{"id":202858,"date":"2007-10-10T00:00:00","date_gmt":"2007-10-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-maharashtra-anr-vs-mohd-sajid-husain-mohd-s-husain-on-10-october-2007"},"modified":"2016-11-20T10:50:08","modified_gmt":"2016-11-20T05:20:08","slug":"state-of-maharashtra-anr-vs-mohd-sajid-husain-mohd-s-husain-on-10-october-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-maharashtra-anr-vs-mohd-sajid-husain-mohd-s-husain-on-10-october-2007","title":{"rendered":"State Of Maharashtra & Anr vs Mohd. Sajid Husain Mohd. S. Husain … on 10 October, 2007"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of Maharashtra & Anr vs Mohd. Sajid Husain Mohd. S. Husain … on 10 October, 2007<\/div>\n
Author: S.B. Sinha<\/div>\n
Bench: S.B. Sinha, Harjit Singh Bedi<\/div>\n
           CASE NO.:\nAppeal (crl.)  1402-1409 of 2007\n\nPETITIONER:\nState of Maharashtra & Anr\n\nRESPONDENT:\nMohd. Sajid Husain Mohd. S. Husain etc\n\nDATE OF JUDGMENT: 10\/10\/2007\n\nBENCH:\nS.B. Sinha & Harjit Singh Bedi\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\n[Arising out of SLP (Crl.) Nos.3820-27 of 2007]
\nS.B. SINHA, J :\n<\/p>\n
1.\tLeave granted.\n<\/p>\n
2.\tThis appeal is directed against a judgment and order dated 27.06.2007
\npassed by the High Court of Bombay, Aurangabad Bench at Aurangabad
\ngranting anticipatory bail to the respondents herein for commission of an
\noffence punishable under Sections 376, 342 read with Section 34 of the
\nIndian Penal Code (IPC) and under Section 5 of the Prevention of Immoral
\nTrafficking Act.\n<\/p>\n
3.\tRespondents herein comprise of police officers,  politicians and  a
\nbusinessman.\n<\/p>\n
4.\tA First Information Report was lodged by a girl, who is said to be
\nminor, showing how she was driven  to the flash trade by accused Shamim
\nTabassum.\n<\/p>\n
5.\tOne Maruti Chandre had seven sisters, two of them are Mahananda
\nand Sunita.  Mahananda was unmarried.  Sunitas first husband was Dilip
\nDeshmukh, who died. She married to Sahebrao Mhaske, who also died
\nleaving behind prosecutrix and one Santosh.  After the death of Sahebrao
\nMhaske, she again married to Vasantrao Hudgir.  There are two issues from
\nthe said marriage.  Mahananda allegedly was taking care of the prosecutrix
\nas well as Santosh.   Before us some documents have been placed to show
\nthat the date of birth of Puja is 28.06.1991.\n<\/p>\n
     Once she had left her house at Parbhani having been abused and
\nassaulted by Mahananda; but returned after some time.  However, after her
\nreturn to Parbhani, she was  again abused and assaulted by her cousin. She
\nagain came back to Aurangabad and started residing at Mukundwadi, where
\nshe met accused Tabassum  @  Baji.  She  was asked to work at her place as
\na maid-servant.  According to Puja, in Tabassums house some girls used to
\ncome.  After a few days, as one girl did not come, she was asked to go with
\nher.  They reached a Dhaba at Mhaismal in a white coloured vehicle, where
\nthey found a person sitting.  She was offered a soft drink.  Having consumed
\nit, she felt reeling in her head.  She was also not able to walk.  Allegedly,
\nagainst her will , she was subjected to rape.  She was taken back  to the
\nhouse by accused Tabassum.  She thereafter allegedly had regularly been
\nsent out  with various persons.  Sometimes, the amount she received was to
\nbe divided in the ratio of 50 : 50.  Sometimes Tabassum herself used to keep
\nthe amount with her.  She purchased clothing, jewelleries etc. from the
\namount she used to earn.  Respondents herein, according to the girl, had
\ntaken her to a hotel, government guest house and even on one occasion to
\ntheir own apartment.  On 22.04.2007, the accused persons, named in the
\nFirst Information Report, came to the house of Accused No. 1 for taking her
\nto Mumbai.   They were to travel in a bus.  They, however, went to a hotel to
\ntake liquor, before boarding the bus.  However, when the accused persons
\nstarted behaving indecently with her, the police came and took all of them to
\nthe police station.\n<\/p>\n
     She was medically examined on 22.04.2007.  Her Radiological (Bone)
\nAssessment suggested her age to be between 14-16 years.  Respondents
\nherein were not  named in the First Information Report.  However,  Puja
\nmade several statements thereafter implicating the respondents herein.\n<\/p>\n
     She also gave her statement under Section 164 of the Code of
\nCriminal Procedure (Cr.PC).\n<\/p>\n
     Respondents, having come to know that they have been named by the
\nsaid girl,  absconded.  They filed an application for anticipatory bail before
\nthe learned Sessions Judge, Aurangabad.  The same was dismissed by an
\norder dated 24.05.2007           .\n<\/p>\n
6.\tRespondents moved the High Court thereagainst and by reason of the
\nimpugned judgment dated 27.06.2007, the said application for anticipatory
\nbail was allowed, inter alia, holding that the prosecutrix being major and
\nhaving willingly consented for sex for consideration, prima facie,  a case
\nunder Section 376 IPC has not been made out.\n<\/p>\n
     It was furthermore held that she being stationed in the Remand Home
\nat Aurangabad, was fully protected and, thus, the question of the
\nrespondents being in a position to influence her,  does not arise.\n<\/p>\n
7.\tThe State is, thus, before us.\n<\/p>\n
8.\tMr. Ravindra Keshavrao Adsure, learned counsel appearing on behalf
\nof the State, would, inter alia, submit that the High Court committed a
\nserious error in passing the impugned judgment inasmuch as from various
\npublic documents, it is evident that the date of birth of the prosecutrix is
\n28.06.1991 and, thus, at all material times, namely, from January 2007 to
\n22.04.2007, she was  minor and in that view of the matter, the purported
\nconsent given by her  would not be of much significance.\n<\/p>\n
\tThe learned counsel would contend that it is true that in the First
\nInformation Report, the names of the respondents had not been taken, but in
\na case of this nature, the court should have considered the fact that she had
\nbeen arrested by the police and as such it is just possible that she was not in
\na position to recollect all the details.\n<\/p>\n
     In any event, the First Information Report being not encyclopedic, any
\nevidence which has been collected by the prosecution during the course of
\ninvestigation should have been taken into consideration having regard to the
\nnature and gravity of the offence.\n<\/p>\n
\tThe learned counsel would submit that the prosecutrix in her
\nstatement recorded by the police, had made categorical allegations against
\nAccused Nos.  7,  9, 10, 11, 12, 13, 14 and 15.  She made a similar statement
\nbefore the learned Magistrate, which was recorded under Section 164 Cr. PC
\non 28.04.2007.\n<\/p>\n
\tIt was pointed out that all the accused persons had been absconding
\nfrom  24.05.2007 to 11.06.2007.  The learned counsel would submit that as
\nan investigation had been conducted by the CID under the supervision of a
\nSuperintendent of Police,  it cannot be said that any attempt had been made
\nto falsely implicate the respondents.  It was pointed out that a chargesheet
\nhad been submitted against the six accused persons on 18.07.2007 and they
\nhave been refused bail by the same learned Judge.  Keeping in view the fact
\nthat she was taken to a hotel, guest houses and apartment, custodial
\ninterrogation of the accused is imperative.\n<\/p>\n
9.\tMr. Paramjit Singh Patwalia, learned Senior Counsel appearing on
\nbehalf of the respondents, on the other hand, pointed out that in the First
\nInformation Report, in her medical examination as also in her supplementary
\nstatement, the prosecutrix  stated her age to be 18 years.  Even her aunt
\nstated  her age to be 18 years.  It was in the aforementioned situation, it was
\nurged,  no reliance can be placed on the purported birth certificate, which
\nwas issued on  29.05.2007 by the  Parbhani Municipal Council and the
\nSchool Leave Certificates by different schools as also the medical certificate,
\nstating her age to be between 14 to 16 years.\n<\/p>\n
\tThe learned  counsel would submit that prima facie the girl was above
\n16 years and she being a consenting party and having been getting
\nconsideration, no case under Section 376 IPC  having been made out and,
\nthus, this Court should not interfere with the impugned judgment.\n<\/p>\n
\tIt was contended that pursuant to the interim order passed by the High
\nCourt, the respondent have fully been cooperating with the Investigating
\nOfficer and except for four days, they have scrupulously complied with the
\nconditions imposed by interim order passed by the High Court as also the
\nconditions imposed upon them by the High Court in the impugned judgment.\n<\/p>\n
     It was furthermore pointed out that during the aforementioned period,
\nthey subjected themselves to medical examination and took part in the test
\nidentification parade, but no recovery was made from them.  It was pointed
\nout that chargesheet had been submitted against six persons who are in
\ncustody and in that view of the matter, it is not a case where custodial
\ninterrogation would be necessary.\n<\/p>\n
\tThe learned counsel would contend that although there exists a
\ndistinction in regard to the exercise of jurisdiction of this Court on an appeal
\nfrom an order granting or refusing the prayer for grant of anticipatory  bail
\nand one of  cancellation of bail; it is trite that this Court ordinarily would not
\ninterfere.  Strong reliance, in this behalf, has been placed on State of U.P.
\nthrough CBI v. Amarmani Tripathi etc. [(2005) 8 SCC 21] and Jagdish and
\nOthers v. Harendrajit Singh<\/a>  [(1985) 4 SCC 508]<\/p>\n
10.\tWhen the matter came up before us on 27.07.2007, a report was called
\nfor from the Superintendent of Police, Crime Investigation Department,
\nAurangabad.  The said authority has sent a report to this Court wherein it
\nhas, inter alia, been pointed out, that the respondents-accused persons had
\nbeen absconding for a long time and they during the course of interrogation
\nhave been giving evasive answers.\n<\/p>\n
11.\tIt was furthermore stated that from the residence of Accused No. 3,
\nthirteen CDs of blue films and books instigating sex had been seized.  It was
\nalso submitted that recovery of vehicles used by the respondents from time
\nto time for commission of the offence are yet to be seized and if they are
\nreleased on bail, they would tamper with evidence.\n<\/p>\n
12.\tSection 438 of Cr.PC has been amended by the State of Maharashtra.
\nby Act No. 24 of 1993, which  reads as under :\n<\/p>\n
438 Direction far grant of bail to person apprehending
\narrest.-\n<\/p>\n
(1) When any person has reason to believe that he may be
\narrested on an accusation of having committed a non-
\nbailable offence, he may apply to the High Court or the
\nCourt of Session for a direction under this section that in
\nthe event of such arrest, he shall be released on bail; and
\nthat Court may, after taking into consideration, inter alia,
\nthe following factors:-\n<\/p>\n
(i) the nature and gravity or seriousness of the accusation
\nas apprehended by the applicant;\n<\/p>\n
(ii) the antecedents of the applicant including the fact as
\nto whether he has, on conviction by a Court previously
\nundergone imprisonment for a term in respect of any
\ncognizable offence;\n<\/p>\n
(iii) the likely object of the accusation to humiliate or
\nmalign the reputation of the applicant by having him so
\narrested, and<\/p>\n
(iv) the possibility of the applicant, if granted
\nanticipatory bail, fleeing from justice, <\/p>\n
either reject the application forthwith or issue an interim
\norder for the grant of anticipatory bail:\n<\/p>\n
Provided that where the High Court or, as the case may
\nbe, the Court of Session, has not passed any interim order
\nunder this sub-section or has rejected the application for
\ngrant of anticipatory bail, it shall be open to an officer in
\ncharge of a police station to arrest, without warrant the
\napplicant on the basis of the accusation apprehended in
\nsuch application.<\/p>\n
13.\tThe four factors, which are relevant for considering the application for
\ngrant of anticipatory bail, are :\n<\/p>\n
(i)\tthe nature and gravity or seriousness of accusation
\nas apprehended by the applicant;\n<\/p>\n
(ii)\tthe antecedents of  the applicant including the fact
\nas to whether  he has, on conviction by a Court,
\npreviously undergone imprisonment for a term in
\nrespect of any cognizable offence;\n<\/p>\n
(iii)\tthe likely object of the accusation to humiliate or
\nmalign the reputation of the applicant by having
\nhim so arrested; and<\/p>\n
(iv)\tthe possibility of the appellant, if granted
\nanticipatory bail, fleeing from justice.<\/p>\n
14.\tIt is not in dispute that if the prosecutrix was a minor, consent on her
\npart will  pale into insignificance.  She had been medically examined and her
\napproximate age on the basis of radiological test was determined to be
\nbetween 14 to 16 years.  Her date of birth was recorded on 04.07.1996 by
\nthe  Parbhani Municipal Council, Parbhani. as  28.06.1991.  The name of
\nher father was also mentioned therein as Sahebrao Mhaske.  The said
\ncertificate was issued on 29.05.2007, but evidently the date of registration of
\nthe said certificate was 04.07.1996 i.e. much before any controversy arose.
\nThree school leaving certificates had been placed before us which have been
\nissued by : (i)  Sarjudevi Bhikulal Bharuka Arya Kanya Vidyalaya, Hingoli;\n<\/p>\n
(ii) Bal Vidya Mandir, High School Parbhani; and (iii) Model English
\nEducational Societies, Sharda Vidya Mandir, Parbhani, wherein her date of
\nbirth was shown as 28.06.1991.  She had been, as per the said certificates,
\nstudying in 9th standard.  She dropped out from the school.\n<\/p>\n
15.\tIt may be true that the date of issuance of the certificates had not been
\nstated, but evidently such certificates had been obtained by the prosecution.
\nIt may be true that in the First Information Report as also in her first
\nsupplementary examination, her age was recorded as 18 years, but she had
\nbeen  examined medically.  The possibility of her trying to shield her from
\nprosecution at the time of her arrest and for that purpose disclosing her age
\nto be 18 years cannot be ruled out.\n<\/p>\n
16.\tSo far as the fact that the respondents have not been named in the First
\nInformation Report is concerned,  suffice it to say that the First Information
\nReport may be encyclopedic.\n<\/p>\n
17. \tIn  Vinod G. Asrani v. State of Maharashtra<\/a> [2007 (3 ) SCALE 241],
\nthis Court stated :\n<\/p>\n
 \tAs pointed out by Mr. Ahmed, this Court in the
\ncase of Kari Choudhary v. Sita Devi and Ors.,<\/a> had while
\nconsidering a similar question observed that the ultimate
\nobject of every investigation is to find out whether the
\noffences alleged to have been committed and, if so, who
\nhad committed it. The scheme of the Code of Criminal
\nProcedure makes it clear that once the information of the
\ncommission of an offence is received under Section 154
\nof the Code of Criminal Procedure, the investigating
\nauthorities take up the investigation and file charge sheet
\nagainst whoever is found during the investigation to have
\nbeen involved in the commission of such offence. There
\nis no hard and fast rule that the First information Report’
\nmust always contain the names of all persons who were
\ninvolved in the commission of’ an offence. Very often the
\nnames of the culprits are not even  mentioned in the
\nF.I.R. and they surface only at the stage of the
\ninvestigation<\/p>\n
18.\tOut of the eight respondents, five are police officers, two are
\npoliticians and one is owner of a hotel.  It is not in dispute that after having
\ncome to learn that their names had been taken by the prosecutrix in her
\nsupplementary statement, they had been absconding for a long time.  It is not
\nnecessary for us to record their respective period of abscondance.  We may
\nfurthermore notice that the respondents had not scrupulously complied with
\nthe conditions imposed upon them.  Admittedly, at least on four occasions,
\nsome of them were not present.\n<\/p>\n
19.\tWe need not go into the question as to whether they had been
\ncooperating with the Investigating Officer or not.  We may, however, point
\nout that before us a copy of the affidavit dated 10.05.2007 affirmed by
\nSunita Sahebrao Mhaske was placed, wherein she alleged that Puja was born
\non 30.12.1988.  On that basis the Gram Panchayat, Dhanki had also issued a
\ncertificate showing the same to be her date of birth.  We have an uncanny
\nfeeling that evidently the evidences are being collected by somebody who
\nintends to save the accused.\n<\/p>\n
20.\tThere cannot be any direct proof that the respondents have been
\ntempering with evidence,  but that question will  have to be considered by
\nthe appropriate authority at the appropriate stage.\n<\/p>\n
21.\tImmoral trafficking is now widespread.  Victims, who are lured,
\ncoerced or threatened for the purpose of bringing them to the trade should be
\ngiven all protection.  We at this stage although cannot enter into the details
\nin regard to the merit of the matter so as to prejudice the case of one party or
\nthe other  at the trial, but it is now well-settled principle of law that while
\ngranting anticipatory bail, the court must record the reasons therefor.\n<\/p>\n
22.\tThe High Court has in regard to the first factor envisaged under the
\nMaharashtra Amendment of Section 438 of the Code of Criminal Procedure
\nproceeded on the basis that the prosecutrix was  a girl of easy virtue. This
\nmay be so but the same by itself may not be a relevant consideration. [See
\nState of  U.P. v. Pappu<\/a> alias Yunus and Another –  (2005) 3 SCC 594].\n<\/p>\n
23.\tA case of this nature should be allowed to be fully investigated.  Once
\na criminal  case is set in motion by lodging an information in regard to the
\ncommission of the offence in terms of Section 154 Cr. PC,  it may not
\nalways be held to be imperative that all the accused persons must be named
\nin the First Information Report.  It has not been denied nor disputed that the
\nprosecutrix does not bear any animosity against the respondents.  There is no
\nreason for her to falsely implicate them.  It is also not a case that she did so
\nat the behest of some other person,  who may be inimically disposed of
\ntowards the respondents. The prosecution has disclosed the manner in which
\nshe was being taken from place to place which finds some corroboration
\nfrom the testimonies of the other witnesses and, thus, we can safely arrive at
\na conclusion that at least at this stage  her evidence should not be rejected
\noutrightly.\n<\/p>\n
24.\tParameters for grant of anticipatory bail in such a serious offence,
\nbeing  under Section 376, 376(2)(g) IPC,  in our opinion, are required to be
\nsatisfied.  [See e.g. D.K. Ganesh Babu v. P.T. Manokaran and Others<\/a>
\n[(2007) 4 SCC 434].\n<\/p>\n
25.\tA mistake in regard to her age as recorded in the First Information
\nReport or the first medical document or even in her supplementary affidavit
\nshould yield to the public documents which have been produced by the
\nprosecution at this stage.  Even before the learned Chief Judicial Magistrate,
\nshe disclosed her date of birth to be 22.06.1991.  Therefore, even according
\nto that she was below 16 years of age.\n<\/p>\n
26.\tImmoral conduct on the part of police officers should not be
\nencouraged.  We fail to understand as to how the police officers could go
\nunderground.  They had been changing their residence very frequently.
\nAlthough most of them were police officers, their whereabouts were not
\nknown.  During the aforementioned period attempts had been made even by
\nMahananda to obtain the custody of the girl at whose instance, we do not
\nknow.   On the one hand, Mahananda had been praying for the custody of
\nthe girl and Sunita, the mother of the girl, as noticed hereinbefore, had
\naffirmed an affidavit in relation to her date of birth.  These may not be acts
\nof voluntariness on their part.  It, therefore, in our opinion, is a case where
\nno anticipatory bail should have been granted.\n<\/p>\n
27.\tReliance has been placed by Mr. Patwalia on Amarmani Tripathi
\n(supra).  This Court therein opined that in an application for cancellation of
\nbail, conduct subsequent to release on bail and the supervening
\ncircumstances alone are relevant.  But the court while considering an appeal
\nagainst grant of  anticipatory bail would keep in mind the parameters laid
\ndown therefor.   The matter, however, may be different for  deciding an
\nappeal from an order granting bail, where the accused has been at large for a
\nconsiderable time, in which event,  the post-bail conduct and other
\nsupervening circumstances will also have to be taken note of.\n<\/p>\n
\tThis Court in  Amarmani Tripathi (supra)  aforementioned case upon
\nconsidering even the subsequent events came to the conclusion that the
\naccused therein had tried to interfere with the course of the investigation,
\ntamper with the witnesses, fabricate  evidence, intimidate or create obstacles
\nin the path of investigation officers and derail the case.  In that case, the
\nappeal granting bail was set aside.\n<\/p>\n
28.\tWe may also notice that the High Court itself has refused to grant
\nregular bail to the accused against whom charge-sheet has been submitted.
\nThe learned Session Judge also did not grant bail to some of the accused
\npersons.  If on the same materials, prayer for regular bail has been rejected,
\nwe fail to see any reason as to why and on what basis the respondents could
\nbe enlarged on anticipatory bail.\n<\/p>\n
29.\tIn the peculiar fact and circumstances of the case, we are of the
\nopinion that the High Court ought not to  have granted anticipatory bail to
\nthe respondents.    The impugned judgment, therefore, cannot be sustained
\nwhich is set aside accordingly.  The appeal is allowed.\n<\/p>\n
30.\tThe respondents may surrender before the Chief Judicial Magistrate
\nand move an application for regular bail, which may be considered on its
\nown merit without being influenced, in any way, by the judgment of this
\nCourt.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of Maharashtra & Anr vs Mohd. Sajid Husain Mohd. S. Husain … on 10 October, 2007 Author: S.B. Sinha Bench: S.B. Sinha, Harjit Singh Bedi 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-202858","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of Maharashtra & Anr vs Mohd. Sajid Husain Mohd. S. 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