1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application No. 1812 of 2010 Narendra @ Kalubaba Atmaram Rathod ..VERSUS.. State of Maharashtra, through P.S.O., P.S., Hiwarkhed, Tah. Khamgaon, Dist. Buldhana Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. S..V.Sirpurkar, Advocate for the applicant. Mr. M.J.Khan, A.P.P. for the respondent/State. CORAM : Prasanna B. Varale, J. Order reserved on : 03rd December, 2010. Order pronounced on : 13th December, 2010. Heard. By this application, the applicant is seeking enlargement on bail in Crime No.108/2010, registered with Police Station,Hiwarkhed, Tah. Khamgaon, Dist. Buldhana for the offences punishable under Section 363, 366-A, 376 r/w Sec.34 of Indian Penal Code and under Section 3(1)(xii) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The sum and substance of the allegations levelled against the applicant are that a report was lodged by one Sunita Rameshwar Chavan with the police station, Hiwarkhed on 15/12/2009 stating therein that the victim Laxmi Pawar, who is her niece, was residing with her. The victim told Sunita that one Sindhubai and Chandabai told her that she is entitled to receive benefits of the Government Schemes meant for tribals and they will try to take benefit of these schemes for her. On this false promise, Sindhubai and Chandabai, on 09/12/2009 at about 11.00 a.m. took away victim Laxmi from the house and she did not return on that night. The complainant and her husband took search of the victim in the village and they came to 2 know that the victim was seen at Khamgaon bus stop along with Sindhubai and Chandabai. Mr. Sirpurkar, learned Advocate for the applicant submitted that the applicant is falsely involved in the said crime. He further submitted that in the FIR dated 15/12/2009, there is neither any mention of the applicant nor any role is attributed to him. On 19/12/2009, the statement of victim Laxmibai was recorded wherein she impleaded the applicant and alleged that the applicant committed rape on her. As such offence under Section 376 was added. The applicant was arrested on 25/12/2009 and since then he is in custody. Learned Advocate submitted that the applicant is from Ahmedabad, Gujrat State and he has no concern either with the victim Laxmi or with complainant Smt. Sunita Chavan, who had lodged the report dated 15/12/2009. Learned Advocate for the applicant further submitted that the applicant had approached the Sessions Court, Khamgaon by filing an application under Section 439 of Cr.P.C. for grant of bail along with other accused persons, but the application of the present applicant was rejected, whereas the other accused persons were released on bail. Learned Advocate further submitted that the application of the applicant was rejected only on the ground that the nature of allegation levelled against the applicant is serious. It was observed by the learned Sessions Court while considering the application of the other accused persons that the accused are languishing in jail since last three months, there is no likelihood of disposal of this case within a short time and as such the application of the other accused was allowed. In view of the leave granted by this Court to the applicant by order dated 26/11/2010 to amend the application, the applicant has 3 raised some additional grounds in the present application. Learned Advocate submitted that these grounds were not raised before the Sessions Court, Khamgaon and he is pressing these grounds for the first time before this Court. The said grounds are : a] The allegations against the applicant are only committing offence under Section 376 of I.P.C. and there is no role attributed to the applicant for the offence under Sections 363 and 366 IPC ; & b] In view of Section 177 of Cr.P.C., every offence shall be enqired and tried by the Court within whose jurisdiction it is committed. Learned Advocate for the applicant further submitted that the allegation against the applicant is that he has committed rape on the victim at Ahmedabad and as such Khamgaon Court has no jurisdiction to try the offence under Section 376 IPC and as such the detention of the applicant by Khamgaon Court is illegal. The applicant is in jail for about one year and he is also entitled to be released on bail on the ground of parity. Learned Advocate further submitted that the applicant is labourer and the sole bread winner of the family. He is ready to abide by any conditions imposed upon him by this Court. To substantiate his submissions, learned Advocate for the applicant has placed reliance on the judgment of Punjab and Haryana High Court in the case of Jagan Nath and another ..vs.. State of Haryana, reported in 1983 Cri. L.J. 1574 and submitted that the facts in the present case are similar to the facts of the case in hand. Learned APP has filed reply and strongly opposed the application. Learned APP submitted that the offence committed by the applicant is serious one. The victim/prosecutrix is a tribal girl, who was subjected to sexual assault at the hands of the applicant and as such the applicant is accused of the offence under Section 376 of 4 I.P.C. as well as under Section 3(1)(xii) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Learned APP further submitted that the grounds raised by the applicant before this Court, were also available to him when he approached the Sessions Court, but he failed to do so and at a belated stage, he is raising these grounds for the first time before this Court. Learned APP by inviting my attention to the provisions of Section 184(b) of Cr.P.C., submitted that the applicant is not entitled to take benefit of Section 177 of Cr.P.C. as the offence is in sequence that the victim/prosecutrix was abducted from her place to Ahmedbad and there the applicant committed rape on the victim/prosecutrix. Learned APP further submitted that the applicant is resident of Ahmedabad (Gujrat State) and if he is released on bail, he will not be available with the investigating agency at the time of trial. He, therefore, prayed for rejection of the application. Heard learned Advocates. Perusal of the record, reveals that the initial report was lodged by one Sunita Chavan on 15/12/2009. The main allegations are against one Sindhubai Kawaskar and Chandabai Tawri. The applicant enters on the scene of the offence in view of the statement of victim Laxmi, recorded on 19/12/2009. She has stated in her statement that Sindhubai and Chandabai told her that they will try to see that she gets the benefit of the scheme for the tribals and on such premises, they took the victim to Khamgaon. From Khamgaon, son of Chandabai, namely Deepak joined them, whereas Sindhubai returned back from Khamgaon. The victim along with Chandabai proceeded to Ahmedabad along with her son Deepak. It was told to the victim that they will find a match for her and perform her marriage. They were also giving her threats not to disclose these facts to her relatives. On reaching Ahmedabad, the victim came to know that she was residing in the house of one Rupali. 5 At Ahmedabad, she stayed for five days and on 5th day Deepak and Chandabai left her at Ahmedabad and returned to their place. On that day, the applicant committed rape on her. On next day, she was asked to leave Ahmedabad. One Raju made arrangement for railway journey from Ahmedabad to Malkapur and she reached Malkapur on 13/12/2010. From Malkapur, she came to Khamgaon by taxi. At Khamgaon bus stand, daughter of Chandabai, namely Sonu met her and told her that police arrested her mother Chandabai and further asked her to go to police station and report about the incident. The said statement of victim Laxmi reveals that the applicant, who is brother-in-law of one Rupali at whose house victim was residing at the instance of Chandabai, had visited the residence of Rupali and had a talk with Rupali and her husband. Thereafter, Rupali and her husband left the house. The applicant closed the door and the victim was subjected to rape by the applicant. In view of the material collected by the investigating agency, it reveals that the role of the applicant and allegation in respect of the applicant is about committing rape on victim/prosecutrix at Ahmedabad. It further reveals that the applicant is not alleged to have committed offences under Section 363 & 366-A of I.P.C. In view of these facts, since the offence alleged against the applicant which is committed at Ahmedabad, the submissions of learned Advocate for the applicant are worth considering. It will be useful to refer the relevant observations of the Panjab and Haryana High Court in Jagan Nath’s case on which reliance has been placed by the applicant, particularly para 10, which reads thus : “10. Section 177, Cr.P.C. provides that every offence shall ordinarily be enquired into and tried by a Court within the local limits of whose jurisdiction it was committed. As the offence of rape was committed within the local limits of the 6 jurisdiction of the Courts at Delhi, it could not be enquired into or tried by the Ambala Court. However, there is an exception contained to this general rule in Section 179, Cr.P.C. which reads as under :- “When an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued.” The facts of this case are not covered by Section 179, Cr.P.C. Section 179 applies only when the act is an offence by reason of anything which has been done, and of any consequence which has ensued. But where the act or omission is a complete offence irrespective of any consequence which has ensued, this section would not come into play, and the offence is to be enquired into and tried only by the Court within whose local jurisdiction the act was committed. This section contemplates two things. The first is that the offender has done an act and the second is that a consequence has followed from such act. The offences contemplated under S.179 are those which are not complete till a special consequence has ensued. So, the consequence must be an essential ingredient of the offence. This, however, cannot be predicated of an offence punishable under Section 376, I.P.C. The offence of kidnapping is complete as soon as the person is kidnapped with the requisite guilty intention or knowledge, and the consequence of the kidnapping or abduction does not form an essential part of the offence of kidnapping or abduction under S.363 or 366. This being so under Section 179, the offence of rape committed at Delhi cannot be enquired into or tried by the Courts at Ambala and only the offence of kidnapping could be tried by the Courts at Ambala and the offence of rape had to be tried by the Courts at Delhi.” Apart from the facts stated above, the other factor which reveals from the record is that the investigation is concluded by the investigating agency by submitting the final report. Learned APP has submitted that the victim belongs to “Pardhi” community which is a tribal community and the applicant is 7 involved in the offence punishable under Section 3(1)(xii) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and as such a serious offence is committed by the applicant. Perusal of the final report shows that the applicant belongs to “Walkar” caste, which is Scheduled Caste in the State of Gujrat. It will be useful to refer the vernacular version from the final report : “ujsanz mQZ dkyq vkRekjke jkBksM tkr oydj (xqtjkr ljdkjdMwu vuqlqphr tkrh djhrk ekU;rk fnysyh)”. It is not in dispute that the other accused persons against whom the allegation is levelled of committing offence under Section 366 of I.P.C., are released on bail on the ground that they are languishing in jail from last 3 months. It is not in dispute that the applicant is behind the bars for more than 11 months i.e. from 25/12/2009. I find considerable merit in the submission of learned Advocate for the applicant that it will take some time to commence the trial and conclude the same and keeping the applicant behind the bars for indefinite period, is not less than a pre-trial conviction to him. Considering the material brought by the investigating agency and the fact that the applicant is behind the bars for more than 11 months and there is no likelihood that the trial will commence in near future, I am of the opinion that prima facie case is made out. The apprehension expressed by the investigating agency can be taken care of by putting the applicant on certain conditions. In the result, the application is allowed. The applicant be released on bail on furnishing P.R. bond of Rs.25,000/- (Rupees Twenty Five Thousand only) with one solvent surety in the like amount, on the following conditions. a] The applicant to cooperate with the investigating agency and attend the police station, Hiwarkhed, Tah. Khamgaon, 8 Dist. Buldhana on every 2nd and 4th Sunday between 9.00 a.m. to 12.00 noon, for a period of six months and thereafter as and when called by the police. b] The applicant shall not tamper with the prosecution evidence nor commit any act such as contacting the prosecution witnesses or pressurize them. c] The applicant to submit his residential address and his contact numbers such as phone/mobile numbers to the investigating agency. d] The applicant shall not leave his place of residence without prior intimation to the police station, Hiwarkhed about his visit to other place. In case of breach of these conditions, the prosecution agency to take necessary steps in accordance with the provisions of law. JUDGE Diwale