Bombay High Court Ravikant Shankarappa Patil-vs-The State Of Maharashtra on 8 December, 1999
Equivalent citations:(2000) 102 BOMLR 623
Author: H Gokhale
Bench: H Gokhale
H.L. Gokhale, J.
1. When the matter was called out, Mr. Agandsurve appearing for the applicant sought adjournment. This matter had come up earlier on 3.12.1999 and on that date after the matter was heard for some time. Mr. Shirish Gupte, Senior Advocate appearing with Mr. Agandsurve had sought adjournment to take instruction as to whether the matter will be proceeded or it will be withdrawn. Today Mr. Agandsurve states that Mr. Gupte is busy elsewhere and Mr. Gupte will proceed with the matter when he is free from the other matter. On being asked to proceed with the matter, Mr. Agandsurve has expressed his inability to do so. In the circumstances, I have gone through the application and papers on record and heard Mr. Mirza, Addl. Public Prosecutor for the State. Mr. Purwant is present for the complainant.
2. The applicant is aged about 40 years and is a resident of Solapur. He is an accused in connection with the offence registered vide C.R. No. 61/99 at Vijapur Naka Police Station of Solapur for offences punishable under Sections 385, 386, 366, 376, 452, 506(11), 147, 148, 323, 504 read with 149 of I.P.C. and Sections 3 and 25(1) of the Arms Act. The ease of the applicant is (.hat he is a political and social worker and businessman of repute. In the year 1992 he was elected as a Councillor to the Solapur Municipal Corporation. In 1994 he was elected as a member to the Karnataka Assembly from Indi Constituency (adjoining to district Solapur) as an independent candidate. In the year 1996 he contested for the Parliamentary Constituency from Solapur and lost by a narrow margin of 7000 votes. It is his political rivals from Solapur District in Maharashtra and Vijapur, District in Karantaka, who have conspired to implicate him in this criminal case with serious allegation of immoral nature.
3. It is his further case that the entire case of prosecutrix Fatima Shaikh is false. His defence is that he got himself converted to Islam on 6.5.1999 and thereafter married her. Mr. Gupte, learned Senior Advocate appearing for the applicant, had shown to me on the last date the photographs taken at the time of the marriage. His submission is that the two other accomplices in the charge of kidnapping, have been released and so he should as well be. His mother is ill and taking treatment in a hospital in Bangalore. That apart, his presence is required in his Constituency as well as in the Assembly for the welfare of the people. He is totally innocent. These are the grounds which are taken in this application under Section 439 Cr. P.C. seeking bail.
3A. As against these submissions of the applicant, Mr. Mirza, learned Addl. Public Prosecutor for the State, has drawn any attention to the complaint dated 5.6.1999 filed by the prosecutrix who is of half the age of the applicant, i.e. just 20 years. She is studying in the 3rd year of Computer Engineering in Walchand College at Solapur. Her family shifted to Solapur from Libya in December, 1991. Her family came to be acquainted with the applicant since the applicant had acquaintance with her maternal uncle. She, in fact, states that she used to treat the applicant like her maternal uncle. The complaint further states that in the year 1997, her father shifted his residence and constructed a house in another area. During the course of construction, the contractor left the work incomplete and the applicant helped the father of the complainant to get it completed. Thereafter he started visiting their house frequently. He used to state that his wife was having quarrels with him and was harassing him. He, therefore, suggested to her parents to perform his marriage with the complainant. On the family members of the complainant declining to do so, he started coming over there after some time with a revolver and filling it with bullets purposely in their presence to pressurise them. He told the complainant’s father that 12 lacs were due to him for that construction. Thereafter the complainant’s father returned to him Rs. 4 lacs. The applicant gave some more time to him to return the remaining 8 lacs. In April, 1999. he again insisted that for the return of these a lacs or marriage with the complainant. On that being turned down, the applicant kidnapped the prosecutrix with the help of accomplices who came with knives and iron-bar. The prosecutrix had concealed herself in bathroom but that was broken open and at the point of revolver, the complainant was taken to Pune. On the complainant threatening to jump from the vehicle, she was brought back. Thereafter on 4.5.1999 she along with her parents and couple of relatives were forced to accompany him to Mumbai on 5.5.1999. On 6.5.1999 he converted himself to Islam, took the name of Mohammed Rafique and forcibly married her by registered marriage. It is her further case that on 9.5.1999 and thereafter till 17.5.1999 he forcibly had sexual intercourse with her without her consent. It is her further case that she was thereafter taken to Hyderabad and the idea was to Lake a flat over there and stay. After a few days she was brought back to Solapur. This time the applicant demanded an amount of Rs. 20 lacs for buying a Hat in Hyderabad. He thereafter started raising quarrels with her parents and this went on till about 4.6.1999. Because of fear, they continued to bear all these acts. Ultimately on 4.6.1999 he threatened the complainant’s father that if he lodged a complaint with the police, his son Altaph will be killed. Ultimately after consultation with his advocate, this complaint was lodged on 4.6.1999.
4. Now, what is material to note is that in the present criminal application, all these statements in the complaint of the prosecutrix are mentioned in the application and there is only a general denial thereto. The entire story of the prosecution, viz. as to how the parties came in contract with each other or with respect to construction of the house, demand of money and then forcible marriage and forcible intercourse etc., is only denied in generality. It is not stated as to why the prosecutrix should lodge this complaint, if the prosecutrix should lodge this complaint, if the prosecutrix had married him voluntarily as claimed by him after his convertion to Islam. There is an allegation that he is involved in this case because of political rivalry, but there is not a whisper as to who are the people who are likely to be behind this false complaint. Again what is material to note is that it was on 12.8.1999 when in custody, that he applied to the learned Judicial Magistrate for permission to fill up his nomination form to the Assembly from Indi Constituency which he later on filled in by police escort on 16.8.1999. The complaint lodged by the prosecution and the arrest of the applicant is much earlier in June, 1999. It is very easy to say that there are political rivals who are involving him into all this. But as stated above, there is no mention whatsoever as to who are the people likely to be behind all this fabrication. Nor is there any statement as to why the prosecutrix should be a party to this plot against the applicant. Then what is further important is that there are some 38 different criminal cases filed against the applicant in different courts. Offences charged therein are by no means minor. The offence registered against him and shown in the list by the prosecution are from the years 1979 onwards until the year 1994. The accused has been acquitted in some of the cases, though most of them are still pending.
The pending cases are:-
C.R. Nos. Sections of I.P.C.
1. 228/84 279, 338
2. 270/82 147 to 149, 441, 554
3. 176/82 458, 427
4. 315/83 324, 452, 506, 504
5. 16/84 147 to 149, 324, 504
6. 255/84 363, 341, 384, 34 7. 189/86 3 24, 341, 384, 34
8. 197/88 326, 452, 34
9. 158/89 307, 34
10. 623/89 25(3) of Arms Act
11. 102/91 451, 504, 506, 34
12. 173/94 324, 506(2), 504
13. 61/91 384, 325, 511
14. 459/81 147, 149, 337, 323, 504
15. 368/84 452, 504
16. 188/91 384, 387, 34
17. 189/91 143, 147, 341
18. 85/96 36/134 of M.P. Act
19. 436/80 147 to 149, 426, 436
20. 20/83 325
Hence it is difficult to accept his submission of being falsely involved either by his political rivals or the complaint being false or fabricated.
5. As far as the ground of parity with the release of two accomplices is concerned, there is no substance in that. They were principally charged of kidnapping. One of them was released on bail earlier by the Sessions Court and only because no appeal therefrom was carried by the State, the other accomplices had come to be released by this Court on the ground of parity. As far as the submission of the applicant of being lawfully married to the prosecutrix is concerned, there is no force therein also. This second marriage of his after conversion to Islam, is void in terms of Section 494 I.P.C., as held by the Supreme Court in the case of Saria Mudgal v. Union of India .
6. Then what is material is that this is the 10th application which is being made for seeking bail in a span of less than six months on some grounds or the other when the date of F.I.R. is 5.6.1999.
(i) Thus, the applicant first moved for anticipatory bail by filing Criminal Misc. Application No. 276 of 1999 before the Sessions Judge, Solapur. It was rejected on 18.6.1999.
(ii) Then, he moved an anticipatory bail application in this Court vide Criminal Application No. 1716 of 1999 which was rejected by my brother Trivedi, J.
(iii) The third application, being Criminal Misc. Application No. 320 of 1999 for bail under Section 439 Cr. P.C. after his arrest was moved to the Sessions Judge and it was rejected on 17.7.1999,
(iv) The 4th application, being Criminal Misc. Application No. 357 of 1999, was moved to the Sessions Court on medical ground. That was also rejected.
(v) Thereafter, Criminal Appliction No. 2253 of 1999 was moved to this Court and my brother Sahai, J. rejected it by detailed speaking order on 25.8.1999. In that order, Sahai, J. observed as follows.:
In my view, if prima facie, the allegations contained in the FIR are examined, they demonstrate that in a very blatant manner, the applicant who is a member of the Legislative Assembly, on the point offeree, coercion, revolver and threat to the life of the family members of the prosecutrix, married her and committed rape on her.
(vi) Then Criminal Misc. Application No. 457 of 1999 was moved to the Sessions Judge. That was made on the ground that the applicant wanted to visit his Constituency to thank his voters. After considering all the aspects including the order passed by the High Court, the learned Sessions Judge rejected that application by his order dated 8.10.1999.
vi-(a) On the same day, however, another Purshis was tendered to the learned Judge praying in that application that permission be granted with police force to attend Vijapur Collectorate and oath affirmation at Bangalore Vidhan Sabha for a period of one week. The learned Public Prosecutor did not dispute that the applicant was elected to the Assembly and, therefore, gave his endorsement that for the limited purpsoe of taking oath, a necessary direction may be given to the Jail Authority. The learned Judge, therefore, by a separate order, permitted the applicant to attend the oath ceremony under the police escort. The applicant, however, utilised this freedom to take out a victory procession. Mr. Mirza points out that during that period of seven days when he was on bail from 9.10.1999 to 17.10.1999, the prosecutrix received threatening telephone calls from the applicant and she has identified him by voice. The prosecution has collected the report from the Telephone Department which has confirmed the fact that from the telephone belonging to the applicant installed at his residence, some five calls have been made to the residence of the prosecutrix. Thus, the applicant misused the liberty granted to him.
vii) Threafter the applicant moved Criminal Application No. 3056 of 1999 before this Court which was allowed to be withdrawn by my brother Sahai, J. on 15.10.1999.
viii) The applicant then moved Criminal Misc. Application of 1999 for provisional bail to the Sessions Court (marked as Exhibit-7 in Sessions Case No. 203 of 1999). That was on the ground that when he was granted bail earlier from 9.10.1999 to 17.10.1999 because of the political developments in Karanataka, oath could not be given to him. This application was however rejected by the learned Sessions Judge by his order dated 26.10.1999 since the accused was not approaching the Court with clean hands.
ix) Thereafter the 9th application was moved to the High Court on the ground of his mother’s illness. That was moved in the Vacation and was considered by my brother Palkar, J. The submission of the applicant was that his mother was taking treatment in Bangalore and he be permitted to visit over there. In that matter, the bail was granted for a period of three weeks on four conditions.:
a) The applicant will stay only in Bangalore.
b) He will report to the police at Bangalore every day.
c) He shall not enter Solapur city, during that period.
d) He will surrender to the Jail Authority after the period is over.
Mr. Mirza points out that during this period, inspite of these clear terms, the applicant entered in Solapur city on 1.12.1999 and gave an interview to a local T.V. Channel Vritta Darshan on 1.12.1999. The prosecution is having Video tape of that interview.
x) Thereafter, the present application is being moved which is the 10th application.
7. Thus, as can be seen from what is narrated above, the applicant is a person with serious criminal anticidents inasmuch as he has been an accused in some 38 criminal cases filed against him from the years 1979 to 1996 most of which is a period much prior to his even becoming a Municipal Corporator in the year 1992. There is no explanation in this application as to why the prosecutrix should involve him in this case. In fact, the application reproduces what is stated in the complaint and there is only a general denial of the allegation. Though there is an averment of political rivalry, nothing is stated as to who has implicated the applicant or why the prosecutrix should be a party to this incident. The role of the accomplices is quite different from the present accused and his defence of he being married to the prosecutrix is also bad in law. That apart, twice when he was released on bail, he has violated the terms thereof. Father of the prosecutrix Nazir Shaikh has also filed an affidavit in the present proceedings confirming the threats being received by his daughter when the applicant was on bail on the first occasion and repeating that his family is under constant threats. His entire family is in severe danger. It is, therefore, most risky to release the applicant on bail as sought by him and he has proved that he is not worthy of any such concession. This application will, therefore, have to be and is hereby rejected.
8. This Court will, however, be failing in its duty if it rests after rejecting this application. As can be seen from what is narrated above, this is the 10th application which is being made in a span of less than six months for seeking bail on some grounds or the other when the date of F.I.R. is 5.6.1999. There is no change in the circumstances whatsoever, yet taking liberal view he was granted bail twice, 1st to take oath and then to attend to his ailing mother who is supposed to be in hospital in Bangalore. On both the occasions, liberty was misused. The applicant is obviously a person of good financial means apart from being a M.L.A. On his filing these applications, the machineries of the police and the prosecution had to run to defend its position from time to time at different places. When such applications are made, these agencies are under tremendous pressure particularly when the applicant is a M.L.A. Some of these applications were made to the Sessions Court at Solapur and some of them to this Court. The officers of the State had to run from place to place and State is required to spend good amount to defend its position when such applications are made.
9. These applications cannot but be described as an abuse of the process of the Court. In a recent case which came up before the Apex Court, four persons other than the husband of the prosecutrix, who were also charged under Sections 351, 406, 420 and 498A of I PC and Sections 3 and 4 of the Dowry Prohibition Act, 1961 dragged on the proceedings for eight years. The High Court of Madras had imposed cost of Rs. 10.000/- on each of these appellants while dismissing the revision of these persons for dragging on these proceedings and for suppresing an earlier decision bearing upon the matter. The matter was carried to the Supreme Court and the Supreme Court upheld the judgment of the High Court in Mary Angel v. State of Tamil Nadu (1999) 5 SCC 209. It held that it is true that under the Criminal Procedure Code, specific provisions for awarding costs are available only under Section 148(3), 342, and 359 of Cr. P.C. At the same time, there was no specific bar that in no other case, costs could be awarded. The Court held that in view of the provisions for awarding costs under Section 359 in non-cognizable cases, it may be inferred that in a cognizable case and in an appeal or revision arising therefrom. The High Court cannot exercise its inherent power for awarding costs de hors the said provisions. But such an inference is not possible in cases where the High Court is exercising powers under Section 482. In para 8 of the judgment, the court observes as follows:-
10. In our view. Section 482 Cr. P.C. stands independently from the other provisions of the Code and it expressly saves the inherent powers of the High Court by providing that :
482. Nothing In this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necesary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
Therefore to prevent abuse of the process of the Court or otherwise to secure the ends of justice the High Court is empowered to pass such order which may include order to pay costs to the informant (complainant) and the language of the section does not in terms place any letter. This power is not conditioned or controlled by any other section nor is curtailed by any provisions which empower the Court to award costs. No doubt this jurisdiction is of an exceptional nature and is to be exercised in exceptional cases for achieving the pruposes stated in the section. Secondly, costs could be either for the purpose of meeting the expenses of the litigation as it can be exemplary to prevent the abuse of the process of the Court or to secure the ends of justice or giving effect to any order passed under the Code.
11. The applicant herein is a M.L.A. and a person of substantial means. He has so far made 10 applications seeking bail without there being any change in the circumstances. He has misused the liberty granted to him on two occasions. On all these occasions, machinery of the State has been required to spend good amount to defend its position in different courts at Solapur as well as this Court. These applications are nothing but an abuse of the process of the Court. Looking to these peculiar facts of this case and its exceptional nature, cost will have to be awarded to partially meet the expenses incurred by the State as also being exemplary cost to prevent the abuse of process of the Court. Since ten applications have been made so far, the minimum cost that ought to he awarded while rejecting this application would be Rs. 10.000/-. Accordingly, this Application stands rejected with cost quantified at Rs. 10.000/- to be paid by the applicant to the State Government. The applicant would be expected to pay this cost before he makes any fresh application to any judicial authority and in any case within four weeks on outer side from the date of this order.
Certified copy of this order is expedited.
A copy of this order duly authenticated by the Personal Secretary of this Court may be made available to parties.