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2014 Supreme(Bom) 1757
High Court of Judicature at Bombay
SADHANA S. JADHAV, J.
Deepak Yashwant Ghusekar & Another
Versus
State of Maharashtra
Criminal Anticipatory Bail Application No. 1157 of 2014
Decided on : 16-09-2014
For the Applicants:Rajiv Patil, Sr. Advocate a/w. C.K. Pendse i/b. C.A. Malgaonkar, Advocates.
For the Respondent: D.P. Adsule, APP.
The main legal point established in the judgment is the consideration of prima facie evidence and the grant of pre-arrest bail in the absence of incriminating material against the applicants.
Headnote:
Section 438 - Pre-arrest Bail - The court granted pre-arrest bail to the applicants who were apprehending arrest for offences under various sections of the Prevention of Immoral Trafficking Act, 1956 and the Protection of Children from Sexual Offences Act, 2012. The court noted that there was no evidence against the applicants except for the statement of a witness, and that the applicants had made out a prima facie case for grant of pre-arrest bail.
Fact of the Case:
The applicants were apprehending arrest for offences under various sections of the Prevention of Immoral Trafficking Act, 1956 and the Protection of Children from Sexual Offences Act, 2012. The victim alleged that she had been induced into sexual acts and forced into the flesh-trade by her cousin's friend, who happened to be a juvenile in conflict with the law.
Finding of the Court:
The court granted pre-arrest bail to the applicants, noting that there was no evidence against them except for the statement of a witness, and that the applicants had made out a prima facie case for grant of pre-arrest bail.
Issues: The main issue was whether the applicants should be granted pre-arrest bail in light of the allegations against them.
Ratio Decidendi: The court considered that there was no evidence against the applicants except for the statement of a witness, and that the applicants had made out a prima facie case for grant of pre-arrest bail.
Final Decision: The court allowed the application and granted pre-arrest bail to the applicants on certain conditions.
1. Heard the learned Counsel for the applicants and the learned APP for State. Perused the papers.
2. This is an application under Section 438 of the Code of Criminal Procedure, 1973. The applicants herein are apprehending their arrest in Crime No.95 of 2014 registered at Arnala Sagari Police Station for offence punishable under Section 376, 376(D), 366(A) read with Section 3,4, 5, 7(1)(A) of the Prevention of Immoral Trafficking Act, 1956 and Section 4 and 8 of the Protection of Children from Sexual Offences Act, 2012.
3. On 16/7/2014 Ms. X lodged a report at the police station alleging that that she has been induced by her maternal cousin to go alongwith some boys on different occasions and that friend of her cousin namely Simran had forced her into sexual acts. She was fully aware that the said customers were paying consideration to Simran. Simran happens to be a juvenile in conflict with law. The date of birth of the complainant is 15th April, 1998. According to the victim, she was forced into the flesh-trade from June, 2014. She has completed 16 years of age. She has stated several instances in the first information report. According to her, finally she had informed her mother about the same and then lodged the report.
4. It is pertinent to note that the applicants herein have not been named in the first information report. In the course of investigation, the Investigating Officer has recorded the statement of one Jagdish Koli on 29th July, 2014 that the said witness had accompanied the present applicants to Ganeshpuri. They had booked room No.29. On 10/7/2014 he had been to Ganeshpuri alongwith the present applicants. He had gone for swimming and when he returned, he saw that the present applicants alongwith other accused as well as victim were singing songs and dancing at about 8.30 p.m. According to the witness, he had thereafter been to attend programme of Bhajan in the temple.
5. Besides this, the Investigating Officer has also recorded the statement of the watchman of the said room and he has also disclosed that on that day he had seen a group of boys and girls enjoying on the tune of music. They were drinking and having fun. On the basis of the said statement the applicants are being apprehended by the police. In the first information report the victim has given the date of incident at Ganeshpuri as 9/7/2014, whereas the witness has stated the date as 10/7/2014.
6. The learned Sr. Counsel representing the applicants submits that the victim was fully aware that her cousin is being given consideration for introducing the victim to the said boys. According to the learned Senior Counsel there is no evidence against the present applicants except the statement of the witness who had accompanied the accused applicants to Ganeshpuri. There is no punishment contemplated for the customer under the PITA. Learned Senior Counsel further submits that since the boys and girls were enjoying, it cannot be said at this stage that it is against the will of the victim. However, under the Protection of Children from Sexual Offences Act, the victim would still be a child. Hence, according to the learned Senior Counsel, there is no incriminating material against the present applicants to even remotely indicate that they had taken disadvantage of the victim with the knowledge that she was a minor girl. The name of the applicants does not appear in the FIR. Hence, the applicants have made out a prima facie case for grant of prearrest bail.
7. The observations made hereinabove are prima facie in nature and shall not be taken into consideration at the trial of the present case. Hence the following order :
ORDER
(i) The application is allowed. In the event of arrest in Crime No.95 of 2014 registered at Arnala Sagari Police station, the applicants-Deepak Yashwant Ghusekar and Mahesh Yashwant Ghusekar be enlarged on bail on furnishing P.R. bond in the sum of Rs.15,000/- each and one or two sureties in the like amount.
(ii) The appli
