Allowed

Sachin Prakashbhai Patil @ Sonavane @ Sonu v. the State of Maharashtra

Bombay HC27 Sept 2021BA/428/2021

Case brief

AI extract

What is this about?

In a bail application under CrPC, the High Court of Bombay at Criminal Appellate Jurisdiction released the applicant after finding he had been in custody for over five years with no trial progress, noting attempts to video confer the victim residing in Bangladesh failed.

What did the court decide?

Bail granted on Rs. 25,000 bond with sureties or provisional cash bail; applicant to report to police station quarterly.

Sachin Prakashbhai Patil @ Sonavane @ Sonu Vs… — Child Sexual Offences (POCSO) | Bombay HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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BAIL APPLICATION NO.428 OF 2021

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Sachin Prakashbhai Patil @ Sonavane @ Sonu .. Applicant Versus

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The State of Maharashtra

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.. Respondent

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Ms.Saili N. Dhuru,Advocate for the Applicant. Mr.Y.Y.Dabake, APP for the Respondent – State.

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CORAM : PRAKASH D. NAIK, J. DATED : SEPTEMBER 27, 2021.

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P.C. :

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Digitally signed by RAJESHRI RAJESHRI PRAKASH PRAKASH AHER AHER Date: 2022.01.05 16:29:49 +0530

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This is an application for bail. The applicant is arrested on 14^th August, 2016, in connection with C.R.No.I–137 of 2016, registered with Vasai Road Police Station, District–Thane, for ofences punishable under Sections 328, 361, 366(B) , 376, 341, 372 and 373 read with 34 of Indian Penal Code (“IPC”, for short) , Sections 4, 6, 17 of Protection of Children from Sexual Ofence Act, 2012 (“POCSO Act”, for short), and Sections 3, 4, 5 , 6 and 7 of Protection of Illicit Trafic Act (“P.I.T.A Act”, for short),.

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The case of the prosecution is that the victim is from

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Bangladesh. She got acquainted with one boy aged about 22 years. She fell in love with him. On 19^th May, 2016, the said boy gave her some tablets. She lost her consciousness. She was brought to Hawrah railway station. Thereafter, she was taken to Surat. Her boyfriend also came to Surat. She was forced to indulge into prostitution. The applicant had forceful physical relationship with her. She was threatened. She was confned to the room. She was sexually assaulted by accused. First Information Report (“FIR”, for short), was lodged against other persons. The victim was minor aged about 16 years.

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3 The previous application preferred by the applicant was disposed of vide order dated 27^th September, 2018. Since the Court was not inclined to grant bail, the application was withdrawn. It was prayed that the trial may be expedited since the accused is in custody from 14^th August, 2016. Learned APP submitted that the prosecution intends to examine about 33 witnesses, and, the evidence of the victim will be recorded through video conferencing. It was submitted that the victim is not available within the jurisdiction of the trial Court. She is at Bangladesh. By order dated 27^th September, 2018, the trial Court was directed to make an endeavour to expedite trial and conclude

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the same within a period of one year from the date of receipt of order. In the event trial is not concluded within one year, the applicant was granted liberty to prefer application for bail.

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4 Learned advocate for the applicant submitted that, although the trial was expedited, there is no progress in the trial. The evidence of the victim is not recorded. The applicant is in custody for more than fve years. The victim is at Bangladesh. Inspite of repeated directions, her evidence is not recorded. Other witnesses are also not examined, except one witness whose evidence was recorded in 2016. The co-accused are granted bail.

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5, This application was listed for hearing on 5,^th March, 2021. At the request of learned APP, it was adjourned to 18^th March, 2021, to enable him to take instructions. Thereafter, it was adjourned to 31^st March, 2021. The application was then listed on 11^th June, 2021, and, at the request of learned APP, it was adjourned to 16^th June, 2021. On the next date of hearing i.e. 16^th June, 2021, learned APP sought time to take instructions about the status of trial. It was noted that the victim is from Bangladesh. The applicant is in custody for fve years. By way of last chance, at the request of learned APP, the application was

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adjourned to 23^rd June, 2021. On the next date of hearing i.e. on 23^rd June, 2021, learned APP on the instruction from the police oficer present in the Court submitted that attempt was made to record the evidence of the victim through video conferencing. The victim is at Dhaka. Due to technical dificulties, her evidence could not be recorded and the case is posted before the trial Court for recording evidence on 5,^th July, 2021. Hence, the application was adjourned to 9^th July, 2021. Thereafter, the application was adjourned to 17^th August, 2021. The application was heard on 26^th August, 2021, and, posted on 31^st August, 2021. Vide order dated 31^st August, 2021, it was observed that the previous application was disposed of by order dated 27^th September, 2018, with liberty to the applicant to prefer fresh application for bail in the event the trial is not concluded within one year. The prosecution had submitted that charge has been framed and the evidence of the victim who is at Bangladesh would be recorded through video conferencing. However, since last three years the evidence of the victim has not been recorded. This application is listed for hearing on several occasion. Time was sought at the request of prosecution to take appropriate instructions. Though it was submitted by the prosecution that the evidence of the victim would be recorded through video

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conferencing, it has not been recorded. It is clear that the victim is not available to depose before the Court physically or through video conferencing. The accused is in custody for fve years. There is no progress in the trial. Vague explanation is given by the concerned oficer for not recording the evidence of the victim. It is not clear as to why the evidence of other witnesses have not been recorded for a period of fve years. Trial Court was requested to submit the report about the status of the trial. The investigating oficer was directed to fle afidavit indicating steps taken by him to produce the witnesses before the Court or to make arrangement for recording evidence of the victim. The application was then listed on 14^th September, 2021. The report from the trial Court was awaited. In order dated 14^th September, 2021, it was recorded that, learned APP submitted that the investigating oficer is present in the Court. He has recently taken over the charge of the matter. Previous investigating oficer has retired. The new investigating oficer could not take instructions from the previous investigating oficer and concerned public prosecutor appearing in the trial Court. He sought time to fle afidavit. Investigating oficer was permitted to fle afidavit in consonance with previous order dated 31^st August, 2021. He was directed to take instructions about the status of the case and

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steps taken by the prosecution for examination of victim and other witnesses. The application was than listed for hearing on 23^rd September, 2021. The report dated 23^rd September, 2021, was received from trial Court. In the said report, it was stated that charge was framed against all accused on 19^th March, 2018. One witness was examined on 23^rd March,2019. Further examination of the said witness was deferred. Witness summons was issued to victim, resident of Bangladesh on 18^th May, 2018, 21^st September, 2018, 14^th December, 2018 and 21^st February, 2019, and, the report is awaited.

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6 Although on the previous dates of hearing, it was submitted by the prosecution that attempts are made to record the evidence of the victim through video conferencing and on one occasion, the evidence through video conferencing could not be recorded due to technical dificulty, and, the report of the trial Court is completely silent in that regard. The report, however, mentions that summons on several occasions were issued to the victim and the reports are awaited. The last summons is dated 21^st February, 2019. The investigating oficer fled afidavit dated 22^nd September, 2021. In the said afidavit, it was stated that 13 accused are chargesheeted. Examination–in–chief of one witness

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is recorded on 13^th March, 2019. His cross–examination is yet to be recorded. The application for witness summons to other witnesses are fled in the Court. Due to pandemic, the trial could not proceed. The victim is from Bangaladesh, and, she was not available on video conferencing for the purpose of recording–in– chief examination and cross examination. The report submitted by the prosecutor through senior inspector of police has been annexed to the afidavit. The report of the public prosecutor mentions that the victim has been sent to Bangladesh. Several attempts were made to record her evidence through video conferencing. However, the victim was not available for recording evidence. Her evidence is not yet recorded. One witness has been examined by the prosecution.

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7 In the light of the aforesaid factual aspects, it is clear that although it was submitted while disposing of the application preferred by the applicant, vide order dated 27^th September, 2018, that the victim would be examined through video conferencing, her evidence could not be recorded. Three years have passed after the directions to conclude the trial expeditiously, were issued by this Court. The afidavit of the investigating oficer and the report of learned APP indicate that,

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attempts of recording the evidence of victim who is at Bangladesh was not successful. The report of the trial Court is silent about recording the evidence of the victim through video conferencing. However, it refers to the summons issued to victim on several occasion, and, the service is awaited. Although the accused is in custody from 2016, the prosecution has apparently so far examined one witness. The applicant had continued to be in custody from 14^th August, 2016. He is in jail for a period of about fve years.

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8 Although provisions of POCSO are involved in this case. In the factual aspects of this matter,since the victim is at Bangladesh and several summonses issued to her were not reported to be served. It is submitted that notice could not be issued to her for hearing of this application. It is noted that accused is in custody since more than fve years.

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9 Learned counsel for the applicant has relied upon decision of Apex Court in the case of Anuj Chavan Vs. State of Maharashtra, dated 5^th March, 2021 , wherein the accused was granted bail taking into consideration the totality of the facts and circumstances of the case and more particularly the fact that the

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accused has sufered in custody for almost three years. Learned advocate for the applicant then relied upon the order passed by the Sessions Court granting bail to the co-accused Bhaveshabai Joshi , vide order dated 15,^th February, 2017, Mohad. Mollha Vs. State (Vasai Road Railway Police Station) , vide order dated 17^th December, 2019, Dinesh Gurjar vide order dated 15,^th February, 2017, Mirza Ali Nuruddinbhai Mithani vide order dated 7^th November, 2016, who was the co-accused in the present case. Reliance is placed on the decision of the Apex Court in the case of Vivek Kumar Vs. State of Uttar Pradesh¹ , wherein accused was granted bail on the ground that he was languishing in jail without trial. Reliance is also placed on the decision of the Apex Court in the case of Baaba alias Shankar Raghuman Rohida² . The accused therein was prosecuted under the provisions of TADA. He was granted bail by the Apex Court on the ground that he was in jail for substantial period of time. The applicant also relied on judgment of Supreme Court in the case of Paramjit Singh Vs. State (NCT of Delhi)³ , wherein bail was granted to the accused on the ground that the trial is not concluded although the accused was in custody. Learned counsel also relied on the decision of the Apex Court in the case of

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1 (2000) 9 SCC 443

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2 (2005) SCC 569

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3 (1999) 9 SCC 252

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Shaheen Welfare Association Vs. Union of India and Ors.⁴ , Union of India Vs. K.A. Najeb⁵ , Angela Sontakke Vs. State of Maharashtra⁶ , and, order dated 3^rd December, 2020, passed by the learned Single Judge of this Court in Criminal Bail Application No.235,5, of 2019, wherein bail was granted on the ground of prolonged custody.

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10 Learned APP submitted that the ofence is of serious nature. Although the evidence of the victim and other witnesses could not be recorded, bail may not be granted to the accused.

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11 It is noted hereinabove that the applicant is in custody from 14^th August, 2016. It is not clear as to when and how the evidence of the victim and other witnesses would be recorded. Evidence of examination of only one witness is recorded. The applicant cannot be incarcerated into custody for indefnite period. Inspite of directions expediting trial, there is no progress in trial. The evidence of victim was to be recorded three years ago. Attempts were made to do so. However, till today it has not been recorded. Hence, bail can be granted to applicant.

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4 (1996) 2 SCC 616

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5 (2021) 3 SCC 713

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6 (2021) 3SCC 723

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12 Hence, I pass the following order:

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:: O R D E R ::

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(i), Bail Application is allowed and disposed of;

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(ii), The applicant is directed to be released on bail in connection with CR No.I-137 of 2016 registered with Vasai Road Police Station, District Thane, on executing PR bond in the sum of Rs.25 , 000/-, with one or more sureties in the like amount;

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(iii), The applicant shall report Vasai Road Police Station once in three months on frst Saturday of the month between 11:00 a.m. and 1:00 p.m. till further orders;

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(iv), The applicant shall not tamper with evidence;

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(v), The applicant is permitted to furnish provisional cash bail in the sum of Rs.25 , 000/-, for a period of eight weeks, in lieu of sureties.

Sachin Prakashbhai Patil @ Sonavane @ Sonu v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Sachin Prakashbhai Patil @ Sonavane @ Sonu v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

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