State of Maharashtra & Anr Vs Mohd. Sajid Husain Mohd. S. Husain etc

CASE NO.:
Appeal (crl.) 1402-1409 of 2007

PETITIONER:
State of Maharashtra & Anr

RESPONDENT:
Mohd. Sajid Husain Mohd. S. Husain etc

DATE OF JUDGMENT: 10/10/2007

BENCH:
S.B. Sinha & Harjit Singh Bedi

JUDGMENT:
J U D G M E N T
[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.