Ravi Krishna Naidu Vs the State of Maharashtra and Anr.

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abs

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 CRIMINAL APPELLATE JURISDICTION

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 CRIMINAL APPLICATION NO. 203 OF 2008

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 Ravi Krishna Naidu .. Applicant

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V/s

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 The State of Maharashtra & Anr. .. Respondents

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 Mr.A.P. Mundargi i/b Mr.S.P. Hulyalkar for the
 applicant.

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 Mr.K.V. Saste, A.P.P. for the State.

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 Mr.S.D. Rupwate for the original complainant.

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 CORAM : D.G. KARNIK, J.

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 DATE : 1ST FEBRUARY 2008

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P.C. :

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 1. Heard the learned counsel for the applicant and

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 the learned A.P.P. for the State. I have also granted
 leave to the counsel for the complainant to appear in
 the matter and heard him.

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 2. The applicant seeks pre-arrest bail under

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 section 438 of the Code of Criminal Procedure in
 connection with an offence registered with Wanwadi

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 Police Station, Pune under C.R. No.559/2007 for the
 alleged offence punishable under sections 341, 363,
 366A, 354, 376, 506 read with 34 of the Indian Penal
 Code.

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 3. The previous application of the applicant (Bail
 Application No.3933 of 2007) has been rejected by the
 Adhoc Additional Sessions Judge No.7, Pune vide order
 dated 17th January 2008. The applicant has therefore
 approached this court for grant of bail.

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 4. The complainant is a young girl though
 admittedly above 16 years of age. On 25th December
 2007, the complainant lodged a First Information Report
 (FIR) with Wanwadi Police Station, Pune alleging the
 offence. According to the complainant, on 30th March
 2007, she was taken to the farm house of the applicant
 at Sopanbag, Ghodpadi, Pune by her maternal uncle. The
 purpose of visit was that the complainant was previously
 told by the applicant that she would be given a role of
 an actress in a cinema. The applicant took her to the
 first floor under the pretext of a screen test. There,
 the complainant was raped against her wish by the
 applicant while her maternal uncle was sitting on the
 ground floor. The complainant then came on the ground
 floor and narrated the incident to her uncle who told

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 her not to complain and not to disclose the incident
 even to her mother. On the next day, the complainant
 accompanied the applicant to his flat in Vinit Tower
 Society, Juhu, Mumbai. The applicant returned from work
 at 8.30 p.m. and took the complainant for dinner in a
 hotel "Taba" at Juhu Link Road. After they returned
 home, the complainant slept in the room of the applicant
 where she was again raped. In the similar manner she
 was raped for 4 days during day and night on 7-8
 occasions. The FIR is silent what happened between
 first week of April 2007 and the last week of July 2007.
 In the FIR, the complainant then stated that on 28th
 July 2007, she and the applicant went to Hyderabad and
 stayed in a bungalow of Rishi at Road No.12, Opp. the
 house of Ram Gopal Verma. The air ticket for travel to
 Hyderabad was purchased showing the name of the
 complainant as Rekha Ravi Naidu, i.e. wife of the
 applicant. It is alleged that even at Hyderabad, she
 was subjected to forcible intercourse. In the FIR, the
 complainant has further alleged that after they returned
 to Mumbai, in the first week of August 2007 some other

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 persons also attempted to act fresh with her but she
 resisted. The complainant has stated that she then
 stayed together with the applicant till the conclusion
 of the Ganpati festival (September 2007) and during that
 time also, the applicant had forcible intercourse with

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 her on several occasions. In the last paragraph of the
 FIR, the complainant has alleged that the applicant had
 intercourse with her by deceiving her that she would be
 given a role of an actress in a cinema.

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 5. Bare perusal of the complaint would disclose
 that the complainant has alleged that the applicant had
 intercourse with her on several occasions between 30th
 March 2007 and the end of September 2007. The
 complainant was promised a role in the cinema. Though
 the complainant has not specifically stated that she
 gave consent for the intercourse on account of false
 promise of a role in a cinema but has stated that each
 time the intercourse was against her wish, the fact
 remains that the complainant never complained about the
 alleged forcible intercourse either to the police or to
 anybody else except once to her maternal uncle. The FIR
 does not disclose that the complainant was detained
 against her wish; she was openly going with the
 applicant at public places and even to different cities.
 She was given several presents including a mobile
 telephone by the applicant. The FIR prima facie shows
 that the intercourse on each occasion was with the
 consent of the complainant and it appears that the
 complaint has been made only after the complainant was
 not given a role as an actress in the cinema as was

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 allegedly promised to her. Whether there was any such
 promise and whether the consent for intercourse was
 obtained under a false promise is a question of fact
 which can be decided only at the trial. I am prima
 facie of the opinion that this does not appear to be a
 case of intercourse without consent.

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 6. Learned counsel for the complainant submitted
 that this is not a fit case for grant of pre-arrest bail
 as custodial investigation is necessary into the alleged
 offences committed in different cities, viz. Mumbai,
 Pune and Hyderabad. He relied upon a decision of the
 Supreme Court in C.B.I. v. Anil Sharma, reported in
 (1997) 7 SCC 187, wherein it is observed thus:-

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 "6. We find force in the submission of the
 CBI that custodial interrogation is
 qualitatively more elicitation-oriented than
 questioning a suspect who is well ensconced with
 a favourable order under Section 438 of the

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 Code. In a case like this effective
 interrogation of a suspected person is of
 tremendous advantage in disintering many useful

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 information and also materials which would have
 been concealed. Success in such interrogation
 would elude if the suspected person knows that

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 he is well protected and insulated by a pre
 arrest bail order during the time he is
 interrogated. Very often interrogation in such a
 condition would reduce to a mere ritual. The
 argument that the custodial interrogation is
 fraught with the danger of the person being
 subjected to third-degree methods need not be
 countenanced, for, such an argument can be
 advanced by all accused in all criminal cases.
 The Court has to presume that responsible police
 officers would conduct themselves in a
 responsible manner and that those entrusted with
 the task of disintering offences would not
 conduct themselves as offenders."

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 The above observation has also been referred to by a
 learned Single Judge of this Court in his decision in
 State of Maharashtra v. Ananda Tukaram Akale, reported
 in 2008 ALL MR (Cri.) 1.

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 7. It is true that the custodial interrogation is
 often necessary as it may be qualitatively different
 from the interrogation carried out when the person is
 armed with an order of anticipatory bail in his pocket.
 Custodial interrogation would be necessary if the
 allegation of the complainant is to be believed that the

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 intercourse was without consent. Here, as I have
 stated, the intercourse appears to be with the consent
 of the complainant. The only question is whether the
 consent was obtained under the false promise as alleged
 by the complainant. In the circumstances, it cannot be
 said that the case is such that custodial interrogation
 of the complainant would result into collection of
 qualitatively different evidence. Hence, in my view,
 the custodial interrogation is not necessary in the
 present case.

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 8. There is one more aspect that there is
 considerable delay in lodging of the FIR. The first
 offence, according to the complainant, took place on
 30th March 2007. The incident was immediately narrated
 by her to the maternal uncle. Thus, the complainant was
 not helpless girl without any aid at that point of time.
 The incident could have been reported to the police
 immediately thereafter. Even there were several
 occasions when the complainant could have reported to
 the police. The applicant had provided a mobile phone
 to the complainant. She was also taken out at public
 places and she had an ample opportunity of complaining
 and yet she did not complain to anyone nor did she lodge
 a FIR.

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 9. I am aware that ordinarily the orders in matters
 of bail are to be short. However, the learned Sessions
 Judge, while rejecting the application for anticipatory
 bail, has elaborately considered the facts and material
 on record. Further more, learned counsel for the
 complainant took me through several passages from the
 FIR and it would be therefore inappropriate not to refer
 to the matters to which my attention was drawn not only
 by the A.P.P. but also by the learned counsel for the
 complainant. It is however clarified that the
 observations made in this order are only prima facie and
 the Sessions Court, at the time of trial, should not
 take them into consideration. With these clarification,
 I pass the following order:

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ORDER

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 In the event of the arrest of the applicant in
 connection with the crime registered with Wanwadi Police
 Station, Pune under C.R. No.559/2007, he shall be
 released on bail on executing personal bond of
 Rs.50,000/- together with two sureties of the like
 amount subject to the following conditions:-

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 (a) The applicant shall not make any contact with
 the complainant nor shall he make any inducement or

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 threats to the complainant or to any of the prosecution
 witnesses.

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 (b) The applicant shall cooperate with the
 investigation and attend the concerned police station
 initially once a week on every Monday between 10.00 a.m.
 and 12.00 noon for a period of 8 weeks and shall
 thereafter attend the concerned police station once a
 month between 1st and 5th of every British calendar
 month till the filing of the charge sheet. The
 applicant shall also attend the concerned police station
 as and when specifically summoned by the police.

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 (c) This order shall come to an end after the charge
 sheet is filed whereupon the applicant may apply for

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 regular bail before the regular court.

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 (D.G. KARNIK, J.)

Ravi Krishna Naidu v. the State of Maharashtra and Anr.

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Ravi Krishna Naidu v. the State of Maharashtra and Anr.

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