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Tony Ashish Rodrigues vs The State Of Maharashtra on 17 December, 2018

Sknair 4-aba-2571-18.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

ANTICIPATORY BAIL APPLICATION NO. 2571 OF 2018

Tony Ashish Rodrigues … Applicant
Vs.
State of Maharashtra … Respondent

Mr. Satyaprakash Sharma a/w Mr. Shiva Arti I/by Global Juris for
the applicant.
Mrs. G.P. Mulekar, APP for the Respondent-State.

CORAM : PRAKASH D. NAIK, J.
DATE : 17th DECEMBER, 2018.

P.C.

1. This is an application for anticipatory bail in connection with

CR No. 560 of 2018 registered with Naya Nagar Police Station for

offence punishable under Section 354-A, 509 of Indian Penal Code

and Section 10 and 12 of POCSO Act.

2. The complaint is lodged by the wife of the applicant on 8 th

November, 2018. It is alleged that the marriage between the

applicant and the complainant was solemnized in 2015. Out of

wedlock one daughter is born. The applicant is working in a

shipping company. It is alleged that in August, 2015, the father in

law of the complainant had outraged the modesty of the

complainant. He was trying to come close to her. The said accused

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has also committed the objectionable act in December, 2015. The

daughter was aged about six months in August, 2016, she was at

neighbour’s house. The complainant’s father in law went to the

house of neighbour and made the complainant’s daughter sit in an

objectionable manner and committed the alleged act of outraging

her modesty. The complainant went to the neighbour house and

shouted at him. Subsequently, the husband of the complainant

(applicant) who was on ship came to home. In November, 2017, it

was noticed that the applicant had taught the child to touch his

chest and kiss him. He also conducted several objectionable acts

making the child habituated to them which are mentioned in the

First Information Report. The First Information Report was lodged

thereafter on 8th November, 2018.

3. Learned counsel for the applicant has submitted that the

false and frivolous complaint has been lodged by the complainant

alleging the acts reflected in the First Information Report. The

documents on record itself indicates that the allegation therein are

concocted with malafide intention. It is submitted that the

complainant has initiated the proceeding under the Domestic

Violence Act in 2017. She has also filed divorce petition in

October, 2017. Learned counsel for the applicant drew my

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attention to the averments made in the divorce petition as well as

the complaint under the Domestic Violence Act. It is pointed out

that the alleged incidents referred to in the First Information

Report which were occurred in 2015 and 2016 are not reflected in

the said proceedings. Father-in-law has allegedly committed the

said acts, but, there is no such allegations in the proceedings

which were initiated prior to the lodging of the FIR. The applicant

has been attributed having committed alleged act in November,

2017. It is submitted that the photographs of birthday celebration

of the child indicates the presence of the applicant and his father

and it is seen that all the parties including the complainant had

happily celebrated birthday. Learned counsel for the applicant

also relied upon the whastapp message and pointed out the

message dated 12th November, 2018 which is after lodging FIR

which do not indicate that the relationship between the applicants

and complainant was strained. It is submitted that the applicant

had preferred an application for access of child in the proceedings

under the Domestic Violence Act initiated by the complainant. The

said application was preferred on 3rd November, 2018 and in

pursuant to that FIR has been lodged on 8 th November, 2018. It is

therefore submitted that on account of filing of the application of

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the access of the child false and concocted version is given by the

complainant in the FIR. There were no previous complaints with

regards to the alleged acts mentioned in the FIR.

4. Learned APP submitted that the complaint narrates the

incident attributed to the applicant and his father. There is no

reason to disbelieve the version of the complainant. The statement

of neighbour to whom the child has visited in August, 2016

supports the case of the prosecution. Accused has been charged

with the offence under Indian Penal Code as well as POCSO Act.

It is therefore prayed that the application be rejected.

5. I have perused the First Information Report and the

documents annexed to this application. As stated above, the

marriage between the complainant and the applicant was

performed in 2016. The victim-child is aged about 3 years. The

complaint refers to the incident of August, 2015 and 2016 qua the

father-in-law and the applicant has alleged to have committed the

alleged act somewhere in November, 2017. There are no previous

complaint with regards to the objectionable conduct of the

accused. Apparently, complainant had initiated the proceedings

under the Domestic Violence Act as well as proceeding for

dissolution of marriage. On perusal of the contents of the said

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proceedings as pointed out by the learned counsel for the

applicant, there is no reference to the conduct of father in law.

There are no allegation against applicant of similar nture in the

FIR. The photographs annexed in this application the whatsapp

message and the application for access preferred by the applicant

before the concerned Court shows that the custodial interrogation

of the applicant is not necessary. There are dispute between the

complainant and the applicant which is apparent from the

proceeding initiated by her. The FIR was lodged after in pursuant

to the application preferred by the applicant for access of the child.

I have also perused the statement of the witness. Mrs. Mule who is

the neighbour of complainant has stated that in August, 2016, the

victim child had visited her house and the father in law has also

visited her house. Statement indicate that complainant shouted at

father-in-law and she had informed her about the alleged act

committed by the father in law. Neibhour has not witnessed the

alleged incident. In the circumstance, presently interim protection

can be granted to the applicant by directing him to report the

Investigating Officer and co-operate with the investigation.

ORDER

i) In the event of arrest of applicant in connection with C.R.

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No.560 of 2018 registered with Naya Nagar Police Station, the

applicant be released on bail on furnishing P.R. Bond of

Rs.20,000/- with one or more sureties in the like amount.

ii) The applicant shall report to the Investigating Officer of the
concerned police station on 20th December, 2018, 21st December,
2018 and 22nd December, 2018 between 11 am to 1 pm till the
next date of hearing;

iii) This interim protection is granted till next date of hearing.

4. Stand over to 15th January, 2019.

( PRAKASH D. NAIK, J. )

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