Shri Asharamji Bapu vs State
| Citation | S.B.CRIMINAL MISC.BAIL APPLICATION NO.7115/2013 |
| Date of Judgment | 03 November 2016 |
| Court | Rajasthan High court – Jodhpur |
| Case Type | CRIMINAL MISC.BAIL APPLICATION NO.7115/2013 |
| Appellant | Aasharam bapu |
| Respondent | State of Rajasthan |
| Bench | HON’BLE MR. JUSTICE P.K. LOHRA , Mr. M.R. SINGHVI, Sr. Advocate with Mr. BHAVIT SHARMA, |
| Referred | Section – 370(4), 342, 354-A, 376(2)(f), 376-D, 506, 509/34 and 120-B |
FACTS OF THE CASE
A Jodhpur court is all set to pronounce its verdict in a 2012 rape case against self-styled godman Asaram Bapu. Asaram Bapu, who has been in jail since August 31, 2013, was charged under relevant sections of the Protection of Children from Sexual Offences (POCSO) Act and the Scheduled Castes and Tribes (Prevention of Atrocities) Act.
In August 2013, Delhi police filed a case against Asaram Bapu on charges of raping a 16-year old girl in his Jodhpur Ashram. Reportedly, she was brought to Asaram on the pretext of curing her “evil spirits”. Asaram Bapu initially laughed off the incident in one of his satsangs. Asaram Bapu also tried to resist his arrest citing ill health and death of a relative. Finally, he was arrested on August 31, 2013. Also Read: Centre asks three states to tighten security
Charges were framed under sections 342 (for wrongful confinement), 354A (sexual harassment), 370(4) (trafficking), 376(2)f (rape on a woman when she is under twelve years of age), 506 (criminal intimidation), 509/34 and 120 (B) (criminal conspiracy).
In March 2016, an alleged henchman of Asaram — Kartik Haldar– was arrested from Raipur in Chhattisgarh. He was suspected to have shot dead three key witnesses in rape cases filed against the religious leader. Haldar was arrested by Anti-Terrorism Squad of Gujarat. Also Read: Jodhpur turns into fortress, section 144 imposed .
The Supreme Court had also rejected several of Asaram’s bail pleas. In January 2018, the court had fined him Rs 1 lakh for submitting false medical evidence in his bail petition. Earlier, the apex court had refused to grant bail to Asaram on various grounds in the two sexual assault cases lodged in Rajasthan and Gujarat.
Meanwhile, anxiety lingers at another end — miles away from where Asaram is lodged — in Shahjahanpur, a town in Uttar Pradesh where the security has been tightened outside the victim’s house, days before the judgment. Jodhpur police also said that they will impose Section 144 till April 30, in a bid to prevent any untoward incident before the self-styled godman Asaram Bapu’s rape case verdict on April 25.
ISSUES
- Whether the Magistrate recalls summons issued in accordance with section 391 of Crpc .
ARGUMENTS
The Court noted that the impugned judgment refers to quotes from a portion of the Book, and further noted that the application under Section 391 CrPC for summoning and recording evidence of Ajay Pal Lamba has been allowed primarily relying on the following statement by Ajay Pal Lamba in the Book that “while I was there, I thought it would be prudent to film a video of the place on my mobile phone, should I need to refer to it at some point during the course of the investigation. And so, I did.”
The Court said that this statement nowhere mentions that the video, which he had purportedly recorded on his mobile phone, was handed over, given or transferred by him to the Investigating Officer or that it was shown by him to the victim. Further, opined that when the prosecution states that on 21-08-2013 the police team had visited the scene of the crime (Kutiya), the plea to examine Ajay Pal Lamba on the ground that he had purportedly recorded a video of the ‘Kutiya’ on his mobile phone is completely inconsequential and irrelevant to the factual matrix of the present case.
Judgement
1. Petitioner is accused in criminal complaint C.R No. 426/2009 dated 06.12.2009, filed before Sabarmati Police Station. Complaint alleges commission of offences punishable under Sections 307, 120B read with Section 114 IPC as also Section 25 of the Arms Act. Petitioner wants the complaint to be quashed qua him.
2. The complainant in the complaint has briefly stated that he had been a chief Trustee and one of the leading “Sadhaks” of one Asharam Ashram for about 20 years. However, since 2002, on coming to know about improper activities of the present petitioner, he has left the Ashram. He has also provided some details to Commission of Hon’ble Justice D.K Trivedi, who is inquiring into unfortunate deaths of two young boys of the Ashram. Since then he has been receiving threats on his mobile phone from the “Sadhaks” threatening that he will be finished. He was often followed by such “Sadhaks” when he was going out for work. Some 15 to 20 days before the incident, he had found two people following him. One of them he could identify as one Gajanand, who is a “Sadhak” of the Ashram. After he left the Ashram, for two years, efforts were made to bring him back. Since he did not accede to the request, he was often threatened on phone. In the complaint, the complainant has further stated that on 05.12.2009, when he was returning to his house on his motorcycle, at about 8 O’clock at night, he had found two people following him on motorcycle who according to him were “Sadhaks” of the Ashram. When he reached near the Sabarmati Arts and Commerce College at about quarter to nine, he was fired upon thrice. After this, these two assailants disappeared. He informed his brother about the incident who took him to a hospital. Even at that time, he felt that he was being followed. While under treatment at the private hospital, he felt unsafe. He was, therefore, shifted to SAL Hospital from where he lodged the complaint. According to him, he had received one bullet injury on the right shoulder and another near his ribs and the third again on the right shoulder. He further stated that he was thus fired upon thrice by one of the two sadhaks who were following him. This was with an intention to commit his murder. This attempt has been carried out at the instance of the present petitioner only, who is therefore, involved in the offence.
3. Learned counsel for the petitioner submitted that in so far as the petitioner is concerned, no offence is disclosed in the FIR. It is only on the basis of vague and cryptic allegations against the petitioner that he is sought to be involved. The assailants were not identified. There is nothing to connect the petitioner with the said attempt. It is not disclosed how at the instance of the petitioner, the offence was carried out. For such a complaint, investigation cannot be permitted since, as part of the investigation, the petitioner can even be arrested and without any basis or material permitting the arrest of the petitioner, would result into violation of his rights.
It was contended that as per series of decisions of the Apex Court, when the complaint does not disclose any offence against the petitioner, investigation thereof cannot be permitted. He therefore, submitted that the complaint be quashed.
4. On the other hand, learned Additional Advocate General appearing on advance copy for the State opposed the petitioner. He contended that there is prima facie disclosure of offences under Sections 307 read with 114 of IPC and the Section 25 of the Arms Act. Investigation is at an early stage. Early investigation suggests that the incident did happen as alleged. Role of the petitioner is being inquired into. At this stage it would not be appropriate to quash the complaint without any investigation. He relied on the contents of the complaint to suggest that there is sufficient reason to investigate into the possible role of the petitioner.
5. Having thus heard the learned advocate for the parties, law on question of quashing is well settled. In case of R. Kalyani v. Janak C. Mehta reported in (2009) 1 Supreme Court Cases 523, the Apex Court observed that ordinarily Court would exercise power of quashing under Section 482 of Criminal Procedure Code
Complete reading of Section 311 Cr.P.C. and upon its meaningful construction, it is explicitly clear that the Legislature in its wisdom, by inserting this provision, has endowed discretionary power on the Court to find out the truth and render a just decision by exercising its discretionary authority at any stage of the trial to summon any person as witness or examine any person in attendance though not summoned as a witness or recall or reexamine any person already examined, who are expected to be able to throw light upon the matter in dispute. Invocation of the discretionary power under Section 311 Cr.P.C. is circumscribed by certain riders and therefore a Court is expected to use these powers judicially and not capriciously or [19] arbitrarily. A relevant consideration for taking aid of this Section is to discover relevant facts or to obtain proper proof of such facts for a just decision of the case. The Legislature, while engrafting this provision, has equi-balanced the position so that neither the prosecution nor the defence can utilize it for filling up lacuna. The Court, while exercising such discretionary power, should not examine any person in attendance though not summoned as witness or recall or reexamine any person already examined as a disguise for a retrial or to change the nature of the case against either of the parties.
REFERENCES
Written by Khushi Gadia an intern under legal Vidhiya.
