Allowed

Atique Mohammad Khan v. the State of Maharashtra through Pso , Wadgaon Road Ps Yavatmal

Bombay HC10 Oct 2012ABA/159/2012

Case brief

AI extract

What is this about?

The High Court allowed a criminal application for pre-arrest bail filed by a suspended judicial officer accused of rape and affray. The judge held that the relationship with the complainant was consensual and the FIR appeared manipulated, thus granting bail.

What did the court decide?

The applicant is released on bail in the sum of rupees twenty thousand with one or two solvents sureties and directed to attend the Investigating Officer.

Atique Mohammad Khan Vs the State of Maharashtra… — Criminal Trial and Appeal | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR

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CRIMINAL APPLICATION (ABA) NO.159 OF 2012

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(ATIQUE MOHAMMAD KHAN..VS.. STATE OF MAH. THR. P.S.O. P.S.WADGAON RD. YAVATMAL)

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- - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders

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CORAM : M.L.TAHALIYANI, J. DATED : OCTOBER 10, 2012.

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Heard Mr.A.S.Mardikar, learned counsel for the applicant and Mr.S.S.Doifode, learned Additional Public Prosecutor for Respondent/ State.

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The applicant is judicial officer who is under suspension. He was working as Labour Court Judge at Yavatmal at the time of incident in question. The complainant was maid servant of the applicant. The complainant is working with the applicant since last about ten years. It is alleged that the applicant had maintained relations with the complainant since last ten years and he has been exploiting her sexually on the pretext that he would marry her. It is also alleged that many a times the complainant had attempted to run away but she could not succeed. Some incident had occurred when the complainant was abused in filthy language by the applicant and the complainant was ultimately constrained to file police complaint against the applicant.

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The learned counsel Mr. Mardikar has submitted that no incident, as alleged, had occurred at all. It is submitted that even if it is assumed that there was intimacy between the applicant and the complainant and they were frequently indulging into sexual intercourse, it is apparent that it was by consent. According

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to Mr. Mardikar the allegations made by the complainant in the first information report are motivated and to extract money from the applicant.

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Learned Additional Public Prosecutor Mr.Doifode has submitted that the complainant was being sexually exploited by the applicant since last ten years. It is further submitted that she belongs to a scheduled caste and taking advantage of she being a member of weaker section of the society, the applicant had exploited her badly.

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I have gone through the first information report on the basis of which the respondent has decided to arrest the applicant. The complainant is resident of Ganeshpeth, Pune. It is stated by her in her complaint that she was working as maid servant with the applicant since last ten years. Husband of the complainant died about five years ago due to illness. It is alleged that the applicant had agreed to marry the complainant and he further agreed to take care of her children. He had also agreed to accept parenthood of the children of the complainant. The complainant was staying with the applicant at Gondia in the year 2007. It is alleged that repeated promises were made by the applicant to the complainant and therefore, she had surrendered herself before the applicant for sexual intercourse.

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In a later part of the first information report, the complainant states that she was ultimately tired of the behaviour of the applicant had tried to return back to her native place. It is stated that the applicant threatened her that he would kill the complainant and her children in the event of she deserting him. Therefore, the complainant could not leave the applicant.

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The applicant was transferred from Gondia to Yavatmal. He was staying at 17, Harhar Complex, Godhani Road, Yavatmal. About 8 to 9 months prior to the date of first information report (dated 17.04.2012), the applicant and the complainant both had gone to Pune on account of Eid. The complainant was allowed to go to her mother's place and the applicant had gone to his house at Pune. It appears from the first information report that the applicant returned alone to Yavatmal. The complainant had come to Yavatmal after a few days. It further appears that the trouble started when the complainant saw a lady and a girl at the house of the applicant at Yavatmal. Immediately after her arrival from Pune the complainant decided to go back to Pune at about 5.30 p.m. The applicant allegedly prevented her from going back to Pune. He abused her in filthy language and later on assaulted her. It is alleged that the applicant had wrongfully confined the complainant during the period between 13^th April to 15^th April, 2012 and during the said period he had forcible sexual intercourse with the complainant. The matter came to be reported to the police on 17^th April, 2012.

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There are two things in the first information report, which are very pertinent to be noted in the order. It can be seen from the first information report itself that the complainant had many occasions when she could have conveniently gone to her native place. However, she did not opt to go back. It is noted that when the complainant and the applicant both had visited Pune, the complainant was allowed to go to her mother's place. The applicant had returned to Yavatmal alone. If the complainant did not want to go to the applicant, she could have opted to stay with her mother at Pune. She had voluntarily come to Yavatmal. This clearly indicates that the complainant,on her own accord, was staying with the applicant and sexual intercourse between them

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was consensual sex. The allegation of wrongful confinement or forcible sexual intercourse is ill-founded. The first information report appears to have been manipulated to suit the case of the complainant.

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What is further to be noted is that the whole trouble started when the complainant saw a lady and a girl at the place of the applicant. Learned Additional Public Prosecutor was asked to find out from the Investigating officer as to who was that lady and as to whether her statement was recorded or not. It is seen from the first information report that the incident, if any, must have occurred in presence of that lady at the house of the applicant. In these circumstances, it was necessary to record statement of that lady. It is strange enough to note that the Investigating Officer has not been able even to identify the lady who was present when the complainant had returned to the house of the applicant at Yavatmal.

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In brief, complete reading of first information report gives clear impression that the abuses, the incident of wrongful confinement and other serious allegations made against the applicant are introduced by the complainant purposefully. It also gives an impression that there was relationship between the applicant and the complainant and they had been frequently indulging into sex. However, it is very clear that it was sex by consent. The first information report does not appear to be honest one. It does not appear that the consent was given by the complainant under misconception of fact or fear. In these circumstances, the applicant is entitled for pre-arrest bail under Section 438 of the Code of Criminal Procedure.

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The applicant be released on bail in the sum of rupees twenty thousand with one solvent surety in the like amount or two sureties of rupees ten thousand each in lieu of one surety, in the event of his arrest in First Information Report No. 114 of 2012 of Wadgaon Road Police Station of Yavatmal for the offences punishable under Sections 376, 343 and 506 of the Indian Penal Code and Sections 3(1)(xii) and 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.

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He shall attend the office of Investigating Officer at Wadgaon Road Police Station whenever called for investigation purpose. He shall not leave his headquarter (Nagpur) without prior intimation to the Investigating Officer. The interim order stands vacated.

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The application stands disposed of accordingly.

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JUDGE

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RRaut..

Atique Mohammad Khan v. the State of Maharashtra through Pso , Wadgaon Road Ps Yavatmal

Case brief

What is this about?

What did the court decide?

Atique Mohammad Khan v. the State of Maharashtra through Pso , Wadgaon Road Ps Yavatmal

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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