Bombay High Court
Mohd Irshad Mirza Mohd Iqbal Mirza vs The State Of Maharashtra , Thr Pso ... on 23 July, 2021
Bench: V. G. Joshi
1 aba 346.2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (ABA) NO.346 OF 2021
Mohd. Irshad Mirza Mohd. Iqbal Mirza
..vs..
State of Maharashtra, thr. P.S.O
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Shri Mir Nagman Ali, Advocate for applicant.
Shri H.D. Dubey, A.P.P. for non-applicant/State.
Shri S.V. Deshmukh, Advocate, assist to prosecution.
CORAM : VINAY JOSHI, J.
CLOSED FOR ORDER ON : 19/07/2021
PRONOUNCEMENT OF ORDER ON : 23/07/2021.
Hearing was conducted through Video
Conferencing.
2. At the instance of First Information Report
registered by the victim lady, Police of Jaripatka Police
Station, District Nagpur have registered Crime vide
Crime No.274 of 2001 for the offence punishable
under Sections 376(1)m 376(2)(n), 504 and 506 of
the Indian Penal Code. The applicant apprehends to
be arrested in said crime, hence he has approached to
this Court for grant of pre-arrest bail in terms of
Section 438 of the Code of Criminal Procedure. The
applicant's earlier attempt of securing pre-arrest bail
before the Sessions Court, remained unsuccessful.
Initially, this Court has granted interim protection
vide it's order dated 11.06.2021 which is prevailing
till date.
2 aba 346.2021
3. The victim lady stated in F.I.R. that in the
year 2019, she got acquainted with the applicant
through social network. In the month of September,
2019, at the instance of the applicant, she went to his
house. At relevant time, the applicant was alone at his
house. He had administered stupefying drugs to the
victim and had raped her. He also took her nude and
obscene photographs. Thereafter, all the time the
applicant threatened to the victim to make her
obscene photographs viral and under such threat, had
sexually exploited her. Moreover, on 09.11.2019 by
pressurizing the victim, the applicant took her in
Masjid for the purpose of marriage. Again, the
applicant put the victim in constant fear of making her
nude photographs viral and compelled her to stay
with him for the period of three months. During said
period, he had continuously raped her without her
will and consent. The applicant was physically and
mentally harassing the victim, therefore, she left his
place and returned to her parental house.
4. It is alleged that on 08.04.2020, the applicant
took the victim to the office of one advocate and
compelled her to sign on the deed of divorce dated
23.03.2020. Thereafter, again by threatening her to
make viral her nude photographs, he had sexually
exploited her. The victim became pregnant from the
applicant. Thereafter, she went to the Police along
3 aba 346.2021
with her mother to lodge First Information Report,
however, the Police authorities did not took
cognizance. Therefore, she had approached to this
Court by way of Criminal Writ Petition No.348 of
2021 for registration of crime. In the meantime, the
applicant got aborted fetus by obtaining necessary
directions from this Court.
5. Precisely, It is a victim's case that, first time in
the month of September, 2019, the applicant by way
of administering stupefying substance, sexually
exploited her and took her obscene photographs. Then
constantly he threatened to the victim to make viral
her nude photographs and under such threat, had
time to time sexually exploited her.
6. Learned Counsel for the applicant initially
denied the entire allegations of forcible sexual
intercourse. He would submit that, the story of
compulsion and force as has been projected by the
victim is totally false. It is contended that the victim
and the applicant were well acquainted with each
other since their childhood. In the year 2015, they
intended to marry and therefore, they went ot the
office of Sub-Registrar of which he has tendered a
payment receipt dated 06.04.2015. In order to falsify
the case of forcible sexual intercourse, the applicant
has produced several What'sapp chats to impress that
everything was consensual. According to the
4 aba 346.2021
applicant, there is no question of sexually abusing the
victim under force, because, according to him, the
victim was major and had married with him. In order
to buttress said contention, he has filed a photo copy
of 'Nikahnama' dated 09.11.2019. Learned Counsel
for the applicant also took me through the medical
papers to show that, when the applicant was
pregnant, he himself took her care and provided
necessary medical aid. He has placed on record some
medical papers to show that the victim was taken to
the Doctor in the capacity of his wife, and conceived
with consent. He has produced a photo copy of
medical identity card issued by the applicant's
employer- Central Railway to the victim in the
capacity of his wife. Moreover, he has produced some
photographs to show that everything was with
consent.
7. The informant-lady (victim) has unfolded her
side by filing written notes of submission. She has
reiterated her case in consonance with the contents of
the First Information Report. She has tried to explain
each and every adverse material which was placed
against her by the applicant. It is her stand that at the
time of first occurrence of September 2019, the
applicant had sexually exploited her under influence
of stupefying substance. At that time, the applicant
has snapped her nude and obscene photographs. All
the time, he put her in the constant fear and threat to
5 aba 346.2021
malign her image by making nude photographs viral
on social media. According to the victim, due to such
constant threat and fear, she had succumb to his
wishes. Particularly, due to threat, she went to Masjid
as well as signed divorce deed. She contended that
the affidavit of embracing Muslim faith was also
obtained by putting her under pressure. All the time
she stated that due to threat of publishing nude
photographs, the applicant compelled her to sign
various documents without making her aware the
contents thereof. As regards to What'sapp massages
are concerned, it is her case that, she had finned to be
in love with the applicant only to elicit obscene
photographs. Therefore, according to the victim, those
What'sapp massages which were sent for specific
purpose could not be treated as her consent. She has
also produced certain What'sapp massages to show
the alleged harassment. Particularly, she has produced
extract of What'sapp chat which had a reference that
the applicant is having certain photo clips.
8. The State has strongly resisted this
application by reiterating the story of sexual abuse.
According to the State, it is a case, where custodial
interrogation of the applicant is very much necessary.
Primely it is contended that the applicant is using four
mobile hand sets and other electronic devices, having
obscene and nude photograph of the victim which
they wanted to recover. According to the State, the
6 aba 346.2021
applicant got executed various documents like
Nikahnama, Affidavit, divorce deed of which the
originals are to be recovered. The applicant's
necessary samples have to be collected. Lastly, it is
contended that, the offence is very serious against a
woman. The applicant has threatened and pressurized
the victim and her family members while he was on
interim bail. There is serious threat to the life of the
victim and to facilitate the investigation, bail is prayed
to be rejected.
9. Learned Counsel for the victim by placing
reliance on the decisions in the cases of
P.Chidambaram vs. Directorate of Enforcement 2019
(9) SCC 24, Anurag Soni vs. State of Chhattisgarh,
2019 (AIR) SC 1857, Vishal Ramnayan Sinngh vs.
XYZ and anr. 2019 All M.R.(Cri) 3010 , Seema vs.
Ashwani Kumar 2006 (2) AIR Bom R 783 and
judgment of Hon'ble Supreme Court in the case of
Miss XYZ vs. State of Gujarat and anr. In Criminal
Appeal No.1619 of 2019 dated 25.10.2019, would
submit that grant of anticipatory bail at the stage of
investigation, would frustrate the Investigating
Agency in interrogating the accused and in collecting
the useful information. It is the submission that, the
consent obtained by misconception of fact is not the
consent within the meaning of Section 90 of the
Indian Penal Code. It is also submitted that the
conversion of victim to another religion is against the
7 aba 346.2021
law and therefore, the so-called marriage is void.
Therefore, the act of the applicant constitutes the
offence punishable under Section 376 of the Indian
Penal Code.
10. The focus of the argument is on the aspect of
need of custodial interrogation. Both sides have their
own stories to tell and explanation to the adverse
circumstances which are pressed against each other.
11. Learned Counsel for the applicant would
submit that after obtaining interim protection, the
applicant had attended concerned Police Station to
facilitate the investigation. He would submit that the
applicant had deposited his two mobile hand sets with
the Investigating Agency as well as gave necessary
samples for examination. Though said submission was
not disputed, however, it is categorically contended
by the State that the applicant was using two more
mobile hand sets including one i-phone, which he had
not surrendered. Those mobile hand sets containing
obscene material has to be seized and recovered. It is
contended that unless custodial interrogation is made,
it is difficult to unlock his Facebook, What'sapp,
Instagram and google drive account, where he has
stored the obscene pictures.
12. So far as, the rival allegations about
What'sapp chats and documents pertaining to
8 aba 346.2021
marriage and divorce are concerned, it is a matter of
trial. There is no denial that there were sexual
relations in between the applicant and the victim.
Moreover, the applicant has not denied that the victim
remained pregnant from him. The matter remained
for consideration is about truthfulness of the victim's
allegations of forcible sexual intercourse by use of
stupefying substance and under pressure. The
allegation is of obtaining consent by putting the victim
in threat of publishing nude photographs. Some of the
What'sapp chats, prima facie, bears reference
regarding the applicant having such clips. Though it is
argued that the marriage between the parties is void,
however, it is not a stage nor the scope of this
application to make any comments on the validity of
marriage. There are allegations that the applicant was
constantly threatening the victim and her family
members for patching up the matter.
13. No doubt, provisions of Section 438 of the
Code of Criminal Procedure are intended to safeguard
the right of individual, however, right of the
investigating agency to interrogate the accused is also
to be looked upon. The judicial discretion conferred
upon the Courts has to be judiciously exercised to
comprehend both things. The delicate balance is
required to be maintained to safeguard the interest of
both sides. In serious crime, ordinarily, arrest is a part
of investigation intend to secure several purposes. The
9 aba 346.2021
accused during interrogation may provide vital
information leading to discover of material facts and
relevant things. Nature, gravity of accusation and role
of the accused has to be properly comprehended.
14. In the instant case, initially, the Police did not
took cognizance of the report lodged by the victim for
which she was required to approach this Court. The
matter is intricate requiring investigation of several
incidents which took place during last three years.
The accuse is the only person who can ably impart the
necessary information about the things happened.
Prima facie, there is substance in the contention that,
the accused was in habit of using social media having
vital information in his exclusive knowledge. In such
peculiar facts, grant of anticipatory bail at the stage of
investigation may frustrate the right of interrogating
agency of collecting useful information. No one can
predict as to in which direction the investigating
agency would get clue during the course of
interrogation. The offence is of serious nature which
requires proper investigation for reaching to the truth.
Therefore, it is not a fit case to grant pre-arrest
protection, hence, Application stands rejected.
JUDGE
Trupti
