Allowed

Shamsuddin S/O S. Basheer v. the State of Maharashtra and Anr.

Bombay HC26 Jul 2013ABA/778/2013

Case brief

AI extract

What is this about?

In this anticipatory bail application, the High Court of Bombay allowed the bail for an accused accused of rape and other offences under POCSO. The Court noted that the victim had subsequently filed an affidavit exonerating the applicant and claimed false implication. The Court observed misuse of victim compensation schemes but granted bail as the applicant was innocent.

What did the court decide?

The application is allowed. The applicant be enlarged on bail on furnishing a R.P. Bond in Rs. 15,000/- and two sureties. The applicant shall give a photocopy of his Passport and keep the Investigatin

Shamsuddin S/O S. Basheer Vs the State of… — Child Sexual Offences (POCSO) | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL BAIL APPLICATION NO. 778 OF 2013

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Mr. Shamsuddin S/o S. Basheer ... Applicant vs. 1. The State of Maharashtra ) 2. Ms. Bushra Shaikh D/o. Jahir Ali ) Shaikh. ). Respondents

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Mr.A.M.Saraogi,Advocate for the applicant. Mr. Vijay Sharma,Advocate for respondent No.2. Ms.P.P.Shinde,APP,for the respondent-State

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CORAM: SMT. SADHANA S.JADHAV,J. DATE : 26th July, 2013

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P.C.

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Heard. This is an application under Section 438 of the Code of Criminal Procedure, 1973. The applicant is apprehending his arrest in Crime NO.61/2013 dated 20.3.2013 registered at Trombay Police Station for the offences punishable under Sections 376(1), 292(2)(a), 328, 506 read with Section 34 of the Indian Penal Code read with Sections 4, 14(1) and 17 of the Protection of Children from Sexual Offences Act, 2013.

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It is the case of the prosecution that on 20.3.2013, the present

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respondent No.2 who claims to be the victim, along with her mother, approached the Police Station and lodged a report that they were acquainted with Ahmed Ali Khan and his wife Noorjahan. The couple had a daughter viz. Rabiya. The victim was acquainted with them since her childhood. Noorjahan was running a beauty parlour, whereas Ahmed Ali was employed in Dubai. He used to intermittently visit Mumbai. The victim was assisting Noorjahan in her beauty parlour. She used to accompany her whenever there were private assignments. According to the victim, in October 2012, Noorjahan had called the victim to her place and had asked her to have sexual relations with her husband Ahmed Ali. Initially, the victim had refused, however, subsequently, she reposed faith in Noorjahan. Noorjahan had called her to sleep in her house. She had offered her a cold drink. She had added some sedative to the cold drink and therefore the victim felt giddy. When she woke up in the morning, she saw Ahmed Ali next to her. The victim was denuded of her clothes. She had asked Noorjahan as to what happened to her and at that time Noorjahan had disclosed that her husband had sexual relations with her. The victim was also informed that Ahmed Ali and Noorjahan had taken photographs of the victim and in the event that she disclosed about it to anybody, they would show the photos to the people and she would be exposed to social obloquy. She was also threatened of dire

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Mhi 3 ABA-778-13.sxw consequences. After a week, Ahmed Ali had asked the mother of the victim to send her along with his wife. The victim had accompanied Noorjahan to Vashi. Ahmed Ali had also accompanied them. They had taken the victim to a hotel and after taking rest for some time, Ahmed Ali again ravished her. Be that as it may, Ahmed Ali is not before this Court.

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The victim has further alleged that three months prior to lodging of the FIR that is precisely on 22.1.2013 she was again taken to a hotel when Ahmed Ali had ravished her. They had occupied Room No.503. In the morning when she woke up, she saw the present applicant in the said room and she realized that in the intervening night, the present applicant had also ravished her. On the basis of the said report, the crime was registered against the present applicant. It is pertinent to note that the applicant had left for Dubai on 9.3.2013.

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On 13.6.2013, the victim along with her mother had appeared before the Advocate & Notary Mr. Gregory W. D’Souza and had sworn an affidavit that the name of the present applicant has been inserted in the FIR by mistake. “In fact, the said Shamsuddin is resident of Dubai and was never available at the place of incident and the allegations made against him are made by mistake”. The mother and daughter have further contended that they had seen Shamsuddin

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in the hotel and were made to believe that he is also involved in commission of offence. However, subsequently, upon enquiries being made, it has been learnt that said Shamsuddin had not committed any offence of whatsoever nature.

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The affidavit is sworn on 13.6.2013 and was annexed to the Writ Petition No.2181 of 2013. The said Writ Petition was filed by the present applicant seeking quashing of the FIR and, therefore, the victim had sworn the said affidavit on 24.7.2013. The affidavit filed by respondent No.2 dated 24.7.2013 is taken on record and marked “X” for the purpose of identification. The Writ Petition was withdrawn by the applicant on 28.6.2013 and was disposed of. The charge-sheet is filed on 30.6.2013. However, neither the said affidavit nor the notarized affidavit/declaration find place in the charge sheet. The Investigating Officer, who is present in the Court, admits that he has not recorded the statement of the Advocate Notary. This would give an impression that the Investigating Officer was well aware that the things are settled between the victim and the applicant and therefore, did not wish to probe into it any further. The application filed by the present applicant under Sec. 438 of Cr.P.C. was rejected by the Designated Court on 11.7.2013. Hence, this application.

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It is pertinent to note that on the last occasion, in the course of

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hearing of the present application, the victim and her mother were present in the Court. They are duly represented by an Advocate and they maintain that they had arraigned the present applicant as an accused by mistake. Upon consideration of the statement of the counsel representing the victim, this Court had issued notice to the victim as to why she should not be prosecuted under Sec. 195 of the Indian Penal Code.

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This Court cannot be oblivious of the fact that there has been an amendment in the Criminal Procedure Code under Section 357 that the victim should be compensated. At present this Court has issued directions to the Government of Maharashtra to implement the Victim Compensation Scheme especially to compensate the victims of rape and children who are subjected to sexual assault. The present case is a classic example, where minor girls and their mothers would take advantage of such schemes and file false cases and then file affidavit exonerating the accused taking undue advantage of the Scheme. The Legislature and the Judiciary are concerned about the rehabilitation of victims of rape and such concern should not be misused by filing frivolous and scurrilous complaints.

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The complainant and her mother in the present case have no regard for law nor for the dignity of woman. They have taken a casual recourse to implicate innocent persons for offence punishable under Section 376 of the Indian

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Penal Code. This practice has to be nipped in the bud and has to be discouraged for the simple reason that the real victim of rape for sexual assault would never get justice and the society as well as the investigating agency would look at the genuine complaints also with a jaundiced eye. The situation is pathetic that has occurred. In the present case, in fact, the Court is inclined to take action against the victim for filing an FIR against the present applicant. However, taking into consideration the fact that she is a juvenile in conflict with law, this Court is not inclined to take recourse to prosecute her. However, since it is apparent on the face of the record that the mother of the victim has been instrumental in lodging the FIR and subsequently filing affidavits contending that they have arraigned the applicant by mistake needs to be prosecuted in the interest of justice. Since this is an application for anticipatory bail filed by the applicant, it would not be proper for this Court to initiate action against the mother of the victim. However, the learned APP submits that in the course of the trial, the prosecution would bring it to the notice of the Designated Court to consider initiating action against the mother of the victim for filing false affidavits. The fact that the victim herself has exonerated the applicant and has contended on oath that she was not subjected to any harm at the hands of the applicant, the applicant deserves the relief of pre-arrest bail.

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O R D E R

(i) The application is allowed. In the event of arrest, the applicant be enlarged

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on bail on furnishing P.R. Bond in the sum of Rs.15,000/- and one or two sureties in the like amount.

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(ii) The applicant shall give a photocopy of his Passport to the Investigating Officer and keep the Investigating Officer informed about his place of residence and his cell phone numbers for the purpose of communication.

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The application is allowed and disposed of accordingly.

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(SMT.SADHANA S.JADHAV, J.)

Shamsuddin S/O S. Basheer v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

Shamsuddin S/O S. Basheer v. the State of Maharashtra and Anr.

Case brief

What is this about?

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