High Court
Legal Reasoning
2374.2023BA+-8- condom. He beaten her when she refused for sexual intercourse.When she made complaint about that to Amina, she also abused andbeaten her. This shows that there was no consent on the part of theinformant which reveals prima facie from the report and herstatement. 16.Further only because any woman is doing prostitutionbusiness, there can not be permanent consent on her part who wishto have sexual intercourse with her. She has right to refuse toperform sexual intercourse with anybody. Therefore, when there isno consent of the informant as stated by her in the report itself, theapplicant Lakhansingh can not be released on bail as there was nosuch consent. 17.As far as medical evidence is concerned in each andevery case medical evidence is not necessary. In Indian culturewoman can not make such false allegation of rape and get defameher character and suffer for entire life. 18.Considering all above reasons, the authority of ArnabGoswami (cited supra) is not helpful to the applicants to release themon bail as the factual matrix are different in this and that case.Further it was application for anticipatory bail and this application isfiled for regular bail thus the parameters are different. Consideringthe serious nature of the crime, the possibility of pressurizing the 2374.2023BA+-9- prosecution witnesses on the part of applicants cannot be ruled out ifthey are released on bail. The applications, therefore, deserve to berejected. Accordingly, the applications are rejected. 19.Fees of Ms.Sayali Tekale appointed advocate forrepresenting the cause of respondent no.2 in Bail ApplicationNo.2275 of 2023 and respondent no.3 in Bail Application No.2374 of2023 be paid through the High Court Legal Services Sub-Committee,Aurangabad as per rules. (SANJAY A. DESHMUKH, J.) sga
Arguments
2374.2023BA+-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD918 BAIL APPLICATION NO. 2374 OF 2023Lakhansingh Misrilal Kushwaha ..APPLICANT -VERSUS-The State of Maharashtra and others..RESPONDENTS ...Advocate for Applicant : Mr. Andhale Sandip RamnathAPP for Respondent/State : Mrs.Pratibha J. Bharad Advocate for Respondent No.3 : Ms. Sayali Tekale (appointed)...WITHBAIL APPLICATION NO. 2275 OF 2023Amina @ Sultana Raju Shah ..APPLICANT -VERSUS- The State of Maharashtra and another ..RESPONDENTS ...Advocate for Applicant : Mr. Shah Subodh P.APP for Respondent/State : Mrs.Pratibha J. Bharad Advocate for Respondent No.2 : Ms. Sayali Tekale (appointed) ….. CORAM : SANJAY A. DESHMUKH, J. DATED : 30th JANUARY, 2024. PER COURT :- 1.The applicants have prayed for bail under section 439 ofthe Code of Criminal Procedure, 1973 (for short, “Cr.P.C.”) inconnection with crime No. I 523 of 2022 registered with RahataPolice Station, Dist. Ahmednagar, for the offences punishable undersections 370, 376 (2) (m)(n), 323, 504 and 506 of the Indian PenalCode, 1860 (for short, “IPC”) and under sections 3, 4(1), 5, 9 ofImmoral Trafficking Act, 1956 and under sections 3(A), 4, 5(J), 2(L), 2374.2023BA+-2- 6, 16, 17 of POCSO Act, 2012. 2.Informant averred in the report that applicant – Amina isher maternal aunt. Her parents are no more. Her step mother washarassing her. Therefore, she came to reside with Amiina at Rahata,Tq. Rahata, Dist.Ahmednagar as per request of her maternal uncle.On 01.10.2022, at about 6 p.m., her aunt told her that they have togo to Shirdi. Informant, her maternal aunt and Bhavana, the friend ofAmina went to Shirdi. When they were near to the temple, Amina toldher that one person will come, he will take her in a room and sheshould do as per his wish. She threatened that if she refuses to doso, she will be expelled from the house. She was frightened. At about7.30 p.m., one person came there in white colour car having whiteclothes named as Shendiwala, aged about 50-54 years. He tookinformant with him to one hotel and tried to outrage her modesty bytouching her. When she tried to prohibit him, he beaten her andcommitted sexual intercourse with her. She suffered by the pains andshe become unconscious there. She regained consciousness atabout 9.30 p.m. and she was dropped to Amina. Thereafter, hermaternal aunt told her that she has to continue such prostitutionbusiness, otherwise she will not maintain her. She also threatenednot to tell that incident to anybody, otherwise she will eliminate her.Therefore, she could not lodge the report. Thereafter, after 4-5 days,one Gorakh Gadekar made phone call to maternal aunt of the victim.She told her that one person is ready to pay Rs.10,000/- and the 2374.2023BA+-3- informant has to go with him. Thereafter, at about 8 p.m., she went tohotel “Bambu House” on the two wheeler of Gorakh Gadekar. Hetook her to one Lodge. One Bhushan Pawar (Vakil) was there. Hecommitted rape on her. Due to pains, she suffered. Again he tried tocommit rape on her. She refused therefore he assaulted her. In themorning at 5 a.m., she came to the house of Amina by auto-rickshaw.Thereafter Bhushan Pawar committed rape on her for 6-7 times andpaid some amount to Amina. 3.Thereafter, continuously Amina forced informant tocommit same acts with 5-6 unknown persons. 4.Applicant – Lakhansingh was the Manager of that hotel.He used to search new customers. Raheman Raju Shah used toleave her in that hotel for that prostitution business. Lakhansinghused to commit rape on her without her consent, without usingcondom. When informant told that fact to Amina, she was abusingand beating her. Meanwhile, informant met with Arbaj Khan. He gavehelp of assurance to her. 5.On 23.11.2022 at about 1.30 a.m., informant wassuffering from stomach pains, therefore, Amina took her to thehospital of one Dr.Chandshah. Thereafter, the maternal aunt ofinformant took her to the Police Station, Rahata and demandedcertificate in order to admit the informant in Anath Ashram. That time, 2374.2023BA+-4- the Police inquired with her and she stated all the incidents occurredwith her. That time, a report was lodged on 24.11.2022 and theseapplicants were arrested. 6.Mr.Shah, the learned advocate for the applicantsubmitted that co-accused Gorakh Gadekar is released on bail bythis Court in Bail Application No.368 of 2023. One of the co-accusedis also granted facility of pre-arrest bail. He prayed bail on the groundof parity. He further pointed out the statements of the witnessesparticularly their different versions regarding Arbaj Khan who is thefriend of informant. He further pointed out the report of medicalexamination of the informant is that she was having no any injury. Hepointed out that the provisions of POCSO Act are not attracting asheld by this Court in Bail Application No.368 of 2023. The learnedadvocate for the applicant submitted that the applicant is behind barfor more than one year, the applicant has roots in the society, she willnot flee away from the trial. Being woman, she be released on bail. 7.Mr.Andhale, the learned advocate for the applicant alsopointed out the orders granting regular bail and anticipatory bail tothe co-accused. He submitted that there is no such medical evidenceas alleged by the informant. He submitted that at the most it isconsensual sex. The delay caused for lodging report is not explained.He submitted that no specific dates of rape incident are eithermentioned in the report and the statement of the informant recorded 2374.2023BA+-5- under section 164 of the Cr.P.C.. The applicant is falsely implicatedin the crime. He lastly prayed for granting bail on the ground of parity.8.The learned APP and the learned advocate appointed onbehalf of respondent no.2 in Bail Application No. 2275 of 2023 andfor respondent no.3 in Bail Application No.2374 of 2023 stronglyopposed the applications and pointed out the report and statementsof the witnesses. They pointed out that applicant Amina is wirepullerof this heinous crime and she forced the informant to commit suchheinous acts. She is severally abused. It is lastly prayed to reject theapplications. 9.Mr.Shah, the learned advocate for the applicant isrelying upon the authority of Arnab Manoranjan Goswami V/s Stateof Maharashtra and others reported in (2021) 2 SCC 427, moreparticularly para 70, in which it is held thus :-“70.More than four decades ago, in a celebratedjudgment in State of Rajasthan v. Balchand (1977) 4 SCC308, Krishna Iyer, J. pithily reminded us that the basic ruleof our criminal justice system is “bail, not jail”. The HighCourts and courts in the district judiciary of India mustenforce this principle in practice, and not forego that duty,leaving this Court to intervene at all times. We must inparticular also emphasise the role of the district judiciary,which provides the first point of interface to the citizen.Our district judiciary is wrongly referred to as the 2374.2023BA+-6- “subordinate judiciary”. It may be subordinate in hierarchybut it is not subordinate in terms of its importance in thelives of citizens or in terms of the duty to render justice tothem. High Courts get burdened when courts of firstinstance decline to grant anticipatory bail or bail indeserving cases. This continues in the Supreme Court aswell, when High Courts do not grant bail or anticipatorybail in cases falling within the parameters of the law. Theconsequence for those who suffer incarceration areserious. Common citizens without the means or resourcesto move the High Courts or this Court languish asundertrials. Courts must be alive to the situation as itprevails on the ground-in the jails and police stationswhere human dignity has no protector. As Judges, wewould do well to remind ourselves that it is through theinstrumentality of bail that our criminal justice system’sprimordial interest in preserving the presumption ofinnocence finds its most eloquent expression. The remedyof bail is the “solemn expression of the humaneness of thejustice system”. Tasked as we are with the primaryresponsibility of preserving the liberty of all citizens, wecannot countenance an approach that has theconsequence of applying this basic rule in an invertedform. We have given expression to our anguish in a casewhere a citizen has approached this Court. We have doneso in order to reiterate principles which must governcountless other faces whose voices should not gounheard.” 10.Perused the charge-sheet and the orders grantingregular bail and anticipatory bail to the co-accused. 2374.2023BA+-7- 11.While granting regular bail, this Court held that role ofthe co-accused Gorakh Gadekar @ Padekar was limited, to leave thevictim at the hotel, and therefore, he was released on bail. 12.As far as, granting of anticipatory bail to the another co-accused is concerned, it was granted because the informantsubmitted an affidavit that co-accused Bhushan Pawar’s (Vakil)name was included in the FIR at the instance of her maternal auntAmina falsely. Therefore, anticipatory bail was granted to him. 13.In the report, informant has explained as to how thedelay caused for lodging the report that Amina aunt was threateningto her and how her mental condition was during that period. 14.Applicant-Amina is the prime accused and she forcedand compelled the informant for doing the prostitution business andmany times rapes were continued on her for month together. It isvery serious illegal overt act on her part. She may pressuriseprosecution witnesses, she may compel such innocent girls in suchheinous prostitution business in future. Therefore, considering herrole she is not entitled for bail. 15.Applicant – Lakhansingh was the Manager of the saidLodge. He took disadvantage of the informant and forcibly committedrape on the victim on many times and that too without use of