1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR Criminal Application No. 670 of 2008 AND Criminal Application No. 805 of 2008 [A] Criminal Application No. 670 of 2008 : Ganesh son of Wamanrao Pathak, aged about 59 years, occupation – Lawyer, resident of Jatharpeth, Akola. .... Applicant. Versus The State of Maharashtra, through Police Station Officer, Police Station, Ramdaspeth, Akola. .... Respondent. ***** Mr. S.V. Sirpurkar, Advocate for the Applicant. Mr. T.A. Mirza, Additional Public Prosecutor for Respondent-State. ***** [B] Criminal Application No. 805 of 2008 : Mohan Haridas Nagalkar, aged about 56 years, occupation – Service [Chief Officer, Municipal Council, Daryapur], resident of Daryapur, Tq. Daryapur, Distt. Amravati. .... Applicant. Versus 2 The State of Maharashtra, through Police Station Officer, Police Station, Ramdaspeth, Akola. .... Respondent. ***** Ms. N.S. Jog, Advocate for the Applicant. Mr. T.A. Mirza, Additional Public Prosecutor for Respondent-State. ***** CORAM : A.H.JOSHI, J. Reserved on : 27th March,2008. Pronounced on : th March,2008. O R D E R : 1. Heard. Criminal Application No. 670/08 [Ganesh Pathak] : 2. This is an application for anticipatory bail filed in this Court on 18th February, 2008. 3. The applicant claims that he apprehends arrest furtherance to the First Information Report No. 16/08 dated 12th February, 2008, registered by Ramdaspeth Police Station, Akola, for offences under Sections 120 [B], 376, 363, 365, 342, 307, 323 and 506 of Indian Penal Code, read with Sections 3,4,5 and 6 of the Immoral Traffic [Prevention] 3 Act, 1956. 4. The Applicant further claims that :- He is a practising Advocate and enjoys reputation. He has worked on the posts of Asstt. Govt. Pleader, then District Govt. Pleader, and at present too, is working as a Special Counsel for the Government in certain important cases, and is a successful lawyer. He is conducting various important prosecution cases. He is having a family. He is aged 59 years, has children and grand-children, and has high reputation in the society. He is still working as a Special Prosecutor/Counsel in various matters in Akola District. 5. According to the applicant, Ruby alias Urvashi Rajendra Thada has lodged First Information Report against Nitu Takwat, alleging commission of various offences, such as driving the complainant to immoral traffic, forcing her to prostitution, assault, attempt to pour kerosene on her person, wrongful confinement etc. She has named various persons who were involved in sexual relations with her, and she has further alleged rape on her by various persons. 6. According to the applicant, the complaint made against him is false. He has been falsely implicated because 4 many persons had grudge against him, as he has worked as a Prosecutor in many high profile matters. 7. At the first hearing itself, the applicant sought liberty of this Court to produce additional documents, such as newspapers and copy of affidavit sworn by the applicant. These documents were filed praying that those are relevant in order to demonstrate that it is a case where the complainant had initially gone to the press, has been helped to swear an affidavit of whatever she wants to say, then has held a press conference and thereafter filed First Information Report. 8. The applicant urges that the story of rape is afterthought and is raised at the time of lodging FIR and was not a part of complainant's version when she went to press based on her affidavit etc. Criminal Application No. 805/08 [Mohan Nagalkar]: 9. According to this applicant :- He is in Government service. At present, he is working as Chief Officer, Municipal Council, Daryapur, District-Amravati. In the past, he has worked as Chief 5 Officer, Municipal Councils, Balapur, Chikhaldara, Karanja, Murtizapur, Warud, Risod, Washim etc., as a District Project Officer at Collectorate, Akola, and as Assistant Commissioner of Municipal Corporation, Akola,. 10. According to this applicant, while serving as Assistant Commissioner, Municipal Corporation, Akola, he has done extensive work and in particular, he was involved in demolition of certain structure of the owner of the Daily Newspaper - “Deshonnati”. He claims that Mr. Raut of Deshonnati has an axe to grind against him. 11. According to the applicant, he has no occasion to see the complainant and even he claimed that he does not known Nitu Takwat. He claimed that the alleged incident of 31st December, 2006 is false and he claims alibi, as he says that he was actually participating in the function held by Susneha Ekta Mitra Mandal, Gawande Layout, Khamla Ring Road, Nagpur. Applicant claims to be an innocent person and as he has falsely been involved in the offences, his reputation is at stake, and except due to personal animus of the journalist, there is no cause as to why he should be involved in the offences. 6 12. This applicant also reiterates the allegations of his being innocent, falsely involved and the plea of rape being an afterthought etc. Prosecution Case 13. Both these applications are opposed by filing separate affidavits and then additional affidavit. The applicants have also filed short rejoinders. 14. According to the prosecution, it is a case of sex scandal, commission of rape by the present applicant on 13th or 15th May, 2007 and some-time prior to December, 2007 and commission of various other offences. 15. The learned Additional Public Prosecutor has also placed on record, for perusal of this Court, copies of certain notes of Case Diary where statements of various witnesses have been recorded. 16. On perusal of these documents, it is seen that one witness, who is the owner of a taxi business, indirectly suggests some complicity between the applicant-Ganesh Pathak and the victim and some indecent behaviour. 17. In so far as involvement of the applicant-Ganesh 7 Pathak in the business of immoral traffic is concerned, there is no allegation in FIR or any evidence which prosecution has gathered in the course of investigation. 18. As regards involvement of Ganesh Pathak as an accused committing rape is concerned, the prosecution has not laid hands to explore the evidence and has failed in securing evidence of independent witnesses. No efforts are made by police to secure from the complainant, or through other witness, any or further details about the allegations of rape. Statement contained in the FIR pertaining to Ganesh Pathak [translated] reads as follows:- “.............................................. Thereafter, I used to reside with Nitu. On 13- 14th in May, 2007, Ganesh Pathak came at the residence of Nitu Takawat, committed rape on me and left the place. ....” [True translation of the relevant portion appearing in Hindi on page 18 of the paper-book of Cri. Application No. 670/08]. “....Prashant Ujjainkar, Digambad Banare, LCB Vijay Chavan, Mohan Nagalwar, Ganesh Pathak, Lali, Sanjay Pardeshi, Patodkar used to be sent to Nitu Takwat's flat and used to commit rape on me. ....” [True translation of the relevant portion appearing in Hindi on page 19 of the paper-book of Cri. Application No. 670/08]. 8 19. As regards involvement of applicant–Mohan Nagalkar, in FIR, same narration showing his acts as committing rape is made which [translation] reads as follows:- “....On some days at 10 p.m., Mohan Nagalkar came at Nitu's place. He was heavily drunk. He assaulted me and committed rape on me. ....” [True translation of the relevant portion appearing in Hindi on page 31 of the typed copy of FIR of the paper-book of Cri. Application No. 805/08]. “....Prashant Ujjainkar, Digambad Banare, LCB Vijay Chavan, Mohan Nagalwar, Ganesh Pathak, Lali, Sanjay Pardeshi, Patodkar used to be sent to Nitu Takwat's flat and used to commit rape on me. ....” [True translation of the relevant portion appearing in Hindi on page 32 of the paper-book of Cri. Application No. 805/08]. 20. In FIR, the portion appearing therein immediately after the quoted portions consists of allegations that Nitu Takwat did not stop at the business of immoral traffic, but also did the business of blackmailing, using the said immoral sexual acts. The customers, who used to be invited, used to have sexual relations either with the complainant or the girls involved, and said sexual relations were used in order to blackmail such persons and for extortion from them. Analysis 21. This being a case of anticipatory bail, this Court 9 would not be testing the truthfulness, or otherwise, either of the contents of FIR or the material collected by the Police during the course of investigation. 22. This material will be examined and considered with whatever is the value naturally attached thereto on the face, and considering collective effect thereof. 23. From this point of view, when the material in the shape of contents of FIR and statement under Section 164, Criminal Procedure Code, are considered, this Court is driven to reach certain conclusions, which can be narrated as follows:- [a] Nitu Takwat is the main propeller and kingpin. [b] Nitu Takwat has driven the victim and other girls to immoral traffic or prostitution. [c] The victim – Ruby alias Urvashi Thada is above the age of consent. Evidence of her age is available, as she was a college-going student. [d] Victim has chosen to lead the life in which she was dragged, and is also used as a bait in the business of blackmailing which, victim herself alleges, was being done by Nitu Takwat. [e] Various persons have been named by her involving those to whom the victim was sent or compelled for company in the bed. [f] Complaint, affidavit or news items reveal that the victim was for some time under confinement of Nitu Takwat, and had no occasion to escape, yet 10 lateron, she has continued stay with Nitu Takawat, as she pleads that her family members had developed hatred against her on account of her having chosen to live in immoral life and dejected her. [g] Mr. Raut of Deshonnati has helped her at the behest of one Rajeshwari Sharma, and then the affidavit was prepared, notarized, her version before press people was video recorded etc. [h] The victim has not punctually complained of alleged rape. [i] No details of rape committed upon her are explored by the police, nor are given by the complainant. [j] Victim also claims that she was raped by present applicant and many others. [k] In the affidavit sworn by her on 8th February, 2008 and statement made by complainant – victim before press three days prior to filing FIR, she has not disclosed, uttered or alleged about rape on her by present two applicants or other persons. [l] Complainant's statement is recorded under Section 164, Criminal Procedure Code by Magistrate. In this statement, the complainant has named both present applicants in the act of committing rape. Rival Submissions Applicants' side : 24. There is improvement and variations in her 11 statements given in affidavit, in press conference, to police and further improvement in the statement under Section 164, Criminal Procedure Code. The words alleging rape are uttered for the first time in FIR and are reiterated before the Magistrate in the statement under Section 164, Criminal Procedure Code. 25. Her allegation in affidavit is of Nitu having driven her to immoral traffic, threatening with life, her being forced to prostitution, and blackmailing the customers who used to be called for company in the bed with the complainant and other similar girls etc. It is factual that no grievance of rape is represented in the affidavit. 26. The submission of both the learned Advocates appearing for the applicants is that considering the social status and the background, as the applicants are such persons against whom people have a grudge, they are falsely involved in the Criminal Case. 27. Learned Advocates for the applicants bank upon the fact of improvement of the story and urge that even when the proposition that normally this is not a stage where the statements of witnesses are to be scrutinized, yet, from whatever is stated by the witnesses, no involvement of the 12 applicants in commission of offence of rape is demonstrated and, therefore, they have made out a case for grant of bail. According to them, bare allegation in FIR, which was by way of improvement, was not sufficient to book them. Prosecution side :- 28. In contrast, learned Additional Public Prosecutor – Mr. Mirza urges that whatever is stated in the affidavit does not contain allegation of rape is a fact, however, the material on the basis of which FIR is registered, is the statement given by the complainant to police. 29. The complainant has then reiterated her version which is a statement under Section 164, Criminal Procedure Code. Since the residents in the neighbourhood of the place of residence of Nitu Takwat are not disclosing any information, this circumstance should be viewed as adverse to the applicants that it must be so happening due to the social status of various accused involved in the case. 30. In absence of the rape being the fact of the matter, she has no reason, nor it is satisfactorily shown by any accused involved as to why victim should involve the accused persons in the commission of rape. The complainant 13 is quite clear and distinct in making her allegations. Her allegations of assault, driving her to prostitution and occurrence of rape are different and distinct against different persons. 31. Learned Additional Public Prosecutor has then relied upon the reported judgment of Hon'ble Supreme Court in the case of State of Maharashtra & another Vs. Mohd. Sajid Hussain Mohd. S. Hussain etc. [2007 AIR SCW 6354], and urged that Hon'ble Supreme Court has taken a very stern view in the matters of offences of flesh trade, particularly when highly placed Govt. Officers and persons having status in society are involved and were absconding. Reasons & conclusions 32. In the present case, it may not be possible to positively assert that the accused before the Court are absconding considering the very short span between the date of registration of offence and date of application for bail. 33. Unlike in the case before the Hon'ble Supreme Court relied upon by prosecution, in the case at hand, the prosecutrix is above the age of consent. However, all these things will not matter, for the reason that two cases 14 are never alike. Moreover, the case, which consists of a series of offences, involvement of an accused or accused persons in relation to the crime alleged against them will have to be seen, examining the role limited to their extent. 34. In so far as the present applicants are concerned, there is no allegation against them as far as offences under immoral traffic, assault, murder, wrongful confinement etc. are concerned. However, what is alleged against them is rape. 35. A question remains as an unsolved mystery for them and hence remains a puzzle for the Court which will have to be solved only after investigation is completed, when charge-sheet is filed and after conclusion of trial, namely as to why in absence of an explanation being explored by the accused persons or given by them, namely, why should the complainant allege such a serious and heinous offence against them? In the entire city of having a population of over 25 lakhs, why should the complainant name particular persons. The allegations would ordinarily not come from the blue. 36. Therefore, question, which has remained unanswered from the side of accused persons, is that as to what animus 15 or enmity the complainant has against them? 37. Be it that, nothing about rape is said in the affidavit, but if rape be a fact, the omission to mention in affidavit shall not matter at this stage. 38. With whatever variations and improvement the complainant must have done, at this stage, those need some allowance and latitude, and all that will have to be considered is that there is material available before the police to believe that the accused are involved in commission of offences and at present there is nothing on record to suggest that the grievance made against the applicants is false. 39. Once allegation of rape is disclosed in the FIR, it is the duty of police to investigate and to take steps to collect the evidence in support of the story or whatever available. 40. Being an offence of a cognizable and non-bailable nature, it is obvious that police would be entitled to arrest the accused. Accused have, however, failed to bring on record any circumstance as to what is so exceptional in their case that they should be granted anticipatory bail. 16 41. From whatever was the material available before the Court, at the first hearing, Court had granted interim protection and now what has been brought on record is adequate enough to deny continuation of such protection. In the result, both the applications are liable to be dismissed and are dismissed. Interim orders stand vacated. JUDGE -0-0-0-0- |hedau|