2024:BHC-NAG:8509
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (ABA) NO.379 OF 2024
(Dhananjay s/o Mahadevrav Sayare Vs. State of Maharashtra)
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Office Notes, Office Memoranda of Court's or Judge's Order
Coram, appearances, Court's Orders
or directions and Registrar's order
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Mr. S.V. Sirpurkar, Advocate a/w Mr. V. Dongre, Advocate for the applicant.
Ms T.H. Udeshi, APP for the State.
Mr. K. Topale, Advocate h/f Mr. D.R. Bhoyar, Advocate for assist to
prosecution.
CORAM:- URMILA JOSHI-PHALKE, J.
DATED :- JULY 31, 2024.
Heard.
2. By this application, the applicant is seeking
pre-arrest bail in connection with Crime No.215/2024
registered with Police Station Nandanvan, Nagpur for the
offence punishable under Sections 294, 323, 354, 354-A,
354-B, 354-D, 392, 452, 506-B and 511 of the Indian
Penal Code.
3. The applicant is serving as a Police Officer.
The crime is registered on the basis of report lodged by
the victim at Nandanvan police station stating that she is
resident of Damangaon Railway and she has completed her
B.Tech in Cosmetics and is pursuing her UPSC aspiration
and has joined a test series classes at Nagpur, and
therefore, residing in a rented premises along with her
friend. Her father is working as a Police Head Constable
and had attached to the Akola police station. Present
applicant is a friend of her father who is working as a
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Police Inspector and attached to Khadan police station at
Akola. Due to the old relations with the father of the
informant and he was on visiting terms at the house of the
informant.
4. The applicant was well aware about the
informant was staying at Nagpur for the purpose of her
studies. He used to call her on her mobile phone and used
to send messages as and when and also used to visit her
room. It is alleged that, the present applicant was having
ill-intentions and with sexual intent he used to
communicate with her. On some occasions he used to
communicate with her through video call. On
17/05/2024, he has abused her in a filthy language by
saying “rq dkWyxyZ vkgs] rq>h vkbZ /kansokyh vkgs” and also
sent the text messages with the similar wordings. He has
also abused her in a filthy language. She further alleged
that through video call he has shown his private part to
her and asked her to send her nude photographs to him as
well as her photographs in a swimming costume.
5. On 18/05/2024, the applicant has obtained
her phone location and called her. Thereafter at about
6:30 p.m. he came at her room and kept himself in a
hiding condition, thereafter he entered in her room and
again communicated with her in an obscene and filthy
language. He asked her “rq dqBs gksrh] dks.kklkscr gksrh]
dks.kklkscr >ksik;yk xsyh gksrh”, “fNuky jaMh dkWyxyZ]
lxG;kr lLrh dkWyxyZ] rqyk vk;q”; txk;yk ngk ek.kls
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ykxrkr dk;?” and thereafter he assaulted her. He also
attempted to remove her top and outraged her modesty.
Thereafter he snatched her mobile phone, abused her and
left the place. Thereafter, she approached to the police
station along with her friend and lodged the report. On
the basis of said report, police have registered the crime
against the present applicant.
6. Learned Counsel for the applicant submitted
that the applicant was looking after the victim as she was
residing at Nagpur and being a guardian he used to visit
her room. He submitted that victim was calling him as a
“Sugar daddy” and exchanged the various photographs
with him. He further submitted that the conduct of the
victim itself is sufficient to show her character. He further
submitted that the applicant never visited the room of the
victim and no such incident has taken place. Merely
because the activities of the victim are restrained by the
present applicant, he is implicated falsely. Even on perusal
of the recitals of the FIR no offence is made out. He
submitted that the statement of the Sakshi was never
recorded and which reveals from the affidavit which is
filed by the witness Sakshi before the Sessions Court. He
further submitted that the alleged offences are punishable
with imprisonment up to seven years for which the
custodial interrogation of the present applicant is not
required. He further submitted that the mother of the
victim approached to the brother of the present applicant
for settlement. The affidavit of the brother sufficiently
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shows that only to extract the amount from the present
applicant, this false FIR is lodged against him. Thus,
considering the nature of the allegations, the custodial
interrogation is not required. Hence, the applicant be
protected by granting anticipatory bail.
7. Learned APP strongly opposed the application
on the ground that the victim who is aged about 23 years
was subjected for the sexual harassment by the present
applicant due to which she was constrained to take
medical treatment with Dr. Gupta. Said Dr. Gupta has
forwarded her to another Psychiatrist and the said
Psychiatrist statement is also recorded which shows that
the victim has undergone the treatment as she was
harassed by the present applicant. She further invited my
attention towards the various statements of the witnesses
and submitted that the presence of the applicant at the
room of the victim is substantially established by these
statements. She submitted that the CCTV footage i.e. the
evidence in the nature of electronic evidence also
substantiate the said contentions. She also pointed out
that the statement of one of the Police Constable namely
Ashish Gulabrao Amle shows that he was deputed by the
present applicant to locate the location of the victim
wherever she goes. Thus, it is sufficient to show that
Senior Police Inspector has misused his office for harassing
the victim girl. She further submitted that the entire
investigation itself sufficiently shows the involvement of
the present applicant. As far as the retraction of the
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statement by the witness Sakshi is concerned she
submitted that due to the influence by the present
applicant who is serving as a Police Inspector, the witness
Sakshi might have retracted from her statement, and
therefore, only that reason is not sufficient to disbelieve
the case of the victim. She submitted that considering that
the present applicant is a Police Officer, if he is released on
anticipatory bail, there is every likelihood of tampering of
the witnesses and hampering of the investigation.
8. In support of her contention, she placed
reliance on the State of Jharkhand Vs. Sandeep Kumar
[2024 ALL SCR (Cri) 740] wherein anticipatory bail
application of the police officer though the offences which
are bailable and the offences for which punishment less
than seven years is provided was not considered by the
Hon’ble Apex Court. In view of that, she submitted that
the application deserves to be rejected.
9. I have heard learned Counsel for both the
parties. Perused the entire investigation papers. The
recitals of the FIR shows that the victim was taking
education at Nagpur, and therefore, she was residing on a
rented premises along with her friends. It further reveals
that there was a previous acquaintance as the present
applicant was acquainted with the family members of the
victim, and therefore, he used to visit at the room of the
victim. As per the allegation, the present applicant who
was serving as a Police Inspector at Akola has visited on
several occasions at the room of the victim, likewise on
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17/05/2024 he called her and used the obscene language
while communicating with her. Such type of text messages
was also sent to her and also demanded her nude
photographs and photographs in a swimming costume. It
is alleged that, the present applicant gave a video call and
shown his private part to her as well as outraged her
modesty on 18/05/2024 by lifting her top and also used
the obscene words which are referred in earlier part.
10. To substantiate the said contention, during
investigation, the Investigating Officer has recorded the
statement of one Sakshi Babhutkar whose statement was
recorded on the same day when the FIR was lodged that is
on 18/05/2024. She substantiated the entire allegations
made in the FIR, in her statement. Subsequently, she filed
an affidavit before the Sessions Court that no such
statement is recorded as she never visited the police
station. This fact is substantiated by the CCTV footage.
The CCTV footage panchamana shows that on
18/05/2024 the victim and the said witness Sakshi were
seen proceeding in an auto rickshaw, after the incident.
Thus, the CCTV footage sufficiently shows that the witness
Sakshi was along with the victim after the incident. The
statement of Dr. Subodh Gupta and one Dr. Shrikant
Nimborkar are also recorded which shows that Dr. Subodh
Gupta has referred the victim to Dr. Shrikant Nimborkar
who is a Psychiatrist for the treatment. The statement of
Dr. Gupta shows that he was treated the victim as victim
has disclosed to him that one Police Officer namely
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Dhananjay Mahadeorao Sayare who is a resident of
Dhamangaon is harassing her, and therefore, she is
undergoing the mental trauma. The statement of Police
Constable Ashish Gulabrao Amale is also recorded by the
Investigating Officer. From his statement, it shows that the
present applicant approached to him by making him
phone call and asked him to obtain the mobile phone call
locations of mobile number 7028478231 which is of the
victim. Thus, he has provided the mobile location of the
victim to the present applicant on his demand.
11. The statement of one Rameshwar Marotrao
Balpande is filed on record which is also recorded during
the investigation. Said Rameshwar Marotrao Balpande is
residing in a plot No.600, New Nandanvan, near N.I.T.
complex, Nagpur wherein the victim is also residing. His
statement shows that on 18/05/2024, when he was
present in the courtyard of his house, at the relevant time
one black color car came and entered into the compound.
The applicant communicated with him and also shown
him i-card. The police uniform was hanged in the said car
and the person disclosed to him that his niece is residing
in the said building, and therefore, he went in the said
building to meet the victim and subsequently he came to
know that the applicant came at the room and
misbehaved with the victim. Thus, the statement of the
various witnesses, CCTV footage and the statement of
Sakshi Babhutkar substantiates the allegations which are
lavelled against the present applicant.
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12. Admittedly, the offences alleged against the
present applicant are punishable with less than seven
years. At the same time, the status of the applicant is to be
looked into. The applicant is a Police Officer. Due to the
influence of the applicant it reveals that one of the witness
has already retracted from her earlier statement. Grant of
bail is discretionary but while using the discretion in
favour of the applicant it is to be used in a judicious
manner and not as a matter of course. The considerations
that would normally weigh with the Court while dealing
with a bail petition are the nature and seriousness of the
offence; the nature of the evidence; a reasonable
possibility of the presence of the accused not being
secured at the trial; reasonable apprehension of witnesses
being tampered with; the larger interest of the public or
the State and other similar factors relevant in the facts
and circumstances of the case.
13. In the light of the well settled principles for
grant of bail and in the light of the allegations made
against the applicant who is a Police Officer, the
observation of the Hon’ble Apex Court in the case of the
State of Jharkhand (supra) relied upon by the learned APP
are to be looked into wherein the Hon’ble Apex Court in
para Nos.9 and 10 observed as under :
“9. In the light of these serious allegations
made against no less than a senior police
officer, an essential cog in the machinery of
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law enforcement, the High Court ought not
to have taken a liberal view in the matter for
the mere asking. Considering the position
held by the respondent, even if he was
suspended from service and the charge-sheet
had already been filed against him, the
possibility of his tampering with the
witnesses and the evidence was sufficiently
high. That apart, grant of such relief to a
police officer facing allegations of
manipulating the investigation so as to
favour an accused would send out a wrong
signal in society. It would be against public
interest.
10. No doubt, none of the provisions
under which the respondent is alleged to
have committed offences entail
imprisonment in excess of seven years and
most of them were bailable offences.
Ordinarily, an accused facing the prospect of
incarceration, if proved guilty of such
offences, would be entitled to the relief of
pre-arrest bail. However, the same standard
would not be applicable when the accused is
the Investigating Officer, a police officer
charged with the fiduciary duty of carrying
forward the investigation to its rightful
conclusion so as to punish the guilty. The
respondent is alleged to have failed in this
fundamental duty as a police officer. This
consideration must necessarily weigh in with
the nature of the offences and the possible
punishment therefor. Presumptions and
other considerations applicable to a
layperson facing criminal charges may not
carry the same weight while dealing with a
police officer who is alleged to have abused
his office.”
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14. In the light of the above observations, in the
present case also though offences alleged against the
present applicant for which punishment is less than 7
years but considering the applicant is serving as a Police
Inspector and the apprehension raised by the prosecution
that if he is released on bail, definitely he would tamper
the prosecution witnesses as well as would hamper the
investigation is to be taken considerations. Moreover, the
position of the applicant was as a guardian of the victim
but it appears that he betrayed the trust of the victim and
subjected her for sexual harassment which affected her
mental fitness also. Thus, considering all these aspects, at
this stage, no case is made out to use the discretion in
favour of the present applicant. In view of that, the
application deserves to be rejected.
15. The application is rejected accordingly.
(URMILA JOSHI-PHALKE, J.)
*Divya