Bombay High Court
Atikur Rehaman Mohammed Hasan ... vs The State Of Maharashtra And Ors on 27 April, 2022
Bench: Prakash Deu Naik
rpa 1/7 1ia2828 of 2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL INTERIM APPLICATION NO.2828 OF 2021
IN
CRIMINAL APPEAL NO.956 OF 2021
Atikur Rehaman Mohammed
Hasan Ansari @ Janab .. Applicant/Appellant
Versus
State of Maharashtra & Ors. .. Respondents
......
Mr.Mateen Shaikh i/b. Mr.Ansar Tamboli, Advocate for the Applicant/
Appellant.
Mr.Arfan Sait, APP for the Respondent - State.
Ms.Devyani Kulkarni, Advocate for Respondent No.2.
PSI Sanjay Surve, Chunabhatti Police Station, Mumbai, present.
......
CORAM : PRAKASH D. NAIK, J.
DATED : APRIL 27, 2022.
P.C. :
Leave to amend to correct the title of the application
relating to the address of the applicant. Amendment may be carried
Digitally
out forthwith.
signed by
RAJESHRI
RAJESHRI PRAKASH
PRAKASH AHER
AHER Date:
2022.04.29
15:53:27
+0530
2 This is an application for suspension of sentence and
grant of bail during the pendency of Criminal Appeal No.956 of 2021,
challenging the judgment and order dated 13th October, 2020, passed
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by the Special Judge POCSO Act, convicting the applicant/appellant
for the offences punishable under Sections 8 and 10 of Protection of
Children from Sexual Offences Act ("POCSO Act", for short). For the
conviction under Section 10 of POCSO Act, the applicant has been
sentenced to suffer rigorous imprisonment of fve years and to pay fne
of Rs.5,000/-. For conviction under Section 8 of POCSO Act, he has
been sentenced to suffer imprisonment of three years and to pay fne
of Rs.3,000/-.
3 The prosecution case is that the accused had molested
the victim girls in Madrasa where he was a teacher. The victim girls
were attending the classes at Madrasa. One of the victim has disclosed
to her mother that the accused had molested her. It was revealed that
another victim girl was also molested by the accused at Madrasa. First
Information Report ("FIR", for short) was registered and investigation
proceeded. Charge-sheet was fled.
4 The victim girls were examined as P.W.2 and P.W.4. FIR
was lodged by mother of P.W.2. She was examined as P.W.1.
5 Learned advocate for the applicant submitted that during
the trial the applicant was granted bail on certain conditions. He has
not committed breach of said conditions. The applicant is in custody
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for the period of about 22 months. The maximum sentence imposed by
the trial Court while convicting the applicant is 5 years. There is delay
in lodging the FIR. Several students were attending the classes and it
is not possible to commit such an act. There are differences between
two sects and since the applicant is belong to one of the sect, the
applicant has been falsely implicated in this case. The victims were
wearing long scarf and it would not be possible to commit such an act.
The students in the Madrasa used to sit in a big hall which is without
pillars, and, hence, it is diffcult to believe that accused could do
alleged act. While on bail, the applicant was residing at Room No.205,
Khadavali, Taluka - Kalyan with his friend Mohd. Khalid Shaikh. The
affdavit jof applicantss friend Mohd. Khalid is tendered to support
submission that applicant would reside with him, if released on bail.
6 Learned APP submitted that the the version of the
victims cannot be disbelieved. Specifc role has been attributed to the
applicant. There is no effective cross-examination on the motive for
false implications. The motive attributed for false implicated is vague.
There are two victims who were subjected to molestation by the
accused. The accused has no permanent place of residence. In the
application, applicant has not given correct address of his residence.
In the affdavit fled by the friend of the applicant, it is stated that the
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applicant is residing at Almas Park, Gavdevi Mandir Road, Prime
Galexi, Room No.205, Khadoli (West), Taluka-Kalyan, District-
Thane. However, there is nothing to indicate that the applicant was
residing with the friend who has fled the affdavit. No documents were
furnished corroborating the fact that applicantss friend is residing at
the place stated in affdavit fled by the him. In the application for
modifcation of the previous order granting bail dated 14 th August,
2017, the applicant had contended that he had shifted his residence to
Bhiwandi.
7 In rejoinder, the learned advocate for the applicant has
produced the documents in the nature of the electricity bill and the
voterss card of applicantss friend who had fled affdavit before this
Court and submitted that the documents shows that the friend of the
applicant is residing at the address mentioned in the affdavit.
8 The applicant was on bail during the trial. He is in
custody after conviction and has undergone custody of about 22
months. The maximum sentence imposed by the trial Court while
convicting the applicant is 5 years for the offence under Section 10 of
POCSO Act. The evidence of P.W.2 and P.W.4 who are victims mentions
that they were attending the classes at Madrasa. From the evidence of
P.W.2, it is apparent that the date of incident has not been mentioned
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by her. In the cross-examination, she has stated that in the Madrasa
all the students sit down surrounded by teacher. At that time of
incident 7 girls and number of boys were sitting in the Madrasa. It is
admitted that the students were making excuses for not going to the
classes. The girls wore scarf which covers body. P.W.4 stated that
there were 35 to 40 students who used to attend Madrasa. The date of
incident is not mentioned in the evidence. However, both the victim
girls stated that they were molested by the accused. However,
considering the issue raised by the defence as well as by the
prosecution, and considering the fact that the maximum sentence is of
5 years, out of which 22 months the applicant is in custody, the
sentence can be suspended on certain conditions.
9 Learned advocate for the applicant submitted that the
applicant is willing to furnish local solvent sureties. However, for a
temporary period the applicant may be released on cash bail to enable
him to furnish solvent surety. Learned APP strongly opposed the
prayer for releasing the applicant on cash bail. It is submitted that on
account of discrepancies in the place of residence of the applicant,
cash bail may not be granted.
10 It is noted that the applicant was granted bail by the trial
Court during the pendency of trial on certain conditions. The
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applicant had faced the trial. It is not the case that the applicant has
misused the facility of bail or he tried to abscond.
12 Hence, I pass the following order:
:: O R D E R ::
(i) Interim Application No.2828 of 2021, is allowed;
(ii) The sentence of imprisonment imposed vide judgment and
order dated 13th October, 2020, by Special Judge POCSO
Act, in POCSO Special Case No.249 of 2016, is suspended
and the applicant is directed to be released on bail on
executing P.R. Bond in the sum of Rs.25,000/-, with one or
more local solvent sureties in the like amount;
(iii) Applicant/appellant is permitted to furnish cash bail
security of Rs.25,000/-, for a period of six weeks, in lieu of
surety;
(iv) Applicant/appellant shall not approach the victim girl and
her family members;
(v) Applicant shall not teach at Madrasa;
(vi) The applicant/appellant shall attend the trial Court once in
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three months on frst Saturday of the month, till fnal
disposal of the Appeal;
(vii) In the event there are two consecutive defaults in attending
the trial Court, the said fact may be brought to notice of this
Court and the prosecution is at liberty to move an
application for cancellation of bail;
(viii) Interim Application No.2828 of 2021, stands disposed of
accordingly.
(PRAKASH D. NAIK, J.)
