Allowed

Mohammed Suleman Farooqui v. the State of Maharashtra and Anr.

Bombay HC20 Oct 2021ABA/1528/2021

Case brief

AI extract

What is this about?

This judgment grants pre-arrest bail to a public servant accused of offences under the IPC and POCSO Act. The court found the FIR unbelievable due to its delayed registration and lack of medical evidence, thereby allowing bail with conditions.

What did the court decide?

Application disposed granting bail with conditions to not contact complainant/children, not enter their residence, not influence witnesses, surrender mobile phone, and submit to medical examination.

Mohammed Suleman Farooqui Vs the State of Maharashtra and… — Dowry and Cruelty | Bombay HC (2021)

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BDP-SPS-TAC

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BHARAT DASHARATH PANDIT

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Digitally signed by BHARATDASHARATH PANDIT Date: 2021.11.08 14:28:23 +0530

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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ANTICIPATORY BAIL APPLICATION NO. 1528 OF 2021

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Mohammed Suleman Farooqui

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…. Applicant.

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V/s

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State of Maharashtra & Anr.…. Respondents.

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Mr. Madhulkar P. Dalvi for the Applicant.

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Mr. Ajay Patil, APP for Respondent No.1/State.

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Mr. Aabad H. Ponda, Senior Advocate a/w Mr. Bhomesh Bellam for
Respondent No.2.

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Mr. Sukumar Patil, PSI, RCF Police Station, present.

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 CORAM: NITIN W. SAMBRE, J.

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 DATE: OCTOBER 20, 2021

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P.C.:-

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1]Applicant, a public servant, is seeking pre-arrest bail in C.R. No.

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433 of 2021 registered with RCF Police Station, Chembur for the

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offence punishable under Sections 498A, 377, 323, 504, 506 of the

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Indian Penal Code and Sections 8 and 12 of the POCSO Act.

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2]On 8/6/2021, complainant Rubina lodged an FIR alleging that
she got married with the Applicant on 8/7/2001 at Mahim, Mumbai
during which period, her parents gifted her 60 Tolas of gold and two
diamond sets and other belongings for domestic use.

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3]Out of the said marriage, two children were born viz daughter
Manaal on 24/11/2004 who is today aged about 16 years and son
Sarmad on 7/12/2005 who is today aged about 15 years. It is alleged
in the FIR that present Applicant started ill-treating the complainant
since 2012 before which in 2006 the Applicant had an affair with a
boy at Gorakhpur which was objected to by the Applicant. It is further
alleged that in 2011, Applicant subjected his son to sexual assault by
touching his private parts inappropriately. Further contention is, an
amount of dowry of Rs 10 lakh was demanded for starting business
out of which two Laptops and Unicorn Motor-Cycle were purchased. It
is further claimed that even I-phone was also demanded. SRA Room
in Dharavi area in the name of the complainant was mortgaged against
the loan of Rs 5 lakhs without her consent. Since Applicant was
having an affair with another lady since 2015, he continued ill-
treatment to complainant and children. It is further claimed that even

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on 21/3/2021, Applicant again inappropriately touched his son. As
such, the offence in question.

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4]Submissions of Mr. Dalvi, learned Counsel for the Applicant are,
the entire contents in the FIR are completely cooked up by way of
afterthought, as the Applicant had already given divorce (by
pronouncing Talaq) to the complainant way back in March, 2019. It is
claimed that the FIR contains such allegations which are as old as
eight years for which there is no convincing explanation. He would
claim that complainant has instigated children against the Applicant-
father and as such perusal of the FIR depicts that Applicant is falsely
implicated in the crime.

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5]Countering the aforesaid submissions, learned APP supported by
Mr. Ponda, learned Senior Counsel for the complainant, would urge
that custodial interrogation of the Applicant is necessary for
investigation as vehicle, laptop, amount and mobile of the Applicant
are required to be recovered. It is also claimed that Applicant’s
medical examination is also required to be carried out. Mr. Ponda has
drawn support from the judgment of the Apex Court in the matter of

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P. Chidambaram vs. Directorate of Enforcement reported in (2019) 9
SCC 24, particularly para 60, so as to claim that Applicant’s custodial
interrogation is required. Mr. Ponda would also draw support from
the judgment of the Apex Court in the matter of Mayank Pathak vs.
State Government of NCT of Delhi and Another reported in (2015) 11
SCC 798.

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6] Considered rival submissions.

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7]From the rival contentions, it appears that Applicant and
Complainant got married on 8/7/2001 and gave birth to two children
viz daughter and son who are now 16 and 15 years of age respectively.

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8]The FIR is based on certain incidents which are as old as of

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2005, as it is claimed in vague words that Applicant was ill-treating
the complainant.

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9]It is further claimed that since 2015, Applicant was in relation
with third lady by name Roshan. Relation of the Applicant with third
lady, in my opinion, at this stage cannot be termed as illegal as second

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marriage under religious law by which parties are governed is
permissible. But for bald allegation, no evidence is discovered to
substantiate the same. Apart from above, it is required to be noted
that in March, 2019 Applicant claimed to have given Talaq to the
complainant and it is subsequent thereto old issues are cropped up by
the complainant for registration of the offence.

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10]Though it is claimed that Applicant’s custody is warranted as he
might influence the victim, however it is required to be noted that
grown up children have never complained about alleged incidents to
any other person than the complainant. Apart from above, Applicant
is very much available for investigation, particularly for medical
examination. Narrations in the FIR further depict that Stridhan, if any,
or belongings of the complainant can be recovered in appropriate
proceedings, if any, taken out by the complainant. Rather, story
narrated in the FIR appears to be unbelieveable as there is no plausible
explanation comingforth for delayed FIR and about suppression of the
fact of divorce being given by the Applicant.

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11]The marriage of Applicant with Complainant is of 8/7/2001. It

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is claimed that Applicant and Complainant resided together till
6/3/2020, in spite of Talaq. The Complainant is claimed to be
supported by three Brothers. However, no explanation is coming forth
as to why the F.I.R. is delayed. No medical documents are placed on
record about alleged assault on daughter in 2019 of which complaint
is lodged in 2019. Similarly the alleged sexual assault on son in 2011,
2016 etc. is reported in 2021. The affection of father with son is
sought to be co-related to 2021 incident so as to invoke provisions of
POSCO. The allegations are not supported by medical evidence The
medical certification of Homeopathic Doctor is not supported by any
earlier treatment given to patient. The alleged post on instagram by
the Applicant in relation to kids is based on presumption. The story of
the Complainant, for the aforesaid reasons appears to be unbelievable

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story. As such, judgment of the Apex Court in the matter of Mayank
Pathak and P. Chidambaram will be of hardly any assistance. The
gravity of offence cannot be inferred against the Applicant.

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12]For the aforesaid reasons, Applicant’s false implication in the
offence cannot be ruled out.

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13]As such, in my opinion, Applicant deserves to be released on bail
in the event of his arrest in C.R. No. 433 of 2021 registered with RCF
Police Station, Chembur for the offence punishable under Sections
498A, 377, 323, 504, 506 of the Indian Penal Code and Sections 8 and
12 of the POCSO Act on the following conditions:-

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(i) Applicant shall execute P.R. Bond in the sum
of Rs 15,000/- with one or more sureties in the
like amount.

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(ii) Applicant shall not contact the complainant or
children without prior written orders from the
competent court.

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(iii) Applicant shall not establish directly or
indirectly any contact with the children.

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(iv) Applicant shall not enter the place of
residence of the complainant and children.

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(v) Applicant shall neither influence the
witnesses in any manner nor tamper with the
evidence and shall not directly or indirectly send
any offending messages on social media or

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otherwise.

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(vi) Applicant shall attend the trial regularly.

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(vii) Applicant shall within four weeks from the
date of his release surrender his mobile phone to
the Investigating Officer and shall cooperate with
the Investigating Officer for carrying out medical
examination.

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14]Application is accordingly disposed of.

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(NITIN W. SAMBRE, J. )

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Mohammed Suleman Farooqui v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

Mohammed Suleman Farooqui v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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