1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 1713 OF 2009 Abdul Rahim A. Hakim @ Babu Age : 37 years, Occu.: Contractor, R/o : Shivaji Nagar, Jalgaon Tq. and Dist. Jalgaon .. Applicant Versus The State of Maharashtra, (Copy to be served on the Public Prosecutor, High Court, Bench at Aurangabad) .. Respondent WITH CRIMINAL APPLICATION NO. 1731 OF 2009 Mohsin Raufoddin Shaikh, Age : 26 years, Occu.: Auto Driver, R/o Shivaji Nagar, Jalgaon, District : Jalgaon .. Applicant Versus The State of Maharashtra (P.I. Jilha Peth Police Station, Jalgaon) (Copy to be served on Public Prosecutor, High Court of Judicature of Bombay Bench at Aurangabad .. Respondent 2 WITH CRIMINAL APPLICATION NO. 1684 OF 2009 1] Ashraf Khan Firoz Khan Age : 28 years, Occu.: Business, R/o Shivaji Nagar, Jalgaon, Tq. and Dist. Jalgaon 2] Md. Farid Abdul Gaffar Age : 37 years, Occu.: Business, R/o Shivaji Nagar, Jalgaon, Tq. and Dist. Jalgaon 3] Majharkhan Liyakatkhan Age : 26 years, Occu.: Education, R/o Shivaji Nagar, Jalgaon Tq. and Dist. : Jalgaon 4] Akil Gulab Patel, Age : 30 years, Occu.: Business, R/o Shivaji Nagar, Jalgaon, Tq. and Dist. : Jalgaon 5] Asif Khan Ajiz Khan Age : 35 years, R/o Shivaji Nagar, Jalgaon Tq. and Dist. Jalgaon 6] Jamir Khan Yusuf Khan Age : 32 years, Occu.: Labour R/o Raja Colony, Mehrun, Jalgaon, Tq. and Dist. Jalgaon .. Applicants Versus The State of Maharashtra, (At the instance of Jilha Peth Police Station, Jalgaon in C.R. No. 139 of 2009, Copy to be served through, G.P. Office, At Aurangabad Bench of Bombay High Court) .. Respondent 3 Mr. Joydeep Chatterjee, Advocate for the applicant (in Cri. App. 1713 of 2009) Mr. R.S. Shinde, Advocate for the applicant (In Cri. App. 1731 of 2009) Mr. Javed R. Shaikh, Advocate for the applicant (I(n Cri. App. 1684 of 2009) Mr. J.S. Gavane, APP for the respondent-State CORAM : A.V. NIRGUDE, J. DATED : 11th JUNE, 2009 P.C.:- 1] All the three applications can be decided by this common order, as all the applicants are seeking bail in the same offence. The applicants are seeking bail in crime no. 139 of 2009 registered by Jilha Peth Police Station, Jalgaon. The offences alleged against the applicants are punishable under section 363, 366, 506 r/w. 34 of the Indian Penal Code. 2] One Bhavna Devidas Kulkarni on 5.5.2009 lodged her complaint with the Police, stating that she is an unmarried person and she was in love with 4 the Applicant Ashraf. She stated that initially she was inclined to marry Ashraf but subsequently, her family members tried to arrange her marriage with a person of her caste. She alleged that Ashraf met the other party and told them that he was in love with the complainant. Because of his intervention, the attempt to arrange this marriage failed. Thereafter, she stated that Ashraf was trying to contact her telephonically and was asking her to marry him. On 29.4.2009 she stated at about 7:25 am while she was alone in her house, Ashraf called her and told her that he would come to pick her up at about 8:30 am. He also told that this time they would elope to get married. She said Ashraf issued a threat that if she failed to go with him, he would ruin her house and family members. Accordingly, Ashraf came in an auto-rickshaw to her house. The complainant joined him. The applicant Farid was also sitting in the auto-rickshaw. All of them then went to Jalgaon Railway station, where other applicants were also present. They all bought railway tickets for the complainant and the applicant Farid. Thereafter, the complainant and 5 applicant Farid boarded a train and went towards Mumbra. The complainant and Farid then stayed at Mumbra until 3.5.2009. On that day, the applicant Ashraf made a phone call and told them that they should come back to Jalgaon. Accordingly, they boarded a train on 3.5.2009 and came in the morning on 4.5.2009 to Jalgaon. The applicants and others were present at the railway station. They took the complainant to a house in Raza Colony of Jalgaon and asked the complainant to stay there. They threatened her that if she would leave, she would face dire consequences, however, on 5.5.2009, the complainant stated, she left the said house and then lodged the complaint. 3] The accusation of abduction and complaint under section 366 of the Indian Penal Code is very weak. It appears the complainant on her own went with the applicants. What is more surprising is that even though she stayed away from her house for six night and days she was not compelled to marry or she was not compelled to have sexual intercourse etc. On the face of it, the prosecution case is so 6 weak that even the learned Additional Sessions Judge, who dealt with the applications, seeking bail in this case should have granted them bail, but to my surprise, the learned Additional Sessions Judge, Shri R.S. Kharkar, not only rejected the applications, but made certain observations which are not borne out of the record. I must quote the following sentences of his order:- “If at all there was love affair between complainant and petitioner no.1, then petitioner no. 1 (Ashraf) ought to have accompanied the complainant but that has not been done so. Therefore, prima facie some ulterior motive is made out by the prosecution of (sic) petitioner no.1 of abducting the complainant Bhavana.” Even the other observations in the order indicate that the learned Additional Sessions Judge, could not appreciate the facts of the case, properly. 4] There is more surprising and amazing aspect to the orders passed by this Judge. The learned Judge passed on the same day one order in Marathi rejecting the application of the applicant Mohsin. The applicant Mohsin, is not directly involved in 7 this case. It is alleged that he is the auto- rickshaw driver, who had taken the complainant and two other applicants from her house to the Railway station on 29.4.2009. Besides this, no role is attributed to the applicant Mohsin. It is alleged that applicant Mohsin was an acquaintance of the other accused. Despite of this minuscule role of this applicant, the learned Judge, rejected his application saying that “if he is released on bail it would hamper the progress in the investigation.” By 19.5.2009 when these orders were passed, the applicants were in custody for 14-15 days and most probably most of the investigation must have been over. 5] The applicants deserve bail. The applicants are released on bail of Rs.5,000/- (Rs. Five Thousand) each with one surety each in the like amount. 6] The applications stand disposed of. (A.V. NIRGUDE, J.) arp/11june9/cr1713.09