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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