1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL MISCELLANEOUS APPLICATION(BAIL) NO. 60 OF 2010 Mr. John Fernandes, S/o Sebastiano Fernandes, Age 34 years, R/o F-9 Sansgiri Arcade, Colva, Salcete, Goa. (Presently in JC, Margao). ... Applicant versus 1. State of Goa, through Inspector, CID Crime Branch, Dona Paula, Goa. 2. Public Prosecutor, High Court of Judicature at Mumbai at Panjim Goa. ... Respondents Shri Ashwin Naik with Shri Mike Mehta and Ms. P. Bandekar, Advocates for the Applicant. Shri C. A. Ferreira, Public Prosecutor for the Respondents. CORAM : N. A. BRITTO, J. DATE : 30TH APRIL, 2010. JUDGMENT Heard Shri Ashwin Naik, learned Counsel on behalf of the applicant and Shri C. A. Ferreira, learned Public Prosecutor on behalf of the State. 2 2. The applicant herein is an accused against whom a charge-sheet has now been filed on 15-2-2010 under Sections 354, 509, 504, 33, 376, 201, I.P.C. and the case has been committed to the Court of Sessions. The accused has approached this Court for bail, after the same has been denied to him, by the learned Additional Sessions Judge, Margao by Order dated 26-2-2010, after the filing of the charge-sheet. Earlier, bail was also denied to the accused by the learned Additional Sessions Judge by Order dated 20-1-2010. 3. Some facts are required to be stated to dispose off the bail application. The victim(name withheld) and one Ksenia are both Russian Nationals. The former works at Hotel Leela and lives in with one Milroy Antao. Ksenia is a friend and business partner of one Tavish Aguiar who is in the business of water sports. The accused is also in the business of water sports boat building. On 1-12-2009 both the ladies went out for dinner at Colva Beach to a restaurant known as “Boomerang” and continued to be there till about 2.00 a.m. of the next day. They were joined earlier by the accused and they all took drinks and the accused offered them to be dropped home. The said Ksenia was dropped first, and on the way to the flat of the victim the incident of rape took place, regarding which a complaint came to be filed by the said victim at Colva Police Station at about 16.25 hours of 2-12-2009. The investigations were then transferred to the CID, Crime Branch, at Panaji by Order dated 4-12-2009 of the Deputy Inspector General of Police, Goa who is 3 now on affidavit to say that the said investigations were transferred to the CID, Crime Branch because the incident had received media attention and the victim was a foreign national who had levelled allegations about the conduct of the local Police, and, therefore in order to ensure thorough professional and impartial investigation the case was transferred to the CID, Crime Branch, Panaji. 4. A supplementary statement of the victim was then recorded by the next Investigating Officer on 5-12-2009, and consequently Section 511 I.P.C. was deleted and the victim was sent for fresh medical examination and the panel of doctors confirmed that there were thirteen injuries on the exposed parts of her body. In the meantime, on 2-12-2009 the accused filed an application for anticipatory bail which came to be decided by the learned Sessions Judge on 8-12-2009. Bail was granted with certain conditions. The State then filed an application before this Court on 10-12-2009 for cancellation of the said anticipatory bail and on 15-12-2009 the order granting bail was cancelled. The accused then approached the Hon'ble Supreme Court for bail and his application came to be dismissed on 4-1-2010, as withdrawn. The accused then surrendered on 6-1-2010 and was arrested, and since then has been in custody initially in police custody for about 12 days, and thereafter in judicial custody. 4 5. The grant of bail to the accused has been objected to by Shri C. A. Ferreira, the learned Public Prosecutor on various grounds and I will deal with them seriatim. 6. The first objection taken is that a second application for bail would not be maintainable before this Court, since the jurisdiction conferred to grant bail under Section 439 of the Code is concurrent with the Court of Sessions. This submission is made relying on the decision of the Division Bench of the Calcutta High Court in Amiya Kumar Sen v. State of West Bengal(1979 CRI. L. J. 288) but it was given up immediately, and in my view fairly, after the Judgment of this Court in Devi Das Raghu Nath Naik v. State(1987(3) 363) was cited. In fact, the learned Public Prosecutor also cited a Judgment of the Apex Court in Ram Pratap Yadav v. Mitra Sen Yadav(2002 DGLS(Soft) 929). 7. In the case of Devi Das Raghu Nath Naik v. State(supra) this Court agreed with the view held in Gopinath v. State of Kerala(1986 Cri.L.J. 1742) and observed that there is no bar whatsoever for a party to approach either the High Court or the Sessions Court with an application for ordinary bail made under Section 439 of the Code. The power given by Section 439 to the High Court or to the Sessions Court is an independent power and thus, when the High Court acts in the exercise of such power it does not exercise 5 any revisional jurisdictions, but its original special jurisdiction to grant bail and this being so, it becomes obvious that although under Section 439 Cr. P. C. concurrent jurisdiction is given to the High Court and Sessions Court, the fact that the Sessions Court has refused bail under Section 439 does not operate as a bar for the High Court entertaining a similar application under Section 439 on the same facts and for the same offence but if the choice was made by the party to move the High Court first and the High Court has dismissed the application, then the decorum and the hierarchy of the Courts would require that if the Sessions Court is moved with a similar application on the same facts, the said application be dismissed. This Court also observed that there was no substantial difference between Section 438 and Section 439 as regards the appreciation of the case as to whether or not a bail is to be granted. The only distinction is that in a case under Section 438 the person who approaches the Court apprehends that he may be arrested without any justification or basis, whereas under Section 439 such person approaches the Court after his arrest and that being the position the principles that govern Section 439 as regards the maintainability of the application would also be attracted to an application under Section 438 of the Code. 8. However, the observations of the Apex Court in Ram Pratap Yadav v. Mitra Sen Yadav(supra) require to be noted and followed. The Apex Court has stated that a prayer for bail having been rejected by the 6 Sessions Court, although the High Court while exercising its jurisdiction under Section 439 of the Code is not acting as a Court of appeal or Court of revision over the order of the Sessions Court, nevertheless, the High Court should keep in mind, while hearing the application for bail, the factum of the prayer having been rejected by the Sessions Court and the reasons therefor expressly set out in the order of the Sessions Court. The order of the High Court, howsoever brief it may be, should make it appear that the High Court while forming opinion on prayer for bail was conscious of the reasons for rejection of prayer for bail as assigned by the Sessions Court. On facts of the case, the Apex Court observed that the order did not show the said requirement having been satisfied as the High Court had not said a word as to why the reasons assigned by the Sessions Court for rejecting the prayer for bail need to be ignored or were not relevant or why the High Court was inclined to exercise its power favourably to the accused inspite of the availability of grounds to the contrary set out in the order of the Sessions Court. The Apex Court has further observed that independently of the order of rejection passed by the Sessions Court, the High Court may grant bail to an accused person, yet it would be sound exercise of discretionary jurisdiction of the High Court if the order of the High Court reflects that the High Court had in mind the reasons assigned by the Sessions Court for refusing bail. The Apex Court in Kalyan C. Sarkar(infra) has also observed that where earlier bail applications have been rejected, there is a further onus on the Court to consider the subsequent application for grant 7 of bail by noticing the grounds on which the earlier bail applications were rejected and if after such consideration if the Court is of the opinion that bail has to be granted then the said Court will have to give specific reasons why inspite of such earlier rejection the subsequent application for bail should be granted. 9. Filing of the charge-sheet, as a matter of practice, is always considered as a change of circumstances, entitling an accused person to move the Court afresh for bail, in case the bail application was rejected earlier at the stage of investigations. The need of the accused to be in custody to facilitate investigations and the need of the accused to be in custody during trial can be looked at differently, though it is open to the Court to take the same view as taken earlier, while rejecting the application for bail at the stage of investigations.(See Laxman Irappa Hatti, 2004(4) Mh.L.J. 415). 10. Be that as it may, the law as regards grant or refusal of bail is well settled in that the Court granting bail in a non bailable offence should exercise its discretion in a judicial manner, and not as a matter of course and though at the stage of granting of bail a detailed examination of evidence and elaborate documentation is not required to be gone into nevertheless there is need to indicate reasons for prima facie concluding why bail was being granted or rejected particularly in cases where an accused is charged of having 8 committed a serious offence and any order devoid of any such reason, however brief they may be, would suffer from non application of mind. Giving reasons is different from discussing the merits or demerits of the case. The parameters required to be taken into consideration for the grant of refusal or refusal of bail remain the same from the case of State v. Captain Jagjit Singh(a three Judge decision of the Apex Court reported in AIR 1962 SC 253, relied upon by the learned Public Prosecutor Shri C. A. Ferreira) to the case of Gurcharan Singh v. State(AIR 1978 SC 179) relied upon by learned Counsel Shri Naik, to the case of Prahlad Singh Bhati v. N.C.T. Of Delhi(2001 DGLS(Soft) 503) as well as Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav(2004 DGLS(Soft) 159) relied upon by Shri Ferreira, and the said considerations could be summarized as follows:- a). The gravity of the offence in relation to the severity of punishment involved in case of conviction; b). Nature of evidence to support the same; c). Prima facie satisfaction of the Court in support of the charge; d). The character, behaviour, means and standing of the accused with reference to the victim and the witnesses. e). Reasonable apprehension of the witnesses being tampered with . f). The possibility of the accused jumping bail and fleeing from justice. g). Likelihood of repeating the offence. h). Likelihood of jeopardizing his own life being faced with possible conviction. 9 i). Larger public interest or the interest of the State. j).History of the cases as well as of its investigation and other relevant grounds which cannot be exhaustibly set out. 11. As far as the involvement of the accused is concerned, the learned Sessions Judge has observed, and in my view rightly, that at this stage there is prima facie evidence which suggests that the applicant has sexually abused the victim by criminal force and the injuries suffered by her are the natural consequence of use of that force. Shri Naik, learned Counsel on behalf of the accused has tried to contend that the entire material now available after the filing of the charge-sheet was required to be re-assessed. Learned Counsel further submitted that this was a case where there were two F.I.R's, one lodged on 2/12 and the other on 5/12. On the other hand, Shri Ferreira pointed out that although a charge-sheet is now filed, there is no material change in fact situation and there is already a prima facie finding given by this Court by its Order dated 14/15-12-2009 which should hold good even after the filing of the charge-sheet and the same need not be changed. In my view, it is impermissible to give another finding at this stage before trial regarding the involvement of the accused. In fact, it has been rightly observed by the learned Sessions Judge that this Court had taken cognizance of the supplementary statement made by the victim and had observed that in the F.I.R. the victim had stated that the accused had remained on her for about 10 minutes and in the supplementary statement she had narrated graphically what act the accused 10 had performed. The learned Additional Sessions Judge further stated that in the F.I.R. the complainant had not made a statement that the accused had only made an attempt to rape her but she had only stated that she had received scratches and black marks all over her body as she had tried to prevent the rape. The learned Additional Sessions Judge further observed that there was no change in situation except for filing of the charge-sheet and the observations of this Court were binding on him and it was not possible to take a different view. In my view, the finding given by this Court in its Order dated 14/15-12-2009 ought to hold good at every pre-trial stage. This Court had observed in para 11(referring to the order granting anticipatory bail) that the learned Sessions Judge had completely overlooked the fact that the accused had prompted the complainant(victim) and her friend to consume excessive liquor between 11.00 p.m. on 1-12-2009 and 2.00 a.m. on 2-12-2009 which conduct of the accused revealed his design which he was planning to effect ruthlessly. This Court had further observed that the F.I.R. dated 2-12-2009 revealed that the accused after dropping the friend of the victim instead of proceeding in right direction, removed his clothes, lowered her skirt and underwear and jumped on the complainant to rape her and he remained on the complainant for about 10 minutes despite the pleadings of the said complainant(victim) not to rape her. It was further observed that the F.I.R. dated 2-12-2009 further revealed that the complainant had received scratches and marks over her body as she tried to prevent the rape. The F.I.R. further revealed that the complainant was 11 completely disoriented. The supplementary statement dated 5-12-2009 gave details of what happened while the accused remained on the complainant for about 10 minutes. Graphic picture of rape during those 10 minutes is available in the supplementary statement dated 5-12-2009. This Court further observed that there was no material inconsistency between the revelations made in the supplementary statement dated 5-12-2009 which are merely of an elaborative nature. The victim was a Russian national. In the instant case, there was a clear medical evidence of the resistance put up by the victim in form of 12 to 13 injuries, some of them being on the thighs and the knees. Obviously, the victim was not a consenting party to the sexual assault made by the accused. The victim's supplementary statement brought forth all details of what happened with her. There was nothing to suggest that the victim had any political interest or was prompted by any politician to make allegations of rape at the cost of her stay in foreign land and her honour in the eyes of her own people abroad. Affidavit of her friend Ksenia dated 4-12-2009 only hints at the invisible influence of the presence of the accused to free from the clutches of law. The said Ms. Ksenia revealed in her affidavit the presence of the accused at the dinner table with the victim and herself at the material time. It also revealed that the accused had dropped the victim at her house at Benaulim. There is material shift in her version that the victim was dropped first and later on she was dropped at her house and a false complaint had been filed against the complainant accused at the instance of the boyfriend of the victim...etc. 12 The learned Single Judge has recorded a prima facie finding as regards the involvement of the accused. The statement of Ksenia dated 4-12-2009 shows that it is she who was dropped first and the victim had exchanged the seat with her and the affidavit dated 4-12-2009 to the contrary appears to have been manipulated without her knowledge by the said Tavish. There is further corroborative evidence by way of a SMS from the accused to the victim which says “Milroy just called me and said that I tried to rape you, what have you told him”. There is another message sent by Milroy to the accused at 4.12 p.m. on the same day which says “you and she was without clothes inside car and fuck almost happened. Course you want her but only almost her words. I didn't ask details not interesting for me” and there is yet another message at 6.09 from the said Milroy to the accused “I didn't expect this from you” which are certainly pieces of corroborative evidence to corroborate the version of the said victim. In other words there is strong prima facie evidence against the accused that he is involved in a serious offence under Section 376 I.P.C. which is punishable with a minimum punishment of 7 years and which could go upto 10 years or life. 12. Learned Counsel next submits that the victim is a foreigner. Learned Counsel submits that the accused is an indian citizen and that his continued incarceration comes in the way of his right to live conferred under Article 21 of the Constitution of India and in this context, learned Counsel has 13 relied upon the Judgment of the Constitution Bench in the case of State of West Bengal and others v. The Committee for Protection of Democratic Rights, West Bengal and others(2010(2) ALL MR 941) wherein the Apex Court has observed that Article 21 of the Constitution in its broad perspective seeks to protect the persons of their lives and personal liberties except according to the procedure established by law. The said Article in its broad application not only takes within its fold enforcement of the rights of an accused but also the rights of the victim. The State has a duty to enforce the human rights of a citizen providing for fair and impartial investigation against any person accused of commission of a cognizable offence which may include its own officers. In certain situations even a witness to the crime may seek for and shall be granted protection by the State. On the other hand, Shri Ferreira, learned Public Prosecutor has submitted that only because the victim was a foreigner, her person could not be violated, and, in this context learned Public Prosecutor has placed reliance on the case of Court On Its Own Motion v. Vishnu Pandit and another(1993 Cri. L. J. 2025) wherein the Delhi High Court has observed that if Article 21 of the Constitution gives right of liberty to the accused, it at the same time protects a woman so that she can live with dignity and honour. Shri Ferreira has also placed reliance on the case of Chairman, Railway Board v. Chandrima Das(2000(1) Supreme 265) which was also a case where the victim was not a citizen of this country but had come as a citizen of Bangladesh and it was observed by the Apex Court 14 with reference to Article 21 of the Constitution that being a citizen of Bangladesh, she was nevertheless entitled to all the Constitutional rights available to a citizen so far as right to life was concerned. She was entitled to be treated with dignity and was also entitled to the protection of her person as guaranteed under Article 21 of the Constitution. As a national of another country, she could not be subjected to a treatment which was below dignity nor could she be subjected to physical violence at the hands of Government employees who outraged her modesty and thus the right available to her under Article 21 of the Constitution was violated. In my view, there is no question of any violation of right to Article 21 of the Constitution of India as far as the accused is concerned because the accused is being denied bail also under procedure established by law. It is well settled law, in matters of bail, that the Courts should not be unduly concerned with the concept of liberty by disregarding the facts of the case. It is to be noted that refusal of bail is also under procedure established by law. 13. Shri Ferreira, learned Public Prosecutor relying on Prahlad Singh Bhati v. N.C.T. Of Delhi(supra) has objected to the grant of bail to the accused on the ground of his conduct i.e. the conduct of the accused in evading arrest from 14-12-2009. Learned Public Prosecutor submits that abscondence is generally a circumstance which is taken into consideration in the course of a trial. Shri Ferreira, learned Public Prosecutor submits that the 15 investigating agency was after the accused from 14-12-2009 and the accused was asked to remain present before this Court. On the other hand, it has been submitted by Shri Naik that the accused was appearing before the Police Station in accordance with the terms and conditions of the anticipatory bail order. Shri Naik, learned Counsel has further submitted that after the bail of the accused was cancelled the accused had to proceed to file a Special Leave Petition before the Apex Court and as such the accused had not absconded and was in search of his legal remedies. Shri Ferreira, learned Public Prosecutor has placed for my perusal a summary of the efforts made by the prosecution from 14-12-2009. It can be seen from the said summary that on 14-12-2009 a wireless message was sent to Colva Police Station to direct the accused to remain present before the Crime Branch on 14-12-2009 at 16.30 hours and on the same same day Colva Police Station informed the C.I.D. that the mother of the accused had told them that the accused was not available at his residence. Another message was sent to Colva Police Station to direct the accused to appear on the next day i.e. on 15-12-2009 and that message was replied informing that according to the brother of the accused by name Gracio the accused had not returned from Panaji and his whereabouts were not known to him or the inmates of his house. Crime Branch was also informed that the message was conveyed through the father of the accused. On 16-12-2009 P.S.I. Bhandari of the Crime Branch was sent to trace the accused who returned after visiting the place of stay, shop and other suspected places and reported that the 16 accused was not found. P.S.I. Bhandari also recorded the statement of the mother of the accused. On 17-12-2009 another message was sent to P.I. Colva Police Station to detain the accused and on the same day an application was filed before the J.M.F.C. to issue a non bailable warrant of the arrest of the accused of John Fernandes which was granted on the