State
of Maharashtra & Anr Vs. Mohd. Sajid Husain Mohd.
S. Husain Etc [2007] Insc 1035 (10 October 2007)
S.B.
Sinha & Harjit Singh Bedi
[Arising
out of SLP (Crl.) Nos.3820-27 of 2007] S.B. SINHA, J:
1.
Leave granted.
2.
This appeal is directed against a judgment and order dated 27.06.2007 passed by
the High Court of Bombay, Aurangabad Bench at Aurangabad granting anticipatory
bail to the respondents herein for commission of an offence punishable under
Sections 376, 342 read with Section 34 of the Indian Penal Code (IPC) and under
Section 5 of the Prevention of Immoral Trafficking Act.
3.
Respondents herein comprise of police officers, politicians and a businessman.
4. A
First Information Report was lodged by a girl, who is said to be minor, showing
how she was driven to the flash trade by accused Shamim Tabassum.
5. One
Maruti Chandre had seven sisters, two of them are Mahananda and Sunita. Mahananda
was unmarried. Sunitas first husband was Dilip Deshmukh, who died. She
married to Sahebrao Mhaske, who also died leaving behind prosecutrix and one Santosh.
After the death of Sahebrao Mhaske, she again married to Vasantrao Hudgir.
There are two issues from the said marriage. Mahananda allegedly was taking
care of the prosecutrix as well as Santosh. Before us some documents have been
placed to show that the date of birth of Puja is 28.06.1991.
Once
she had left her house at Parbhani having been abused and assaulted by Mahananda;
but returned after some time. However, after her return to Parbhani, she was again
abused and assaulted by her cousin. She again came back to Aurangabad and started residing at Mukundwadi,
where she met accused Tabassum @ Baji. She was asked to work at her place as a
maid-servant. According to Puja, in Tabassums house some girls used to
come. After a few days, as one girl did not come, she was asked to go with her.
They reached a Dhaba at Mhaismal in a white coloured vehicle, where they found
a person sitting. She was offered a soft drink. Having consumed it, she felt
reeling in her head. She was also not able to walk. Allegedly, against her will
, she was subjected to rape. She was taken back to the house by accused Tabassum.
She thereafter allegedly had regularly been sent out with various persons.
Sometimes, the amount she received was to be divided in the ratio of 50 : 50.
Sometimes Tabassum herself used to keep the amount with her. She purchased
clothing, jewelleries etc. from the amount she used to earn. Respondents
herein, according to the girl, had taken her to a hotel, government guest house
and even on one occasion to their own apartment. On 22.04.2007, the accused
persons, named in the First Information Report, came to the house of Accused
No. 1 for taking her to Mumbai. They were to travel in a bus. They, however,
went to a hotel to take liquor, before boarding the bus. However, when the
accused persons started behaving indecently with her, the police came and took
all of them to the police station.
She
was medically examined on 22.04.2007. Her Radiological (Bone) Assessment
suggested her age to be between 14-16 years. Respondents herein were not named
in the First Information Report. However, Puja made several statements
thereafter implicating the respondents herein.
She
also gave her statement under Section 164 of the Code of Criminal Procedure (Cr.PC).
Respondents,
having come to know that they have been named by the said girl, absconded. They
filed an application for anticipatory bail before the learned Sessions Judge, Aurangabad. The same was dismissed by an order
dated 24.05.2007 .
6.
Respondents moved the High Court thereagainst and by reason of the impugned
judgment dated 27.06.2007, the said application for anticipatory bail was
allowed, inter alia, holding that the prosecutrix being major and having
willingly consented for sex for consideration, prima facie, a case under
Section 376 IPC has not been made out.
It was
furthermore held that she being stationed in the Remand Home at Aurangabad, was fully protected and,
thus, the question of the respondents being in a position to influence her,
does not arise.
7. The
State is, thus, before us.
8. Mr.
Ravindra Keshavrao Adsure, learned counsel appearing on behalf of the State,
would, inter alia, submit that the High Court committed a serious error in
passing the impugned judgment inasmuch as from various public documents, it is
evident that the date of birth of the prosecutrix is 28.06.1991 and, thus, at
all material times, namely, from January 2007 to 22.04.2007, she was minor and
in that view of the matter, the purported consent given by her would not be of
much significance.
The
learned counsel would contend that it is true that in the First Information
Report, the names of the respondents had not been taken, but in a case of this
nature, the court should have considered the fact that she had been arrested by
the police and as such it is just possible that she was not in a position to
recollect all the details.
In any
event, the First Information Report being not encyclopedic, any evidence which
has been collected by the prosecution during the course of investigation should
have been taken into consideration having regard to the nature and gravity of
the offence.
The
learned counsel would submit that the prosecutrix in her statement recorded by
the police, had made categorical allegations against Accused Nos. 7, 9, 10, 11,
12, 13, 14 and 15. She made a similar statement before the learned Magistrate,
which was recorded under Section 164 Cr. PC on 28.04.2007.
It was
pointed out that all the accused persons had been absconding from 24.05.2007 to
11.06.2007. The learned counsel would submit that as an investigation had been
conducted by the CID under the supervision of a Superintendent of Police, it
cannot be said that any attempt had been made to falsely implicate the respondents.
It was pointed out that a chargesheet had been submitted against the six
accused persons on 18.07.2007 and they have been refused bail by the same
learned Judge. Keeping in view the fact that she was taken to a hotel, guest
houses and apartment, custodial interrogation of the accused is imperative.
9. Mr.
Paramjit Singh Patwalia, learned Senior Counsel appearing on behalf of the
respondents, on the other hand, pointed out that in the First Information
Report, in her medical examination as also in her supplementary statement, the prosecutrix
stated her age to be 18 years. Even her aunt stated her age to be 18 years. It
was in the aforementioned situation, it was urged, no reliance can be placed on
the purported birth certificate, which was issued on 29.05.2007 by the Parbhani
Municipal Council and the School Leave Certificates by different schools as
also the medical certificate, stating her age to be between 14 to 16 years.
The
learned counsel would submit that prima facie the girl was above 16 years and
she being a consenting party and having been getting consideration, no case
under Section 376 IPC having been made out and, thus, this Court should not
interfere with the impugned judgment.
It was
contended that pursuant to the interim order passed by the High Court, the
respondent have fully been cooperating with the Investigating Officer and
except for four days, they have scrupulously complied with the conditions
imposed by interim order passed by the High Court as also the conditions imposed
upon them by the High Court in the impugned judgment.
It was
furthermore pointed out that during the aforementioned period, they subjected
themselves to medical examination and took part in the test identification
parade, but no recovery was made from them. It was pointed out that chargesheet
had been submitted against six persons who are in custody and in that view of
the matter, it is not a case where custodial interrogation would be necessary.
The
learned counsel would contend that although there exists a distinction in
regard to the exercise of jurisdiction of this Court on an appeal from an order
granting or refusing the prayer for grant of anticipatory bail and one of
cancellation of bail; it is trite that this Court ordinarily would not
interfere. Strong reliance, in this behalf, has been placed on State of U.P. through CBI v. Amarmani Tripathi etc. [(2005) 8 SCC
21] and Jagdish and Others v. Harendrajit Singh [(1985) 4 SCC 508]
10.
When the matter came up before us on 27.07.2007, a report was called for from
the Superintendent of Police, Crime Investigation Department, Aurangabad. The said authority has sent a
report to this Court wherein it has, inter alia, been pointed out, that the
respondents-accused persons had been absconding for a long time and they during
the course of interrogation have been giving evasive answers.
11. It
was furthermore stated that from the residence of Accused No. 3, thirteen CDs
of blue films and books instigating sex had been seized. It was also submitted
that recovery of vehicles used by the respondents from time to time for
commission of the offence are yet to be seized and if they are released on
bail, they would tamper with evidence.
12.
Section 438 of Cr.PC has been amended by the State of Maharashtra. by Act No. 24 of 1993, which reads
as under :
438
Direction far grant of bail to person apprehending arrest.-
(1)
When any person has reason to believe that he may be arrested on an accusation
of having committed a non- bailable offence, he may apply to the High Court or
the Court of Session for a direction under this section that in the event of
such arrest, he shall be released on bail; and that Court may, after taking
into consideration, inter alia, the following factors:-
(i) the
nature and gravity or seriousness of the accusation as apprehended by the
applicant;
(ii) the
antecedents of the applicant including the fact as to whether he has, on
conviction by a Court previously undergone imprisonment for a term in respect
of any cognizable offence;
(iii) the
likely object of the accusation to humiliate or malign the reputation of the
applicant by having him so arrested, and
(iv) the
possibility of the applicant, if granted anticipatory bail, fleeing from
justice, either reject the application forthwith or issue an interim order for
the grant of anticipatory bail:
Provided
that where the High Court or, as the case may be, the Court of Session, has not
passed any interim order under this sub-section or has rejected the application
for grant of anticipatory bail, it shall be open to an officer in charge of a
police station to arrest, without warrant the applicant on the basis of the
accusation apprehended in such application.
13.
The four factors, which are relevant for considering the application for grant
of anticipatory bail, are :
(i)
the nature and gravity or seriousness of accusation as apprehended by the
applicant;
(ii)
the antecedents of the applicant including the fact as to whether he has, on
conviction by a Court, previously undergone imprisonment for a term in respect
of any cognizable offence;
(iii) the
likely object of the accusation to humiliate or malign the reputation of the
applicant by having him so arrested; and
(iv) the
possibility of the appellant, if granted anticipatory bail, fleeing from
justice.
14. It
is not in dispute that if the prosecutrix was a minor, consent on her part will
pale into insignificance. She had been medically examined and her approximate
age on the basis of radiological test was determined to be between 14 to 16 years.
Her date of birth was recorded on 04.07.1996 by the Parbhani Municipal Council,
Parbhani. as 28.06.1991. The name of her father was also mentioned
therein as Sahebrao Mhaske. The said certificate was issued on
29.05.2007, but evidently the date of registration of the said certificate was
04.07.1996 i.e. much before any controversy arose.
Three
school leaving certificates had been placed before us which have been issued by
:
(i) Sarjudevi
Bhikulal Bharuka Arya Kanya Vidyalaya, Hingoli;
(ii)
Bal Vidya Mandir, High School Parbhani; and
(iii)
Model English Educational Societies, Sharda Vidya Mandir, Parbhani, wherein her
date of birth was shown as 28.06.1991. She had been, as per the said
certificates, studying in 9th standard. She dropped out from the school.
15. It
may be true that the date of issuance of the certificates had not been stated,
but evidently such certificates had been obtained by the prosecution.
It may
be true that in the First Information Report as also in her first supplementary
examination, her age was recorded as 18 years, but she had been examined
medically. The possibility of her trying to shield her from prosecution at the
time of her arrest and for that purpose disclosing her age to be 18 years
cannot be ruled out.
16. So
far as the fact that the respondents have not been named in the First
Information Report is concerned, suffice it to say that the First Information
Report may be encyclopedic.
17. In
Vinod G. Asrani v. State of Maharashtra [2007 (3) SCALE 241], this Court stated
:
As
pointed out by Mr. Ahmed, this Court in the case of Kari Choudhary v. Sita Devi
and Ors., had while considering a similar question observed that the ultimate
object of every investigation is to find out whether the offences alleged to
have been committed and, if so, who had committed it. The scheme of the Code of
Criminal Procedure makes it clear that once the information of the commission
of an offence is received under Section 154 of the Code of Criminal Procedure,
the investigating authorities take up the investigation and file charge sheet
against whoever is found during the investigation to have been involved in the
commission of such offence. There is no hard and fast rule that the First
information Report' must always contain the names of all persons who were
involved in the commission of' an offence. Very often the names of the culprits
are not even mentioned in the F.I.R. and they surface only at the stage of the
investigation
18.
Out of the eight respondents, five are police officers, two are politicians and
one is owner of a hotel. It is not in dispute that after having come to learn
that their names had been taken by the prosecutrix in her supplementary
statement, they had been absconding for a long time. It is not necessary for us
to record their respective period of abscondance. We may furthermore notice
that the respondents had not scrupulously complied with the conditions imposed
upon them. Admittedly, at least on four occasions, some of them were not
present.
19. We
need not go into the question as to whether they had been cooperating with the
Investigating Officer or not. We may, however, point out that before us a copy
of the affidavit dated 10.05.2007 affirmed by Sunita Sahebrao Mhaske was
placed, wherein she alleged that Puja was born on 30.12.1988. On that basis the
Gram Panchayat, Dhanki had also issued a certificate showing the same to be her
date of birth. We have an uncanny feeling that evidently the evidences are
being collected by somebody who intends to save the accused.
20.
There cannot be any direct proof that the respondents have been tempering with
evidence, but that question will have to be considered by the appropriate
authority at the appropriate stage.
21.
Immoral trafficking is now widespread. Victims, who are lured, coerced or
threatened for the purpose of bringing them to the trade should be given all
protection. We at this stage although cannot enter into the details in regard
to the merit of the matter so as to prejudice the case of one party or the other
at the trial, but it is now well-settled principle of law that while granting
anticipatory bail, the court must record the reasons therefor.
22.
The High Court has in regard to the first factor envisaged under the Maharashtra
Amendment of Section 438 of the Code of Criminal Procedure proceeded on the
basis that the prosecutrix was a girl of easy virtue. This may be so but the
same by itself may not be a relevant consideration. [See State of U.P. v. Pappu alias Yunus and Another - (2005) 3 SCC
594].
23. A
case of this nature should be allowed to be fully investigated. Once a criminal
case is set in motion by lodging an information in regard to the commission of
the offence in terms of Section 154 Cr. PC, it may not always be held to be
imperative that all the accused persons must be named in the First Information
Report. It has not been denied nor disputed that the prosecutrix does not bear
any animosity against the respondents. There is no reason for her to falsely
implicate them. It is also not a case that she did so at the behest of some
other person, who may be inimically disposed of towards the respondents. The
prosecution has disclosed the manner in which she was being taken from place to
place which finds some corroboration from the testimonies of the other
witnesses and, thus, we can safely arrive at a conclusion that at least at this
stage her evidence should not be rejected outrightly.
24.
Parameters for grant of anticipatory bail in such a serious offence, being
under Section 376, 376(2)(g) IPC, in our opinion, are required to be satisfied.
[See e.g. D.K. Ganesh Babu v. P.T. Manokaran and Others [(2007) 4 SCC 434].
25. A
mistake in regard to her age as recorded in the First Information Report or the
first medical document or even in her supplementary affidavit should yield to
the public documents which have been produced by the prosecution at this stage.
Even before the learned Chief Judicial Magistrate, she disclosed her date of
birth to be 22.06.1991. Therefore, even according to that she was below 16
years of age.
26.
Immoral conduct on the part of police officers should not be encouraged. We
fail to understand as to how the police officers could go underground. They had
been changing their residence very frequently.
Although
most of them were police officers, their whereabouts were not known. During the
aforementioned period attempts had been made even by Mahananda to obtain the
custody of the girl at whose instance, we do not know. On the one hand, Mahananda
had been praying for the custody of the girl and Sunita, the mother of the
girl, as noticed hereinbefore, had affirmed an affidavit in relation to her
date of birth. These may not be acts of voluntariness on their part. It,
therefore, in our opinion, is a case where no anticipatory bail should have
been granted.
27.
Reliance has been placed by Mr. Patwalia on Amarmani Tripathi (supra). This
Court therein opined that in an application for cancellation of bail, conduct
subsequent to release on bail and the supervening circumstances alone are
relevant. But the court while considering an appeal against grant of
anticipatory bail would keep in mind the parameters laid down therefor. The
matter, however, may be different for deciding an appeal from an order granting
bail, where the accused has been at large for a considerable time, in which
event, the post-bail conduct and other supervening circumstances will also have
to be taken note of.
This
Court in Amarmani Tripathi (supra) aforementioned case upon considering even
the subsequent events came to the conclusion that the accused therein had tried
to interfere with the course of the investigation, tamper with the witnesses,
fabricate evidence, intimidate or create obstacles in the path of investigation
officers and derail the case. In that case, the appeal granting bail was set
aside.
28. We
may also notice that the High Court itself has refused to grant regular bail to
the accused against whom charge-sheet has been submitted.
The
learned Session Judge also did not grant bail to some of the accused persons.
If on the same materials, prayer for regular bail has been rejected, we fail to
see any reason as to why and on what basis the respondents could be enlarged on
anticipatory bail.
29. In
the peculiar fact and circumstances of the case, we are of the opinion that the
High Court ought not to have granted anticipatory bail to the respondents. The
impugned judgment, therefore, cannot be sustained which is set aside
accordingly. The appeal is allowed.
30.
The respondents may surrender before the Chief Judicial Magistrate and move an
application for regular bail, which may be considered on its own merit without
being influenced, in any way, by the judgment of this Court.
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