SANTOSH BHAURAO RAUT Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Applicant seeking bail after having been unsuccessful before the Sessions Court at Thane has come to this Court invoking sections 439 and/or 482 of the Code of Criminal Procedure, 1973.

(2.) The application gives rise to questions which have to be considered in the following background : A temple and Shrine at Vajreshwari in the District of Thane attracts a number of pilgrims. Two such pilgrims headed for Vajreshwari were Sushila and her husband Mallayya. They came to the Vasai Railway Station on June 25, 1988 at about 10.45 p.m. From the Railway Station the couple went to the Navghar Bus Station. This was with a view to get a bus for Vajreshwari. While are couple were standing at the bus stand a person unknown to them approached and gave out that they were wanted by his D.S.P. who it was said was in an auto-rickshaw parked some distance away. The persons speech and manner gave the impression of his being from the Police department. Sushila and Mallayya went with the messenger to the auto rickshaw. Inside the rickshaw were three persons who accused Mallayya of moving about with a female not his wife and his wanting to have a good time with the said person. The accusation rendered the couple speechless and they could only protest their innocence. The occupants of the rickshaw including the driver professed scepticism and asked the couple to get into the rickshaw saying that it was necessary to take them to the Police Station. The frightened Mallayya and Sushila got into the vehicle which started and went ahead. Seeing that the vehicle was not going in the expected direction the couple protested only to be abused and assaulted. Mallayya was forced out of the rickshaw and the vehicle went ahead to a site near a brick kiln where it was haulted. Here, Sushila was forced to get out of the rickshaw and submit herself to sexual intercourse. Her protests were disregarded and her clothes forcibly removed from her person. Thereafter the quartet ravished the girl, each miscreant enjoying her person twice. After the miscreants had satisfied their lust they made Sushila dressed up and the rickshaw was headed in the direction from where it had originally come. In the meantime Mallayya had contended the Police and they intercepted the rickshaw on its way back. Unfortunately, one of the culprits whose name was Imtiaz decamped and disappeared in the darkness. The remaining three, viz., the applicant, the rickshaw driver Munaf and Bharat were arrested. They, together with Sushila and her husband, were taken to Police Station and here Sushilas statement was reduced into writing. Investigation begun and the applicant moved the Sessions Court at Thane for bail. The 3rd Additional Sessions Judge who heard the bail application rejected the same. That rejection has led him to approach this Court.

(3.) Counsel for the applicant submits that the Sessions Court was in error in holding that the applicant was disentitled to bail merely because one of the punishment prescribed for the offence of rape is life imprisonment. It is argued that though the applicant is accused of gang rape, the punishment prescribed is 10 years R.I. though it is possible that in a given case the offender may be sentenced to life imprisonment. However, for the purposes of entitlement to bail it is not the maximum punishment that is relevant. The offender who is accused of a non-bailable offence is not deprived of the entitlement to bail merely because the offence is punishable with life imprisonment. Such a disability is occasioned where the offence allegedly committed by the offender is punishable only with death or imprisonment for life. To put it differently, section 437(1)(i) of the Cri.P.C. cannot be applied to the case of a person who can be punished with a sentence of imprisonment less than imprisonment for life. The Indian Penal Code prescribes a minimum sentence of 10 years R.I. for one accused of the offence of gang rape. This is the punishment to be taken into consideration for the purposes of deciding on the applicability or otherwise of section 437(1)(i). It is not possible to agree with this submission. Section 437(1)(i) says that a person accused of or suspected of the commission of an offence punishable with death or imprisonment for life, shall not be released on bail if there appears reasonable ground for believing that he has committed such an offence. Therefore, even if the law prescribes death or imprisonment for life as the maximum imposable sentence, section 437(1)(i) is attracted and the offender deprived of the right to get bail. This of course is on it being made to appear that there are reasonable grounds for believing that he has committed an offence for which the prescribed punishment is death or imprisonment for life.