, the present application for anticipatory bail is

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being filed.Therefore, the question does not arise to entertain the present application. It is submitted that if we accept the case of the applicant that the there was consensual relationship between them, then what was the need for giving thread to viral the private video and photographs and what was the need to take undue advantage after giving intoxicate drugs to the complainant. In view thereof, it is revealed that the applicant, by threatening to viral the photographs and by administering intoxicate drugs, took advantage of the complainant. It is submitted that the applicant have five serious post antecedents. Therefore, it is submitted that if the applicant is released on bail, there is a possibility of tampering with the evidence, influencing or threatening witnesses. Since the investigation is still at a very preliminary stage, the APP has submitted that the application be rejected.

7. Learned advocate appearing for the original complainant has adopted the submissions made by the learned APP and submitted that the present applicant has committed serious offence by threatening to viral the photographs and by administering stupefying drugs, took advantage of the complainant. Therefore, the application be dismissed.

8. In view of the above, it is equally incumbent upon the

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Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of the Hon'ble Apex Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail. Though at the stage of granting bail an elaborate examination of evidence and detailed reasons touching the merit of the case, which may prejudice the accused, should be avoided. I have considered the following aspects.

9. Having heard the learned advocates for the respective parties and perusing the complaint, It prima facie appears that the present applicant is facing charges under Sections 376(2)(n), 328, and 506(2) of the IPC. It also appears that by administering an intoxicate drug to the complainant, the applicant took advantage of her

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vulnerable state. Furthermore, the applicant threatened to viral the complainant's photographs and thereafter made relationship against the will of the complainant.

10. It is evident from the documents on record that the present applicant has past criminal antecedents. This is not a case which is filed with a view to tarnish the applicant's image, as the applicant himself has admitted to having a relationship with the complainant. Consequently, he cannot claim that he has been falsely implicated in this case. Regarding the applicant's claim of a consensual relationship, the consent itself is in dispute and it remains a question of evidence. Even if for the sake of argument said fact is accepted, then such relation, if was in past, it cannot take for granted always.

11. Despite the dismissal of earlier bail applications, the applicant has filed this subsequent anticipatory bail application without any change in the circumstances of this case. In this regard, reference needs to be made to the judgment of the Hon'ble Supreme Court in the case of G.R. Ananda Babu vs The State of Tamil Nadu, reported in 2021 SCC Online SC 176.

12. On the contrary, under Section 164 of the CrPC, a statement has been recorded, prima facie indicating the involvement of the present applicant.

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13. Regarding the reliance placed by the learned advocate for the applicant on the case of Pramod Suryabhai Pawar(supra), it is needless to say that the facts of the said case is are quite different, which was about misunderstandings and promises of marriage. However, in the present case, the applicant is facing charges under Section 328 of the IPC also, and case of making viral the photographs. So far the case of Dr. Dhruvaram Murlidhar (supra) is concerned, there was a threat from the complainant to blackmail the doctor, which differs significantly from the present case. Therefore, the facts in this case are distinct. Hence, in case on hand the case of prosecution is that the applicant has taken undue advantage by administering stupefying drug made physical relations and then taken undue advantage under the threat to viral private photographs and video. Even, the applicant having criminal antecedents.

14. In the case of Siddharam Satlingappa Mhetre vs State Of Maharashtra, reported in (2011) 1 SCC 694, the Hon'ble Court held that life and personal liberty are the most prized possessions of an individual but not at the cost of larger interest of society and public. This is not a case, wherein accused is falsely enroped in the offence with a view to tarnish his image. Additionally, reference

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needs to be made to the judgment of the Honorable Supreme Court in the case of Kalyan Chandra Sarkar vs Rajesh Ranjan @ Pappu Yadav & Anr, reported in 2005 3 GLH 601. Considering the aforesaid fact, custodial interrogation is required. In the case of Jai Prakash Singh V/s State of Bihar and another, reported in (2012) 4 SCC 379, the Hon'ble Supreme Court was pleased to hold:

"Parameters for grant of anticipatory bail in a serious offenceare required to be satisfied and further while granting such relief, the court must record the reasons therefore. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty."

15. In view of the decision of Hon'ble Apex Court in the cases of (i) State Rep. By the CBI vs. Anil Sharma, reported in 1997(7) SCC 187, (ii) Adri Dharan Das vs. State of W.B., reported in 2005(4) SCC 303 and (iii) P. Chidambaram vs. Directorate of Enforcement, reported in AIR 2019 SC 4198, wherein the Hon'ble Apex Court has held that:

"The legislative intent behind the introduction of Section 438 Cr.P.C. is to safeguard the individual's personal liberty and to protect him from the possibility of being humiliated and from being subjected to unnecessary police custody. However, the court must also keep in view that a criminal offence is not just an offence against an individual,

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rather the larger societal interest is at stake.

Therefore, a delicate balance is required to be established between the two rights - safeguarding the personal liberty of an individual and the societal interest.

Ordinarily, arrest is a part of procedure of the investigation to secure not only the presence of the accused but several other purposes.There may be circumstances in which the accused may provide information leading to discovery of material facts and relevant information. Grant of anticipatory bail may hamper the investigation. frustrate the investigating agency in interrogating the accused and in collecting the useful information and also the materials which might have been concealed. Success in such interrogation would elude if the accused knows that he is protected by the order of the court. Grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation.Pre-arrest bail is to strike a balance between the individual's right to personal freedom and the right of the investigating agency to interrogate the accused as to the material so far collected and to collect more information which may lead to recovery of relevant information. It cannot be said that refusal to grant anticipatory bail would amount to denial of the rights conferred upon the appellant under Article 21 of the Constitution of India.

Consequently, Power under Section 438 Cr.P.C. being an extraordinary remedy, has to be exercised sparingly; more so, in cases of economic offences. Economic offences stand as a different class as they affect the economic fabric of the society. 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 fleeing justice and other factors to decide whether it is a fit case for grant of anticipatory bail. Grant of

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anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the court must be circumspect while exercising such power for grant of anticipatory bail. Section 438 CrPC is to be invoked only in exceptional cases where the case alleged is frivolous or groundless. Anticipatory bail is not to be granted as a matter of rule and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy.

Having regard to nature of allegations and stage of investigations, held investigating agency must be given sufficient freedom in process of investigation. Appellant not entitled to anticipatory bail as the same would hamper the investigation.

16. In the case of Pratibha Manchanda vs The State of Haryana, reported in AIR 2023 SC 3307, wherein the Hon'ble Apex Court has held in Para 19 as under:

19. The relief of Anticipatory Bail is aimed at safeguarding individual rights. While it serves as a crucial tool to prevent the misuse of the power of arrest and protects innocent individuals from harassment, it also presents challenges in maintaining a delicate balance between individual rights and the interests of justice.

The tight rope we must walk lies in striking a balance between safeguarding individual rights and protecting public interest. While the right to liberty and presumption of innocence are vital, the court must also consider the gravity of the offence, the impact on society, and the need for a fair and free investigation. The court's discretion in weighing these interests in the facts and circumstances of each individual case becomes crucial to ensure a just outcome."

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17. In view of the above, this Court is of the considered opinion that if the present applicant is released on bail, he could potentially obstruct the ongoing investigation. Prima facie, involvement of the accused in offene is noticed. Therefore, for a thorough and qualitative investigation, custodial interrogation is deemed necessary. Hence, this Court is not inclined to entertain the present application. Hence, the application stands dismissed. Rule discharged.

(HASMUKH D. SUTHAR,J) ALI