abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 203 OF 2008 Ravi Krishna Naidu .. Applicant V/s The State of Maharashtra & Anr. .. Respondents Mr.A.P. Mundargi i/b Mr.S.P. Hulyalkar for the applicant. Mr.K.V. Saste, A.P.P. for the State. Mr.S.D. Rupwate for the original complainant. CORAM : D.G. KARNIK, J. DATE : 1ST FEBRUARY 2008 P.C. P.C. P.C. : 1. Heard the learned counsel for the applicant and the learned A.P.P. for the State. I have also granted leave to the counsel for the complainant to appear in the matter and heard him. 2. The applicant seeks pre-arrest bail under section 438 of the Code of Criminal Procedure in connection with an offence registered with Wanwadi - 2 - Police Station, Pune under C.R. No.559/2007 for the alleged offence punishable under sections 341, 363, 366A, 354, 376, 506 read with 34 of the Indian Penal Code. 3. The previous application of the applicant (Bail Application No.3933 of 2007) has been rejected by the Adhoc Additional Sessions Judge No.7, Pune vide order dated 17th January 2008. The applicant has therefore approached this court for grant of bail. 4. The complainant is a young girl though admittedly above 16 years of age. On 25th December 2007, the complainant lodged a First Information Report (FIR) with Wanwadi Police Station, Pune alleging the offence. According to the complainant, on 30th March 2007, she was taken to the farm house of the applicant at Sopanbag, Ghodpadi, Pune by her maternal uncle. The purpose of visit was that the complainant was previously told by the applicant that she would be given a role of an actress in a cinema. The applicant took her to the first floor under the pretext of a screen test. There, the complainant was raped against her wish by the applicant while her maternal uncle was sitting on the ground floor. The complainant then came on the ground floor and narrated the incident to her uncle who told - 3 - her not to complain and not to disclose the incident even to her mother. On the next day, the complainant accompanied the applicant to his flat in Vinit Tower Society, Juhu, Mumbai. The applicant returned from work at 8.30 p.m. and took the complainant for dinner in a hotel "Taba" at Juhu Link Road. After they returned home, the complainant slept in the room of the applicant where she was again raped. In the similar manner she was raped for 4 days during day and night on 7-8 occasions. The FIR is silent what happened between first week of April 2007 and the last week of July 2007. In the FIR, the complainant then stated that on 28th July 2007, she and the applicant went to Hyderabad and stayed in a bungalow of Rishi at Road No.12, Opp. the house of Ram Gopal Verma. The air ticket for travel to Hyderabad was purchased showing the name of the complainant as Rekha Ravi Naidu, i.e. wife of the applicant. It is alleged that even at Hyderabad, she was subjected to forcible intercourse. In the FIR, the complainant has further alleged that after they returned to Mumbai, in the first week of August 2007 some other persons also attempted to act fresh with her but she resisted. The complainant has stated that she then stayed together with the applicant till the conclusion of the Ganpati festival (September 2007) and during that time also, the applicant had forcible intercourse with - 4 - her on several occasions. In the last paragraph of the FIR, the complainant has alleged that the applicant had intercourse with her by deceiving her that she would be given a role of an actress in a cinema. 5. Bare perusal of the complaint would disclose that the complainant has alleged that the applicant had intercourse with her on several occasions between 30th March 2007 and the end of September 2007. The complainant was promised a role in the cinema. Though the complainant has not specifically stated that she gave consent for the intercourse on account of false promise of a role in a cinema but has stated that each time the intercourse was against her wish, the fact remains that the complainant never complained about the alleged forcible intercourse either to the police or to anybody else except once to her maternal uncle. The FIR does not disclose that the complainant was detained against her wish; she was openly going with the applicant at public places and even to different cities. She was given several presents including a mobile telephone by the applicant. The FIR prima facie shows that the intercourse on each occasion was with the consent of the complainant and it appears that the complaint has been made only after the complainant was not given a role as an actress in the cinema as was - 5 - allegedly promised to her. Whether there was any such promise and whether the consent for intercourse was obtained under a false promise is a question of fact which can be decided only at the trial. I am prima facie of the opinion that this does not appear to be a case of intercourse without consent. 6. Learned counsel for the complainant submitted that this is not a fit case for grant of pre-arrest bail as custodial investigation is necessary into the alleged offences committed in different cities, viz. Mumbai, Pune and Hyderabad. He relied upon a decision of the Supreme Court in C.B.I. v. Anil Sharma, reported in (1997) 7 SCC 187, wherein it is observed thus:- "6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disintering many useful information and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that - 6 - he is well protected and insulated by a pre arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disintering offences would not conduct themselves as offenders." The above observation has also been referred to by a learned Single Judge of this Court in his decision in State of Maharashtra v. Ananda Tukaram Akale, reported in 2008 ALL MR (Cri.) 1. 7. It is true that the custodial interrogation is often necessary as it may be qualitatively different from the interrogation carried out when the person is armed with an order of anticipatory bail in his pocket. Custodial interrogation would be necessary if the allegation of the complainant is to be believed that the - 7 - intercourse was without consent. Here, as I have stated, the intercourse appears to be with the consent of the complainant. The only question is whether the consent was obtained under the false promise as alleged by the complainant. In the circumstances, it cannot be said that the case is such that custodial interrogation of the complainant would result into collection of qualitatively different evidence. Hence, in my view, the custodial interrogation is not necessary in the present case. 8. There is one more aspect that there is considerable delay in lodging of the FIR. The first offence, according to the complainant, took place on 30th March 2007. The incident was immediately narrated by her to the maternal uncle. Thus, the complainant was not helpless girl without any aid at that point of time. The incident could have been reported to the police immediately thereafter. Even there were several occasions when the complainant could have reported to the police. The applicant had provided a mobile phone to the complainant. She was also taken out at public places and she had an ample opportunity of complaining and yet she did not complain to anyone nor did she lodge a FIR. - 8 - 9. I am aware that ordinarily the orders in matters of bail are to be short. However, the learned Sessions Judge, while rejecting the application for anticipatory bail, has elaborately considered the facts and material on record. Further more, learned counsel for the complainant took me through several passages from the FIR and it would be therefore inappropriate not to refer to the matters to which my attention was drawn not only by the A.P.P. but also by the learned counsel for the complainant. It is however clarified that the observations made in this order are only prima facie and the Sessions Court, at the time of trial, should not take them into consideration. With these clarification, I pass the following order: ORDER ORDER ORDER In the event of the arrest of the applicant in connection with the crime registered with Wanwadi Police Station, Pune under C.R. No.559/2007, he shall be released on bail on executing personal bond of Rs.50,000/- together with two sureties of the like amount subject to the following conditions:- (a) The applicant shall not make any contact with the complainant nor shall he make any inducement or - 9 - threats to the complainant or to any of the prosecution witnesses. (b) The applicant shall cooperate with the investigation and attend the concerned police station initially once a week on every Monday between 10.00 a.m. and 12.00 noon for a period of 8 weeks and shall thereafter attend the concerned police station once a month between 1st and 5th of every British calendar month till the filing of the charge sheet. The applicant shall also attend the concerned police station as and when specifically summoned by the police. (c) This order shall come to an end after the charge sheet is filed whereupon the applicant may apply for regular bail before the regular court. (D.G. KARNIK, J.)