Aasaram's bail denied by Rajasthan High Court

The Hon'ble High Court of Rajasthan dismissed the bail application in Aasaram's case...

 

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR

S.B.CRIMINAL MISC.2

nd BAIL APPLICATION NO.10115/2013

(Saint Shri Asharam Bapu Vs. State of Rajasthan)

Date of order : : 10th February, 2014

HON’BLE MS.JUSTICE NIRMALJIT KAUR

Mr.Ram Jethmalani, Mr.C.V.Nagesh, Mr.J.S.Choudhary, Senior

Counsel assisted by Mr.Anjani Kumar Singh, Saurabh Ajay

Gupta, and Mr.Pradeep Choduhary, counsel for the petitioner.

Dr.Pushpendra Singh Bhati & Mr.Rajesh Panwar, Additional

Advocates General along with Mr.Pradhuman Singh,

Mr.Chandra Sen Rathore and Mr.Mahipal Bishnoi, counsel

for the State.

Mr.P.C.Solanki & Mr.P.K.Verma, counsel for the complainant.

Ms.Mukta Pareek & Mr.Ramdev, I.O. present in person.

 Reportable <><><><>

This is second bail application under Section 439 Cr.P.C.

The petitioner is seeking bail in Session Case No.152/2013 arising

out of FIR No.122/2013, P.S. Mahila Thana (West) Jodhpur and

0/2013, P.S.Kamla Market Delhi, pending trial in the Court of

Sessions Judge, Jodhpur for offence under Sections for the

offence under Sections 342, 376(2)(F), 376(D), 370(4), 354A, 506,

509/34, 120-B of the IPC, Sections 23 & 26 of the Juvenile Justice

(Care and Protection of Children) Act, 2000 and Section 5(F)/6, 5

(G)/6, 7/8 of the Protection of Children from Sexual Offences Act,

2012.

The first bail application of the petitioner was dismissed on

01.10.2013 by a detailed order. The second bail application has

been filed on the ground that challan has since been filed and that[ 2 ]

the earlier bail was dismissed at the point of time when the

investigation of the case registered against the petitioner was in

progress.

Learned Senior Counsel, Shri Ram Jethmalani, addressed

arguments on 07.01.2014 as well as on 13.01.2014, which were

continued by Mr.C.V.Nagesh, Senior Counsel, on the subsequent

date and finally concluded by handing over written submissions on

03.02.2014.

It was argued that the material collected does not make out

a serious offence for which a sentence of imprisonment exceeding

five years can be imposed upon the petitioner. The allegations

alleged against the petitioner are under three different

enactments. Firstly, under Sections 23 and 26 of the Juvenile

Justice (Care and Protection of Children) Act, 2000. Under these

Sections, a child should be procured for the purpose of any

hazardous employment and the offence should be committed by a

person who is in actual charge of or control over the child,

whereas, there is no evidence available on record that the

prosecutrix, who is a child, was procured for the purpose of any

employment or that the petitioner was the person having the

actual charge of or control over the child so assaulted.

Secondly, accusations are under the provisions of

Protection of Children from Sexual Offences Act, 2012 of having

committed the act of aggravated penetrative sexual offence.

Under Section 6 of the said Act, aggravated penetrative sexual

assault is attributable to certain class of persons who have[ 3 ]

committed the act of penetrative sexual assault; they being a

police officer, member of the armed force or security forces, a

public servant, a person on the management or on the staff of jail,

remand home, protection home, observation home, or other place

of custody or care and protection established by or under any law

for the time being in force, management or staff of a hospital and

the management or staff of an educational institution or religious

institution, whereas, in the present case, the prosecutrix was a

student of Gurukul, which is run by a trust and therefore, the

petitioner has got nothing to do with the institution where the

prosecutrix was studying and the said offence was not committed

in such an institution. Further, from the several statements of the

prosecutrix, it is evident that there is no allegation of penetration.

Thus, from the statement of the prosecutrix, if taken on face value,

the only conclusion one can be arrived, is that her modesty came

to be outraged and nothing else, for which the maximum sentence

that could be imposed is for a period extending upto five years

only. The offence was not so serious that would disentitle the

petitioner to have the benefit of bail.

Thirdly, the petitioner is alleged to have committed offences

which are made penal under Sections 342, 354-A, 506, 509 and

under Section 376(d)(f) and 370(4) of the Indian Penal Code.

Section 375 of the Indian Penal Code defines “Rape”. “Rape” as

defined under Section 375 of the Indian Penal Code is in paramateria

with the definition of penetrative sexual assault as defined

under Section 3 of the Protection of Children from Sexual[ 4 ]

Offences Act. While dealing with the penetrative sexual assault, it

is submitted that the act which is attributed to the petitioner as

could be made out from the statements of the prosecutrix, does

not even remotely indicate that the petitioner has, on the person of

the prosecutrix committed an act of penetrative sexual assault.

Further, Section 376(2) of the IPC is referable to certain class of

persons and the petitioner does not fall under the category of such

class who is in the management or of the staff of a jail, remand

home, or other place of custody.

Learned counsel for the petitioner went on to argue that as

regard the offence punishable under Section 370(4) of the Indian

Penal Code, it was neither the case of the prosecution nor the

grievance of the victim that the accused had recruited or

transported or harboured or transferred or received the victim for

exploitation.

Learned Senior Counsel, Mr.Ram Jethmalani, further

submitted that FIR No. 122/2013, P.S. Mahila Thana (West),

Jodhpur is not the actual FIR. The FIR was registered on the

statement of the prosecutrix. Her first complaint made on

19.08.2013 is being suppressed. There are discrepancies in her

statements made under Section 161 of the Cr.P.C. on 20.08.2013

and subsequent to 21.08.2013 before the Jodhpur Police.

It was pleaded that the petitioner is aged around 76 years.

He is old and infirm. He is suffering from more than one disease

and needs emergency treatment by specialized doctors. Further,

the investigation having been completed and result of the[ 5 ]

investigation having been filed, the prosecution cannot now take

the plea that the petitioner will interfere with the course of

administration of justice in any manner and that he cannot be

blamed for the agitation by his disciples and the same is the

handwork of certain persons who are out to tarnish the image of

the petitioner.

Reliance was placed on the judgment rendered by Hon'ble

the Apex Court in the case of Gurbuksh Singh Sibbia etc. Vs.

State of Punjab, reported in (1980)3 Supreme Court Reports 383

to contend that it is “indisputable” that bail is not to be withheld as

a punishment. Reliance was also placed on the judgment

rendered by Hon'ble the Apex Court in the case of Sanjay

Chandra Vs. Central Bureau of Investigation, reported in (2012) 1

Supreme Court Cases 40 in which reliance was placed on the

concept and philosophy of bail discussed by Hon'ble the Apex

Court in the case of Vaman Narain Ghiya Vs. State of Rajasthan

[reported in (2009)2 SCC 281], which reads as under:-

“8. The law of bail, like any other branch of law, has

its own philosophy, and occupies an important place

in the administration of justice and the concept of bail

emerges from the conflict between the police power to

restrict liberty of a man who is alleged to have

committed a crime, and presumption of innocence in

favour of the alleged criminal. An accused is not

detained in custody with the object of punishing him

on the assumption of his guilt.”

Dr.Pushpendra Singh Bhati, learned Additional Advocate

General vehemently opposed the bail and submitted that the first

bail application of the petitioner stands dismissed. The first bail

application of the petitioner was rejected by this Court on merits.[ 6 ]

The filing of the charge-sheet is not a change in the

circumstances. Reliance was placed on the judgment rendered by

Chhattisgarh High Court in the case of Manoj Kumar Sharma Vs.

State of Chhattishgarh, in Misc. Criminal Case No.507 of 2010,

decided on 8.3.2010 and the judgment rendered by Gujarat High

Court in the case of Meghabhai Varjangbhai Vs. State of Gujarat,

in Misc. Application (for Cancellation of bail) No.17585/2012,

decided on 1.3.2013 wherein reliance was placed on the judicial

pronouncement of the Hon'ble Apx Court as under:-

“It is a well settled principle of law that when the

successive application comes before the Court, the

Court would be very conscious while considering the

successive bail application.

8. As held by the Apex Court in the State of

Maharashtra v. Captain Buddhikota Subha Rao

(supra) that successive bail application can be

entertained by the Court when substantial change is

established by the accused, which would entitle him

for getting bail in successive bail application. The

Court should not pass the order of releasing him on

bail in successive bail application merely establishing

some cosmetic change between time gap of two

applications. There should be drastic change during

the period between two applications, which would

entitle the accused for bail.

9. In case of Kalyan Chandra Sarkar (supra), the

Honble Apex Court has held that the Court before

entertaining such successive bail application must

consider the reasons and grounds on which the

earlier bail applications were rejected. When a

successive bail application comes before the Court, it

is the duty of the Court to record that what are the

fresh grounds, which persuade it to take a view

different from the one taken in the earlier application.

In the case of Rajubhai Pithabhai Vala (supra), this

Court by relying upon the numerous judgements

rendered by the Apex Court, has held that successive

bail application must be considered with care and

caution and not in all cases. The discretion should be

exercised in very good and deserving cases quite

sparingly and not as a matter of course.”[ 7 ]

I have heard the learned counsel for the parties and

perused the case-diary as well as gone through their written

submissions.

The facts and the statements of the prosecutrix under

Sections 161 & 164 of the Cr.P.C. need not be discussed in the

present bail application as the same have been dealt with in detail

in the first bail application.

This is second bail application. The first bail application of

the petitioner was rejected by this Court on merits vide order dated

01.10.2013. It is true that there is no change in the circumstances

except that the charge-sheet has been filed. The argument raised

by learned Senior Counsel in the present case that the allegation

of rape is not corroborated by medical evidence and also the

argument that even if the allegations are taken on their face value

and the accusations as levelled under the three different

enactments of Juvenile Justice Act and Protection of Children from

Sexual Offences Act, 2012 as also under the Indian Penal Code

are not made out, was also dealt with while dismissing the first bail

application.

In any case, since the learned Senior Counsel has once

again greatly stressed that the offence as alleged is not made out,

it has become necessary to go over it once again.

Penetrative sexual assault as defined under Section 3 of the

Protection of Children from Sexual Offences Act reads as under:-

5

“3. Penetrative sexual assault.- A person is said to

commit “penetrative sexual assault” if-[ 8 ]

(a) he penetrates his penis, to any extent, into the

vagina, mouth, urethra or anus of a child or makes the

child to do so with him or any other person; or

(b) he inserts, to any extent, any object of a part of

the body, not being the penis, into the vagina, the

urethra or anus of the child or makes the child to do

so with him or any other person: or

(c) he manipulates any part of the body of the child

so as to cause penetration into the vagina, urethra,

anus or any part of body of the child or makes the

child to do so with him or any other person: or

(d) he applies his mouth to the penis, vagina, anus,

urethra of the child or makes the child to do so to such

person or any other person.”

In the instant case, the prosecutrix alleged that petitioner

had tried to force her to perform oral sex. Thus, the said allegation

is covered under the definition of penetrative sexual assault given

in Section 3(d) of the aforesaid Act as well as under Section 375

(A) IPC of the Amended Act of 2013.

The argument that the prosecutrix was not under the control

or custody of the petitioner or that the said incident did not happen

in the institution where she was studying, too does not help the

petitioner. The prosecutrix was studying in an institution run by

trust, of which, the petitioner was Managing Trustee. The offence

took place at Jodhpur in an ashram alleged to be a place used for

giving religious discourse to public at large belongs to the

petitioner.

Charge-sheet has been filed under Section 5(F)/6, 5(G)/6,

7/8 of the Protection of Children from Sexual Offence Act. Section

5(F) reads as under:-[ 9 ]

“5. Aggravated penetrative sexual assault.-

(a) ..... ...... .....

(b) ..... ...... .....

(c) ..... ...... .....

(d) ..... ...... .....

(e) ..... ...... .....

(f) Whoever being on the management or staff of

an educational institution or religious institution,

commits penetrative sexual assault on a child in

that institution;”

For the offence above, the punishment is prescribed under

Section 6, which is for a term not less than 10 years and may

extend to imprisonment for life .

The prosecution has collected evidence to show that the

prosecutrix was brought to the religious place under the pretext of

treating her and freeing her from all evil spirits resulting into

offence under Section 370(4). I have already said in my earlier

order that the offence becomes more severe and invites more

serious repercussions, if it is committed by a person whose public

image is of a god man, a saint, who is worshiped by the victim's

own family and committed the same under the garb of giving

'treatment'. The prosecutrix herein is minor and her stand is

consistent. The statement of the prosecutrix under Section 164 of

the Cr.P.C. cannot be ignored in view of the provision of Section

114-A of the Indian Evidence Act, 1872. There is no reason for her

to make any false allegation against the petitioner.

There is no dispute with the provision of law that it would be

improper for any court to refuse bail to a person who is undergoing

trial only for the purpose of giving him a taste of imprisonment as a

lesson. However, we can also not lose sight of the judgment[ 10 ]

rendered by Hon'ble the Apex Court in the case of Babu Singh Vs.

State of U.P., reported in 1978 SCC (Cri) 133 and duly relied

upon in the case of Sanjay Chandra's case (supra) as under:-

“16. Thus the legal principle and practice validate the

Court considering the likelihood of the applicant

interfering with witnesses for the prosecution or

otherwise polluting the process of justice. It is not only

traditional but rational, in this context, to enquire into

the antecedents of a man who is applying for bail to

find whether he has a bad record--particularly a

record which suggests that he is likely to commit

serious offences while on bail. In regard to habituals,

it is part of criminological history that a thoughtless

bail order has enabled the bailee to exploit the

opportunity to inflict further crimes on the members of

society. Bail discretion, on the basis of evidence

about the criminal record of a defendant, is therefore

not an exercise in irrelevance.”

Similarly, in the case of Chaman Lal Vs. State of U.P. &

Another, reported in 2004 Supreme Court Cases (Cri) 1974,

guidelines are laid down for considering certain circumstances

before granting bail. Para 9 of the same reads as under:-

“9. There is a need to indicate in the order, reasons

for prima facie concluding why bail was being granted

particularly where an accused was charged of having

committed a serious offence. It is necessary for the

courts dealing with application for bail to consider

among other circumstances, the following factors also

before granting bail, they are:

1. The nature of accusation and the severity of

punishment in case of conviction and the nature of

supporting evidence;

2. Reasonable apprehension of tampering of the

witness or apprehension of threat to the complainant;

3. Prima facie satisfaction of the Court in support of

the charge.”

Thus, while granting bail, the Court is required to exercise[ 11 ]

its jurisdiction in a judicial manner and not as a matter of course.

In view of the above discussion, besides the gravity of the offence,

the vital fact which needs to be gone into is the likelihood of the

petitioner giving out threats and inducement to the witnesses and

tampering with the evidence.

Dr.Pushpendra Singh Bhati, learned Additional Advocate

General submitted that the prosecutrix and her family members

are being threated by the supporters of Asa Ram. As a result, she

and her family members are under constant security. Learned

Additional Advocate General has placed on record the copy of

following FIRs registered against the supporters of Asa Ram for

trying to stop the police from performing its duty and creating law

and order problem:-

S.

No.

Particulars of

FIRs

Complainant Against Offences

1 FIR No.43 dt

18.1.2014, P.S.

Udai Mandir,

Jodhpur

Khaneya Lal

Prajapat

Supporters

of Asa Ram

U/Ss 143/341/323/504

IPC

2 FIR No.455 dt.

1.9.02013

P.S. Mahamandir

Jodhpur

Kamal Singh,

Circle

Inspector

Rajesh

Sharma and

14 Ors.

U/Ss

143/341/323/353/332/

225/120-B of the IPC

and U/s 3 of PDPP Act.

3 FIR No.101 dt.

31.8.2013, P.S.

Jodhpur West.

Bhawani

Singh S/o

Prabhu Singh

Bharat Bhai

& 10

others.

U/S

147/148/149/307/395/42

7 of the IPC.

Following complaints under Section 151 of the Cr.P.C. are

registered against a large number of supporters of Asa Ram:-[ 12 ]

S.

No.

Particulars of Complaint Police Station Number of persons

arrested/ restrained

1 359/2014, dt. 17.1.2014 Udai Mandir,

Jodhpur (Metro)

12 persons

2 Nil (113/228), dt.

21.12.2013

do 16 persons

3 199/2014, dt. 8.1.2014 do 4 persons

4 1119/2013 dt.

19.12.2013

do 13 persons

5 11189/2013 dt.

19.12.2013

do 14 persons

6 11190/2013 dt.

19.12.2013

do 13 persons

7 10411/2013 dt.

16.11.2013

do 02 persons

8 10410/2013, dt.

16.11.2013

do 21 persons

9 16/2013 Boranda, Jodhpur 13 persons

10 357/2014, dt. 171.2014 Udaimadir

Jodhpur

09 persons

11 355/2014, dt. 17.1.2014 do 17 persons

12 354/2014, dt. 17.1.2014 do 10 persons

13 358/2014, dt. 17.1.2014 do 08 persons

14 176/2013, dt. 16.11.2013 Mahamandir,

Jodhpur

21 persons

Besides the above, the principal of the school, who has

issued the certificate verifying the date of birth of the prosecutrix,

has also registered FIR No.220/2013 dt. 21.9.2013 at

Shahjahanpur (U.P.) alleging that he was being threatened with

dire consequences. Mahendra Chawla, one of the prosecution

witness, has also submitted a complaint before the Investigating

Officer Ms. Chanchal Mishra, ACP, Jodhpur stating that he is

being threatened with false implication in various cases, in case,

he gives evidence against Asa Ram. It is submitted that another

FIR has been registered in the State of Gujarat against the son of

the petitioner for trying to give bribe of 13 crores to the police. In[ 13 ]

the said FIR, the allegations are also alleged against the present

petitioner. A threatening letter has also been received by Mr.Manoj

Vyas, District & Sessions Judge who is dealing with the case in

the month of September, 2013. The reports with respect to threats

being received by witness-Ajay Kumar and one Ajay Gautam

(applicant in PIL NO.11372/2013 in which he sought investigation

of this case from CBI) have also been placed on record.

Apprehension is expressed by the State and the learned

counsel for the complainant that the petitioner, who has both the

backing of a large following and money power, is likely to use the

same to win over the witnesses and tamper with evidence.

Moreover, the right of the petitioner for speedy trial as

guaranteed to an accused for protection of personal liberty under

Article 21 of the Constitution of India stands safeguarded by the

Coordinate Bench of this Court in S.B.Criminal Misc. Bail

Application No.8609/2013 (Shiva @ Savaram Vs. State of

Rajasthan) and S.B.Criminal Misc. Bail Application No.8610/2013

(Sanchita Gupta @ Shilpi Vs. State of Rajasthan) vide common

order dated 8.11.2013 directing the trial court to proceed with the

trial on day to day basis till its conclusion in view of Section 309 of

the Cr.P.C. amended by the Parliament vide the Criminal Law

(Amendment) Bail, 2012 i.e. Bill No.63 of 2013 that in a case of

rape, every trial must be concluded within a period of two months

from the date of filing the charge-sheet while observing as under:-

“One of the accused in the present case, is

perceived as a Godman and wields a lot of influence

as he is having a very large following. As to who can

be termed influential in public life, Law Commission in[ 14 ]

its report observed as under :

“3. Influential persons in public life – illustrative

list. The question whether the term ‘influential

person in public life’ needs to be defined has

engaged the attention of the Law Commission.

The Commission feels that such definition is

not feasible and it does not serve any purpose.

The influential persons are not merely those

who are holding or who have held public

offices; even their henchmen and close

relations, the rich and powerful and men with

muscle power having links with one or the

other political party are quite influential in their

own way and they have the potential to create

stumbling blocks for smooth investigation and

effective trial. Moreover, it is not desirable to

give too much of an expansive meaning to this

term so as to 13 include elected

representatives at the Panchayat level or all

the office-bearers of various political parties. To

specify with precision the term ‘influential

person in public life’ is a complex task. It is a

wide and nebulous term. The whole object of

specifying influential persons in public life as a

category is to enable the Police and Judicial

Officers concerned to keep track of cases

involving such persons and to endeavour

avoidance of delays and bottlenecks in the way

of speedy investigation and trial.”

It is to be noted that in the State of Rajasthan,

Special Courts have been created for trial of offences

against woman. A court too, to this effect has also

been established at Jodhpur.

Thus noticing the necessity of speedy trial, this

Court directs the trial court to proceed with this case

from 16.11.2013 onwards and decide the issue

whether cognizance is to be taken against the

accused or not and if so, for what offences ? The trial

court shall without any interruption and hindrance

proceed with the trial on day to day basis till its

conclusion so that the speedy trial is ensured.”

In view of the above, this Court is of the opinion that

enlarging the petitioner on bail would impede the progress of the

trial. Moreover, as stated earlier, the prosecutrix and her family

members, who are presently living under constant threat and fear,[ 15 ]

require protection and re-assurance. Hence, this Court is not

inclined to release the petitioner on bail.

The second bail application is, accordingly, dismissed.

 (NIRMALJIT KAUR), J.

Narendra, PA