1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application No. 1923 of 2010. (Dr. Alvina Khan D/o. Rafique Khan Vs. State of Maharashtra and others) Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. R. B. Upadhyay, Advocate for the applicant. Mr. D. B. Patel, APP for the State/non-applicant no. 1. Mr. S. Zia Quazi, Advocate for non-applicant nos. 2 to 8. Mr. R. J. Mirza, Advocate for non-applicant nos. 9 and 10. CORAM : M.N. GILANI, J. DATE : 22 nd JUNE, 2011. Heard. Dr. Alvina Khan, who is the complainant in Crime No. 291/2010, registered at Police Station Gittikhadan, Nagpur, for the offence punishable under Sections 376(2)(g), 420, 465 and 384 of Indian Penal Code, has moved this application invoking the jurisdiction of this Court under Section 439(2) of Code of Criminal Procedure, with a prayer to cancel the anticipatory bail granted by the Additional Sessions Judge, Nagpur, in Misc. Criminal Application Nos. 2197/2010 and 2191/2010, dated 25/11/2010. In the month of February, 2003, the applicant had married to one Firoz, resident of Amravati and from this wedlock she had two children. In the year 2007, there was divorce between them. The applicant came back to Nagpur and started practicing medicines. She holds degree in Unani medicines. The accused no. 1 Abdul Mannan Khan (non-applicant no. 7 herein) is recognized as 'AMIL'. He practices black magic. The non- applicant nos. 2, 4, 5 and 6 are the sons of non-applicant no. 7. The non-applicant no. 3 is the wife of non-applicant no. 2. While the applicant was in her clinic, which is at Sangarsh Nagar, Nagpur, the non-applicant no. 7 accompanied by non-applicant nos. 4 to 6 and 8 approached her. Then they recited some 'Ayat' from Quran and 2 obtained Rs.500/- from her. The applicant had another clinic in Swagat Nagar, Police Line Takli, Nagpur. On next occasion, all these non-applicants assembled there. Then they asked her to drink some liquid. When she became drowsy, at that time her signatures were obtained on blank papers and she also parted away with amount may be thousand. In August, 2008 the non-applicant no. 2 came to her and stated that the clinic is not a better place to perform rituals and, therefore, he had booked one room in a hotel. He carried her to the hotel, which is near the S.T. Bus Stand. In the room, three other non- applicants were present. They demanded Rs.1,50,000/- from her. When she started leaving the room, the four non-applicants had committed rape on her and took her photographs. The applicant without asking, removed Rs.2,00,000/- from the cupboard of her father. She gave it to some of the non-applicants. Still they did not return her photographs. In July, 2009 the non-applicant no. 3, who is the wife of non-applicant no. 2, extracted some time Rs.25,000/- and some time Rs.50,000/- from her by promising that her photographs would be returned. It is also stated that the non-applicant no. 3 had ascertained her bank account number and deposited some amount in her account. In fact, this was all done to cheat her. It is further stated that her father does not deposit amount in bank, but keeps it in the cupboard. On 23/09/2009, when her father counted the cash amount, he found Rs.6,00,000/- short. That time she disclosed her father about the incident of extortion carried out by the non- applicants. However, she did not disclose him the fact of sexual assault. The non-applicant no. 2 had executed a promissory note in her favour and promised to return Rs.6,50,000/- till 01/11/2010. Meanwhile, in September, 2010 she had filed maintenance application against her husband by name Firoz. She also got a notice from the non-applicant no. 2 for restitution of conjugal rights. This was followed by the non-applicant no. 2 filing a petition for 3 restitution of conjugal rights in the Family Court at Amravati. The non-applicant nos. 9 and 10 are the advocates, who tried to intervene in the matter by quoting fees of Rs.10,00,000/-. On 25/10/2010, the applicant lodged F.I.R. and on that basis an offence came to be registered. The non-applicants moved applications for grant of bail, which were heard by learned Additional Sessions Judge, Nagpur. After examining pros and cons of the matter, learned Additional Sessions Judge, allowed the applications. However, it was to remain in force for a period of one month from the date of filing of charge- sheet, if any. It is clarified that this order has been extended from time to time. It is the case of the applicant that considering nature and gravity of the offence, learned Additional Sessions Judge should not have exercised discretion of issuing directing under Section 438 of Code of Criminal Procedure. In the offences of such nature, custodial interrogation is must. This aspect was ignored by learned Additional Sessions Judge. Antecedents of the accused were not at all considered. Although it is a case of gang rape, exercising the discretion under Section 438 of Code of Criminal Procedure is wholly unwarranted. It is further stated that the order of learned Additional Sessions Judge, being perverse and contrary to the well settled principle, is liable to be quashed. On behalf of the State, the reply is filed reiterating the allegations in the F.I.R. Lastly, it is stated that the investigation is completed and the Investigating Officer is likely to file charge-sheet. The prayer in the reply is that, appropriate order may be passed. The facts narrated in the F.I.R. are unusual and unfortunate. To narrow down the controversy, learned Additional Sessions Judge formulated few points for consideration. They are as under : 1. The prosecutrix is doctor by profession and her father belongs to legal fraternity. 4 2. The complaint has been lodged after the consultation and advice of other. 3. That the complaint is lodged belatedly after the period of 2 years of alleged rape. 4. The complaint allegedly shows that for consideration of some amount/refund of amount paid, the parties had agreed for settlement. 5. There are matrimonial disputes pending between the prosecutrix, her first husband Firoz and present applicant no. 1 Abrar. 6. A large amount has been paid in cash (6.6 lacs) without being observed by the father for long period time, namely from September 2008 to September 2009. 7. That, throughout the period from August, 2008 till lodging of complaint i.e. October, 2010 the prosecutrix was carrying on her regular affairs. 8. There was alleged pressure of disclose of nude photographs of the prosecutrix. 9. The alleged incident of rape is disclosed for the first time in October, 2010. 10. In prior correspondence there is no mention of rape. In fact alleged settlement between the parties was reached on 30/09/2009. 11. On perusal of objections and various replies, applications, and allegations filed on record in this application as well as to the police, it s seen that a major role in this investigation and all the activities have been taken by the father of the prosecutrix. 12. No. of complaints has also been registered against him by some of the accused. The date on which disclosure was made is 25/10/2010, whereas the offence of sexual assault had taken place in August, 2008. Thereafter, the non-applicant continued to extract the huge 5 amount from the applicant. The applicant resides with her father and younger brother. Learned counsel for the applicant stated that her father is Ex-Judicial Officer. Till her father counted money i.e. 23/09/2009, nothing was disclosed. Events like exchange of notices between the parties, she filing maintenance application against her husband Firoz, the non-applicant no. 2 issuing her notice and thereafter filing petition for restitution of conjugal rights are relevant. The applicant, who is in medical profession had married Firoz in 2003, delivered two children then divorced her husband. It is very strange that she thought it fit to keep mum till 25/10/2010. In paragraph no. 19 of the order impugned, learned Additional Sessions Judge observed that, 'prima-facie considering the allegations that the entire act was a conspiracy to involve the prosecutrix, it appears to be unreasonable that the accused and prosecutrix would book the room in their names. Prima-facie again it is said that other brothers were already in the room. If the room booked by the accused Abrar and prosecutrix then it is difficult to ascertain, as to how other brothers were already in the room'. During the course of argument, explanation offered by learned counsel for the non-applicants is that after marriage between the non-applicant no. 2 and the applicant, they had stayed in a room. The learned counsel for the non-applicants relied upon the decision in Savitri Agarwal and others Vs. State of Maharashtra and another, (2009) 8 Supreme Court Cases 325. The Hon'ble Supreme Court observed that, 'very cogent and overwhelming circumstances are necessary for an order directing cancellation of bail already granted'. It is true that in the normal circumstances where offences punishable under Sections 376(2)(g), 420, 465 and 384 of Indian Penal Code are alleged, even regular bail is refused. However, in the peculiar facts and circumstances of the case, learned Additional Sessions Judge thought it fit to exercise the discretion under Section 438 of Code of Criminal Procedure and in my view, rightly so. In the result, I do not find any merit in this application. 6 The application is rejected. It is clarified that, the applications, if any, made either for extension of anticipatory bail or for grant of regular bail shall be decided uninfluenced by the observations made hereinabove. JUDGE *Sdw