STATE OF MAHARASHTRA AND ANR. v. MOHD. SAJID HUSAIN MOHD. S. HUSAIN ETC

Citation: [2007] 10 S.C.R. 995

Court: Supreme Court of India

Bench: S.B. SINHA, H.S. BEDI

Case summary

STATE OF MAHARASHTRA AND ANR. v. MOHD. SAJID HUSAIN MOHD. S. HUSAIN ETC.pdf

Judgment text

STATE OF MAHARASHTRA AND ANR. v. MOHD. SAJID HUSAIN MOHD. S. HUSAIN ETC. OCTOBER 10, 2007 [S. B. SINHA AND H. S. BEDI, JJ. ] Code ofCriminal Procedure, 1973: s. 439-Grant of anticipatory bail-Determining factors- Discussed s. 439-Anticipatory bail-Accused persons police officers and politicians-Charged with offence ofraping minor girl-Remaining underground-Sessions judge rejected their regular bail and anticipatory bail-High Court allowed anticipatory bail-Correctness ~- of-Held: Not correct as victim neededprotection-Moreover accused persons unscrupulously not complied with the conditions imposed on them and also not present before the court number oftimes-Penal Code, 1860-s. 376-Prevention ofImmoral Trafficking Act-s. 5. Penal Code, 1860: ss. 376, 342 r. w. s.

34-Agc ofprosecutrix-According to medical examination, determined to be 14 to 16years-Held: Prosecutrix being minor, her consentfor sex is not relevant-Case rightly made out under ~376 The prosecution case was that the prosecutrix was staying with her maternal aunt 'M' after her mother remarried on death of her father. She was assaulted and abused by 'M' and as a result she left the home and started working in the house ofaccused 'T' as a maid servant. In the house of 'T' some girls used to come. After few days when one girl did not come, 'T' took prosecutrixto a place where she was offered a soft drink and then against herwill, was subjected to rape. Thereafter she was regularly been sent out with various \ persons. Respondents who are politicians, police officers and . businessmen allegedly had been taking her to hotel, government ,__.. ·guest house and even to their own apartment. On 22. 04.

2007, the accused persons, named in the First Information Report took her to a hotel to take liquor. However, the accused persons started behaving indecently with her. The police came and took all ofthem to the police station. She was medically examined on 22. 04. 2007. Her Radiological (Bone) Assessment suggested her age to be between 14-16 years. (- Respondents were not named in the First Information Report. However, prosecutrix made several statements thereafter implicating the respondents. When respondents came to know that they have been named by the said girl, they absconded. They med an application for anticipatory bail before the Sessions Judge which was dismissed. Thereafter, they filed application for anticipatory bail before the + High Court which was allowed on the ground that the prosecutrix being major and having willingly consented for sex for consideration, primafacie, a case under s.

376 IPC is not made out and thahince prosecutrix was stationed in the Remand Home she waltully protected. In appeal to this Court, State contended that the High Court committed a serious error in passing the impugned judgment inasmuch as from various public documents, it is evident that the i date ofbirth ofthe prosecutrix is 28. 06. 1991 and, thus, at all material times, namely, from January 2007 to 22. 04. 2007, she was minor and in that view ofthe matter, the purported consent given by her would not be ofmuch significance; that in the First Information Report, the names of the respondents had not been taken, but in a case of this nature, the court should have considered the fact that she had been arrested. by the police and as such it is just possible that she Y was not in a position to recollect all the details. Allowing the appeal, the Court ~ · HELD: 1.

The four factors, which are relevant for considering the application for grant ofanticipatory bail, are : "(i) the nature and gravity or seriousness of accusation as apprehended by the applicant; (ii) the antecedents ofthe applicant including the fact as to whether he has, on conviction by a Court, previously undergone imprisonment for a term in respect ofany cognizable offence; (iii) the likely object of the accusation to humiliate or malign the reputation ofthe applicant by having him so arrested; and (iv) the possibility ofthe appellant, ifgranted anticipatory bail, fleeing from justice. " [Para 13] (1005-B, C, D] 2. 1. Ifthe prosecutrixwas a minor, consent on her part will pale into insignificance. She had been medically examined and her approximate age on the basis ofradiological test"'. as determined to be between 14 to 16 years. Her date of birth was recorded on 04. 07. 1996 by the Parbhani Municipal Council as '28. 06. 1991'. The said certificate was issued on 29. 05.

2007, but evidently the date of registration ofthe said certificate was 04. 07. 1996 i. e. much before any controversy arose. Three school leaving certificates had been placed 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. [Para 14] [1005-E, F, G] 2. 2. The date of issuance ofthe 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 ofher 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. [Para 15] [1005-H; 1006-A, B] 2. 3.

A mistake in regard to her age as recorded in the First Information Report or the first medical document or even in her supplementary affidavit should yield to the public documents which have been produced by the prosecution at this stage. Even before the ChiefJudicial Magistrate, she disclosed her date of birth to be 22. 06. 1991. Therefore, even according to that she was below 16 \ years of age. [Para 25] (1008-B, C] ~- 3. Out ofthe eight respondents, five are police officers, two are politicians and one is owner ofa hotel. It is not in dispute that after having come to learn that their names had been taken by the prosecutrix in her supplementary statement, they had been absconding for a long time. The respondents had not scrupulously complied with the conditions imposed upon them. Admittedly, at least on four occasions, some ofthem were not present. -. - The learned Session Judge also did not grant bail to some ofthe accused persons.

Ifon the same materials, prayer for regular baii 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 ofthe 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 be considered on its own merit withoutbeing influenced, in any way, by the judgment ofthis Court. D. G. Appeal allowed.