Rajasthan High Court

Rahul Katara S/O Shri Vishnu Kumar vs State Of Rajasthan on 16 March, 2022

Bench: Farjand Ali

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

  S.B. Criminal Miscellaneous Bail Application No. 20783/2021

Rahul Katara S/o Shri Vishnu Kumar, R/o 150 Belara Kalan
Babula At Present Lower Division Clerk A.c.b. Court Bharatpur
(At Present Accused Petitioner Confined In Dist. Jail Bharatpur)
                                                                  ----Petitioner
                                   Versus
State Of Rajasthan, Through Pp
                                                                ----Respondent

Connected With S.B. Criminal Miscellaneous Bail Application No. 20845/2021 Anshul Soni S/o Ravi Kumar Soni, R/o Gudri Mohalla Sunar Gali, Police Station Kumher, Tehsil Kumher, District Bharatpur (Raj.) The Then Clerk Grade II Family Court No. 2, Bharatpur Presently Suspended. ( At Present Confined In Central Jail Sewar, Bharatpur)

----Petitioner Versus State Of Rajasthan, Through P.p.

----Respondent S.B. Criminal Miscellaneous Bail Application No. 3583/2022 Jitendra Singh Guliya S/o Shri Gopichand Guliya, Aged About 52 Years, R/o Venus Apartment Plot No. 43, Sector 9, Rohini, Delhi 85 Formerly Posted As Special Judge Prevention Of Corruption Act Cased Bharatpur Under Suspension With Headquarter At District And Sessions Judge, Metro-I, Jaipur ( At Present Lodged At Central Jail, Sewar, Bharatpur)

----Petitioner Versus State Of Rajasthan, Through P.p.

                                                                ----Respondent


For Petitioner(s)        :     Mr.Anil Kumar Upman
                               Mr.Rajneesh Gupta
                               Mr.S.S.Hora with Mr.Tarachand
                               Sharma




                                       (2 of 16)                    [CRLMB-20783/2021]


For Respondent(s)           :     Mr.S.K.Mahala, PP
                                  Mr.K.S.Faujdar



                HON'BLE MR. JUSTICE FARJAND ALI

                            Judgment / Order

16/03/2022

The instant bail application(s) have been preferred on behalf

of the accused petitioner(s) Rahul Katara S/o Shri Vishnu Kumar,

Anshul Soni S/o Ravi Kumar Soni and Jitendra Singh Guliya S/o

Shri Gopichand Guliya, who are in custody in connection with

F.I.R. No. 873/2021 registered at Police Station, Mathura Gate

District Bharatpur, for the offences punishable under section

377/34 of I.P.C. and 5/6 of P.O.C.S.O. ACT.

All three applications have been moved separately bearing

bail applications nos. 20783/2021, 20845/2021 and 3583/2022

respectively. Since all the matters are emanating from the same

F.I.R. and were tagged together therefore, it is deemed

appropriate to decided all the application(s) filed herewith,

through a common order with the consent of the parties.

Bereft of elaborate details, the facts necessary for the

adjudication of the bail application(s) are that, on 31.01.2021 at

about 18.04 hours the aforesaid FIR came to be registered at the

behest of the complainant Pinky Singh, who happens to be the

Mother of the child victim "H", wherein she alleges that her minor

child "H" aged about 14 years, used to play tennis at District club

Company where he came into contact with accused Jitendra Guliya

who also used to come there for playing tennis. The accused

(3 of 16) [CRLMB-20783/2021]

Jitendra Guliya established good acquaintance with her son and

coaxed her minor child to accompany him at his residence where

he made her son drink cold drink containing some intoxicating

substance and thereafter, he removed his clothes and sexually

abused him by committing unnatural sex with him.

In the complaint it is alleged that the accused Jitendra Singh

had videographed the incident and also threatened her minor son

to face dire consequences, if he tells anyone. As per F.I.R, on 28.

10.2021 at about 4 P.M. at the time when the accused came to

drop complainant's son at her house, she saw accused Jitendra

Singh kissing her son on his lips in the car; noticing the fact that

they were seen by her; the accused left the place immediately. It

was after serious persuasion made by the complainant, that her

son had narrated the entire incident as to how he was being

subjected to sexual abuse by the accused persons Jitendra Singh

Guliya, Rahul Katara and Anshul Soni, since a month.

Furthermore, as alleged that on 29.10.2021, the

complainant did not allow her son to go to play at club, whereupon

all the aforesaid three accused along with one police officer P.L

Yadav came at her residence and while threatening her all the

accused persons had said to allow her son "H" to accompany

accused Jitendra Singh Guliya for her good, otherwise she would

have to face dire consequences. The complainant alleged that on

the same day in the night accused Jitendra Singh had made a

phone call to her; where, it was alleged that he was threatening

her however, when she made him know that she was aware of

everything about him and after hearing the same, the call was

(4 of 16) [CRLMB-20783/2021]

disconnected by the accused. It was asserted by the complainant

that, on 30.10.2021 accused persons had admitted their guilt and

asked her to forgive them for their wrongful act and further

assured that they will not repeat the same in future. And later, it

was stated in the F.I.R. that all the accused persons along with

the aid of a Police officer P.L. Yadav, conspired to frame the

complainant in a false case of extortion.

At the outset, learned counsel for the petitioner submits that

the accused/petitioner Jitendra Singh Guliya is an officer of higher

judiciary, who has an untainted and impeccable record and

reputation across all corridors of society. The accused has just

been roped falsely in this case. It is submitted that the petitioner

had been posted as a Special Judge ACB Cases, District Bharatpur

in August 2020. That owing to the shutting down of gym, the

petitioner started playing tennis at the club, where he came across

with alleged child victim "H" who along with his elder brother "K"

came there to play tennis. The child "H" interacted with the

petitioner and told him that his father is no more and things are

being managed by his mother alone, and looking to his talent and

other challenging factors, the petitioner showed his benevolence

and told him to share anything which he wants or if he could do

anything constructive or otherwise manage something for him.

It is submitted by the learned counsel for the petitioner that

the as per the allegation on 28.10.2021, the complainant saw her

son being kissed by the petitioner in the car and thereafter, on

the very same day the entire incident came into the notice of the

complainant still the FIR came to be lodged by her after inordinate

(5 of 16) [CRLMB-20783/2021]

delay as the same got lodged on 31.10.2021 at 18.04 PM until, a

case of extortion came to be registered. Well on the contrary, the

statements of the complainant as well as of the alleged child

victim "H" reveals that no such retaliation or confrontation was

made on the phone call with the petitioner regarding the factum of

unnatural sexual acts committed by the petitioner with her son till

29.10.2021 the scooty incident took place, which in fact is against

the normal human conduct. This fact was further corroborated in

the statements of complainant's elder son "K", who had stated in

his statements recorded under Section 161 Cr.P.C. that before

29.10.2021 he was not known to such incident neither his brother

had told him about such incident, it was for the first time his

mother had told him about the incident on that very day. It is

notable that every day both the brothers used to go to play in

ground together, there's not a single incidence where the victim

went alone.

Learned counsel referred to the statements of elder brother

"K" which are very relevant as his younger brother had never

complained that the petitioner ill treated or he observed any

unnatural conduct on his part towards him rather he fortified that

they took Rs.20,000/- as loan for Scooty from the petitioner

Jitendra.

The statements of "K" the brother of the victim, assert that it

was on 30.10.2021 that his mother; for the first time had told

Rahul Katara that petitioner Jitendra Singh had sexually abused

her child "H". It was further argued by the counsel for the

petitioner that nothing came on the record which suggests that as

to how, both Anshul and Rahul had knowledge of the sexual act of

(6 of 16) [CRLMB-20783/2021]

Jitendra Singh with the Child Victim and upon the strength of the

same he also was subjected to the same act on 21st and 22nd

October, which makes the story of the complainant highly

improbable. The allegation that both the accused Rahul & Anshul

told the victim to allow them too the same sexual act which their

officer used to commit seems to be absurd in view of the fact that

nowhere it has come on record as to how Rahul and Anshul came

to know about the alleged sexual act. Rahul and Anshul are

judicial clerks of the court and are not resident of the same

locality. The Court campus and residences are also not in the same

vicinity. The three employees deployed at the residence of the

petitioner Jitendra clearly state that those two clerks did visit the

residence only once in a while for judicial work only or to supply a

document.

Learned counsel for the petitioners meticulously points out

that nothing has come in the medical examination report of the

alleged child victim which goes on to suggest that the alleged

sexual act was committed; no injury marks were found on the

body part of the child which definitely negates entirely cooked up

story of the complainant. More so, no alleged video came to be

found in the investigation, no obscene material has been detected

from the mobile of the accused which was seized by the Police,

now charge-sheet has been filed.

It is further pointed out by the learned counsel(s) that

complainant asserted specific allegation against all the

petitioner(s) Jitendra Singh, Rahul Katara and Anshul Soni in the

FIR; in her statements as recorded under section 161 of CRPC,

(7 of 16) [CRLMB-20783/2021]

she omitted the names of Anshul Soni and Rahul Katara; and

further in her statement recorded under section 164 of CRPC,

allegations were made against Jitendra Singh and Anshul Soni

only and she omitted the name of Rahul Katara. Such major

discrepancy in the FIR and later developments made in 161 and

164 statements, as recorded during the course of the

investigation, creates serious doubts and strikes over the

credibility of the same. As per learned counsels, the stand of the

complainant is not firm even at the initial stage.

It is fervently urged that in FIR it is alleged that a Police

Officer alongwith all three accused came to the house of the

complainant and pressurized her to send her son with the

petitioner Jitendra otherwise be ready for the dire consequences.

This allegation has been found false by the investigating agency

and thus the police officer P.L. Yadav has been exonerated from

the charges. Prima facie, it appears to be highly preposterous and

against ordinary human conduct that how in broad daylight such

assertion can be made in presence of public. Although the

principle of "falsus in uno, falsus in omnibus" is not adopted in

Indian Criminal Jurisprudence, yet while hearing a bail plea to

some extent it can be taken into account.

Learned counsel further submits that the entire story has

been framed falsely by the complainant as no independent witness

had supported the allegation made regarding sexual abuse; as a

matter of fact, no one, even in the neighbourhood of the

complainant, had supported the complainant's version of act of

kissing her minor child in the car by the accused Jitendra Singh on

(8 of 16) [CRLMB-20783/2021]

28.10.2021. It is argued that the incident of kiss in the car was

seen by the complainant at 4 PM as mentioned in the FIR and later

the developments were also made by her whereby the time came

to be changed to around 7 PM.

At this juncture, the learned counsel appearing on behalf of

petitioner(s) submits that, in the FIR all the three accused

allegedly sexually abused the minor Child "H" at the residence of

the petitioner Jitendra Singh but except for the bald allegation and

statements made by the alleged child victim "H" as well as his

complainant mother, nothing came upfront during the

investigation materially in the form of evidence where one could

safely infer the commission of such act. The learned counsel for

the petitioner(s) referred to the Statements of Brijkishore,

Ghanshyam and Narendra recorded under section 161 CRPC who

totally deny that any such act took place at the residence. These

three witnesses were supposed to be present all the time at the

residence of petitioner Jitendra. At this stage of bail; their

statement can be considered.

It is submitted by the counsel(s) that, the allegation made in

the FIR, against the other two people Rahul Katara and Anshul

Soni are highly improbable rather inconsistent, as complainant in

her 161 statements alleges nothing against both of them in

respect of any sexual act with her son. Later in 164 Statements,

she only names Jitendra Singh and Anshul Soni for committing

such unnatural act with her son, which creates serious doubts in

respect of the alleged incident. The FIR came to be lodged on a

(9 of 16) [CRLMB-20783/2021]

typed report duly signed by the complainant which was given on

the 4th day of the incident.

Learned counsel drew attention towards the statement of

one Prempal, an independent witness, who stated that he received

a call from Rahul Katara on 31.10.2021, same day before lodging

of the FIR, where he sought help that complainant is levelling

allegation against all three of us for sexual abuse on her son, but

the issue is only with regard to scooty and one person is seeking

money on account of settling the dispute. This witness clearly

says that he was informed that a man from complainant side was

demanding huge amount lest serious case would be registered

against the petitioner.

It was argued that the serious contradiction and wilful

omission in the statements of the child victim, complainant, her

elder son and other independent witnesses had made the story of

the complainant highly inconsistent and absurd with the others

with regard to the alleged incident, time, persons and knowledge.

Thus, it was jointly prayed that all the petitioners may kindly be

released on bail.

On the contrary, the learned public prosecutor as well as

counsel for the complainant fervently and vehemently opposed the

bail application of the petitioners upon the ground that the

offences are of a serious nature and the statements made under

161 and 164 of CRPC, are very much consistent with each other

along with the other material on record, therefore, the accused

(10 of 16) [CRLMB-20783/2021]

petitioners shall not be released on bail and the same deserved to

be dismissed.

Heard learned counsel(s) for the petitioner(s), as well the

respondent State and counsel appearing on behalf of the

complainant, perused the order so assailed, and other material

made available on record.

This court is well conscious of factum of the case as well as

the gravity of the offences as alleged against the accused

petitioners. Needless to say that every citizen of this country is

abided and governed by Rule of Law and one has to follow it as no

one is above the Law, as in fact no one can. The instant case has

its own peculiar strings which contain some unusual tone and this

court wants to dwell upon the issues warranting and appropriate

only to an extent of hearing and adjudication of the bail

applications.

The allegations have been levelled against a Sitting Judge as

well as against the ministerial staff of his Court, for committing

unnatural sexual act on a minor boy Child "H". The nature of

allegations itself warrants a critical and factual scrutiny of the

facts so alleged.

I have meticulously went through the entire chargesheet

available on record and also taken into consideration various

circumstances under which developments took place from lodging

of the FIR till filing of the chargesheet. In the present case,

despite having knowledge of the alleged act on 28.10.2021 itself,

(11 of 16) [CRLMB-20783/2021]

the FIR came to be lodged by the complainant with considerable

delay of 3 days without a reasonable explanation as the same

came to be lodged on 31.10.2021 at about 16.04 hours, which

goes on to hit the roots of the case; further the unnatural conduct

of phone call conversation between the petitioners and the

complainant, after having known the factum of sexual assault over

her son, which not only creates serious doubts over the case of

the prosecution but also makes it improbable in the given

circumstances.

As per the counsel for the petitioner(s), it is argued that the

entire story of the case revolves around the transfer of scooty to

the petitioner Jitendra Singh, while drawing the attention of this

court towards various independent statements of the witnesses.

Upon perusal of the same, it seems that the entire episode

created on 29. 10.2021, for signing of transfer papers of scooty,

was given more importance in preceding days instead of getting

the report lodged for the alleged act, which some how dents the

complainant's story. In line of consideration, the statement of

complainant's elder Son "K" is relevant as in his statements he too

was not aware of the incident which happened with his younger

brother. He further fortifies that a loan of Rs. 20,000/- was given

by the accused Jitendra Singh to his mother who had given

guarantee for the scooty.

Another vital aspect came into consideration before this

court that, FIR was lodged against all three accused where specific

allegations regarding sexual act was fastened. But the statements

recorded under section 161 and 164 of CRPC spill out some

different story with respect to petitioner Anshul Soni and Rahul

(12 of 16) [CRLMB-20783/2021]

Katara, whereby the complainant as well as the child victim "H"

absolves the name of Rahul Katara which is quite strange.

Numerous developments and contradictions are lying on the

record which create serious suspicion. In totality, implication of

Anshul Soni and Rahul Katara as accused somehow lands the story

of prosecution in shadow, as no independent witnesses like

security guard and personnel at the residence of accused

petitioner, as argued by the counsel for the petitioners, fortified

such factum of unnatural sexual act. Had it been a case of

allegation of like nature against the petitioner Jitendra only who

happened to be judicial officer, the consideration of this Court

might be altogether different.

Another aspect of this case which persuaded this Court

would be the exoneration of DSP P.L. Yadav against whom serious

aspersions were made but the investigating agency absolved him

from the allegations and the final report has not been challenged

by the complainant party and no order is there under Section

190/193 of the Cr.P.C. Thus, the complainant has been belied to

this extent.

It is well-nigh settled that the provisions of bail are neither

punitive nor preventive in nature. Graver the offence is alleged

greater the standard of proof is required; The gravity of the

offence or the severity of punishment alone is not a factor to be

considered while adjudicating the bail plea. There are several

other aspects which are required to be considered simultaneously

with the gravity of nature i.e. if there is any apprehension that if

the accused will be released on bail, he would hamper the

(13 of 16) [CRLMB-20783/2021]

prosecution evidence or would flee from justice or would not be

readily available for the trial or otherwise hamper the course of

smooth trial.

The Hon'ble Apex court in Sanjay Chandra vs CBI, (2012)

1 SCC 40, also opined that:

"25. .....The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required".

"14. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, 'necessity' is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any

(14 of 16) [CRLMB-20783/2021]

circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson".

It is well settled that the pre-conviction detention is not

warranted by law. The primary principle of criminal law is that an

imprisonment may follow after a judgment of guilt, but should not

precede it. There is also another principle which makes it

desirable to ensure that the accused is present to receive his

sentence in the event of being found guilty. Further, the object of

keeping the person in custody is to ensure his availability to face

the trial and to receive the sentence that may be passed. In the

case in hand neither any apprehension has been shown by the

counsel for the respondent nor any material has been made

available from which an inference can be drawn regarding the

aforesaid apprehension. The seriousness of the allegations or the

availability of the material in respect thereof are not the only

considerations for declining the bail. The case in which the

petitioner is seeking bail is exclusively triable by the Special Court

POCSO Cases.

The Hon'ble Supreme court, in the case of State of Kerala

Vs. Raneef, 2011 1 SCC 784, has held as under:-

"15. In deciding bail applications an important factor which should certainly be taken into consideration by the court is the delay in

(15 of 16) [CRLMB-20783/2021]

concluding the trial. Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody? Is Article 21 of the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case? Of course this is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail. In the present case the respondent has already spent 66 days in custody (as stated in Para 2 of his counter-affidavit), and we see no reason why he should be denied bail. A doctor incarcerated for a long period may end up like Dr. Manette in Charles Dicken's novel A Tale of Two Cities, who forgot his profession and even his name in the Bastille."

All the accused persons are government servants out of

which one is a Judicial officer and if the pre-conviction detention

does not lead to conviction then compensation for such detention

whereby tarnishing the reputation of an individual holding a

Judicial post will never be compensated. Thus, the detention is

not supposed to be punitive or preventive; and for the reasons as

noted above this court is of the considered view that since the

accused is languishing in judicial custody, his further incarceration

would not serve any fruitful purpose. Thus, this court deems it

appropriate to enlarge the petitioner on bail.

This order relates to criminal prosecution only; as far as the

concern of maintaining judicial discipline, morality or colourable