1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION ANTICIPATORY BAIL APPLICATION NO.2418/2009 Adnan Sami Khan Applicant Vs. State of Maharashtra Respondent Mr.Amit Desai a/w Mr.Vaibhav Krishna i/b Juris Consillis for the applicant Mrs.Shinde,APP for the State Ms.Edityh Dey for the Intervener/Ori.Complainant CORAM: MRS.MRIDULA BHATKAR,J. (VACATION COURT) DATE : 26th MAY,2009. P.C. . This application is filed for anticipatory bail by the applicant/accused as the applicant/accused is prosecuted for the offences punishable under sections 323,504,498-A,406,506, 420,384 ,511 read with Section 34 of the Indian Penal Code vide C.R.No.152/2009. A complaint was given by the wife of the 2 applicant/accused in March,2009 and thereafter he preferred anticipatory bail application which was rejected by the Sessions Court. 2] In the present application the learned counsel for the original complainant was allowed to intervene and was heard at length. 3] The original complainant and the applicant/accused(for short applicant) are the husband and wife . The original complainant has filed divorce petition on the ground of cruelty against the applicant and the same proceedings are pending. The police have recorded statements of the witnesses. The F.I.R.and the statements disclose that the applicant used to torture mentally and physically to the original complainant in various ways . It appears from the statements and the record that applicant/accused was leading free life regardless to sanctity of wedlock between the original complainant and the accused. It is alleged that the applicant is a drunkard and has assaulted his wife 5-6 occasions for which she has lodged complaints with the police station which are registered as N.C.complaints. 3 4] The main ground for rejection of anticipatory bail and principal objection raised by the original complainant and the prosecution to this application s that the accused is in possession of obscene photographs and may be hav and ing copies of obscene V.C.D.in which obscene pictures of original complainant are appearing.The said V.C.D.was taken in custody by the Sessions Court and at present it is under the seal with the Registrar of the Sessions Court.However,it is contended by the prosecution that the applicant may be having copy of the said V.C.D.and the applicant is not handing over those obscene photographs and hence his custody is required. 5] At the time of deciding anticipatory bail application the Court has to consider number of aspects and the main aspect is the nature and gravity of the accusation . In the present case the obscene VCD is already handed over to the Sessions Court and is in the custody of the Court. The applicant has denied to have copy of the said VCD and has also denied to be in possession of any obscene photographs of the original complainant. The learned APP and learned counsel for the original complainant,however, have reiterated that such photographs are taken out and they are with 4 the applicant.Thus,such accusation and denial is only word against word situation at present before the Court. 6] The learned counsel appearing for the original complainant has fairly stated that those photographs were taken out with the consent of the original complainant by the applicant and therefore, she has knowledge of the existence of such photographs. 7] While considering the evidence in order to ascertain the nature and gravity of accusation the Court has to see what are the concrete instances of cruelty. Assuming that the applicant has threatened the original complainant that he will use those obscene photographs or VCD if she would not sign the documents in respect of the property, then no doubt giving such threats of blackmailing amounts to cruelty. However,if the photographs were taken out then they were by consent of the original complainant and she and the applicant being wife and husband it was a private affair between the parties which had unfortunately taken this sleazy turn. No doubt if such photographs or VCD are circulated ,displayed or shown to anybody then will definitely injure the honour of the womanhood of the original complainant. However,this is an 5 apprehension.There are no specific instances of the display or circulation of such photographs by the applicant at any place and thus,the accusation that the applicant may abuse or misuse the photographs or VCD is based on apprehension which can be taken care of by putting specific conditions. 8] There is evidence and charges of mental and physical harassment by the applicant and for which criminal case is filed by the original complainant. However,it is to be noted that the prosecution has not shown any medical certificate of the injuries or physical assault on the original complainant. 9] While deciding anticipatory bail application the Court has also to consider any chance of applicant/accused to flee away from the place where the case is lodged against him and criminal antecedents against him. The learned A.P.P. has submitted a chart of six N.C.complaints lodged against the applicant . However,five out of them were lodged by the original complainant and one was lodged by the Cook for assault. These criminal cases which are lodged by the original complainant in fact are from 30th January,2009 onwards.Thus,it appears that these are all offshoots of the same incidents of cruelty and also the divorce petition which is 6 pending before the Family Court. Besides that there are no other criminal cases against the applicant . 10] The applicant though Pakistani national is settled in Mumbai since 1993 and it is contended that he is tax payer since 1999 and is having residence in Mumbai. Considering the nature and the gravity of the accusation I am of the view that it is a fit case to grant anticipatory bail . 11] It is necessary to mention that during the course of arguments the learned counsel appearing for intervener pointed out that the copy of the anticipatory bail application which is at Exh.K annexed to the present application for anticipatory bail is not the same which is filed before the learned Sessions Court. In support of her submissions she has filed an affidavit which is taken on record. The learned counsel appearing for the applicant/accused has admitted the mistake and has tendered apology that by mistake the draft is attached , which is accepted. Hence the application for anticipatory bail is allowed with following conditions. 7 [A] Application for anticipatory bail is allowed. [B] In the event of arrest the applicant/accused be released on bail of Rs.30,000/- with two local sureties (each of Rs.15,000/-) . [C] The applicant/accused will not leave the Country without permission of the Sessions Court. [D] The applicant /accused shall furnish the schedule of his foreign tour if at all he has to go out for personal work or performance or any other work. [E] The applicant/accused shall not tamper with the prosecution evidence,shall not pressurise the witnesses ,and shall not circulate,display or use in any manner any obscene photograph, if any, or VCD pertaining to the original complainant. [F] The learned counsel appearing for the applicant/accused has submitted that the applicant/accused is going to perform in Canada via other countries from 28/5/2009 till 5/6/2009 for which he prayed that the applicant/accused may be permitted to leave 8 India for this particular period. Permission granted subject to handing over detail programme alongwith address of the residential accommodation itinerary to the Investigating Officer till tomorrow i.e.27/5/2009 and the applicant/accused will report to the Investigating Officer on 7th June,2009. [G] The applicant/accused thereafter to surrender his passport to the Investigating Officer. [H] The applicant/accused to co-operate the investigating agency. [I] Violation of any condition will amount to cancellation of bail forthwith. (Mrs.Mridula Bhatkar,J.) (MRS.MRIDULA BHATKAR,J.)