TMI Blog2007 (10) TMI 700X X X X Extracts X X X X X X X X Extracts X X X X ..... at she was below 16 years of age. 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . She was asked to work at her place as a maid-servant. According to Puja, in Tabassum's 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gation 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 i 1.06.2007. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sconding 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: 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 app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional 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 AIR2007SC1253 , 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 therefore. 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 Anr. 2005CriLJ331 . 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 manne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orementioned 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
