Bombay High Court
Wajidali Israr Malik vs The State Of Maharashtra And Anr on 22 January, 2020
Author: Sandeep. K. Shinde
Bench: Sandeep. K. Shinde
12.BA-3299-2019.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO. 3299 OF 2019
Wajidali Israr Malik ...Applicant
Versus
The State of Maharashtra
and Anr. ...Respondents
...
Mr. Sushil M. Gaglani, Advocate for the Applicant.
Mr. S.R. Agarkar, APP for Respondent-State.
Mr. D.A. Patil, A.P.I. Dindoshi Police Station.
...
CORAM : SANDEEP. K. SHINDE, J.
DATE : 22nd JANUARY, 2020.
P.C.
Heard.
1. It is an application under Section 439 of Code
of Criminal Procedure, 1973 ("Cr.P.C." for short).
2. Applicant is seeking enlargement on bail in
Crime No.340 of 2019 registered with Dindoshi Police
Station for the alleged offences punishable under
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Sections 363, 376 of the Indian Penal Code, 1860 ("IPC"
for short) r/w Section 4 of the Protection of Children
from Sexual Offences Act, 2012 ("POCSO" for short).
3. Perused the final report. This case is
squarely covered by dictum of the Hon'ble Apex Court in
the case of S. Varadarajan Vs. State of Madras AIR 1965
942, wherein it was held thus :
"Where a minor girl alleged to be taken away by the
accused person, had left her father's protection
knowing and having capacity to know the full import of
what she was doing and voluntarily joined the accused,
it could not be said that the accused had taken her away
from the keeping of her lawful guardian within the
meaning of section 361 of IPC".
4. In this case as on the date of the incident,
the victim was 17 years and 11 months old. Evidence on
record including the statement of victim's mother, it
is indicative of the fact that the victim had
volunteered and submitted to the physical desires of
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the applicant. Additional statement of victim's mother
recorded on 15.07.2019 reinforces this fact.
5. The applicant has been in the custody since
15.07.2019. The investigation in the case is over.
6. Learned APP contended that the psychiatric
evaluation of the victim done before the alleged
incident shows victim was diagnosed with the border
line personality disorder. I have also perused the
narration of the victim to the Medical Officer which
also reinforces of the fact that she was love with the
applicant and had voluntarily joined his company. The
fact cannot be overlooked that as on the date of the
incident, the applicant had mental capacity to know
what she was doing.
7. In view of the facts of the case, the
application is allowed and the applicant is directed
to be released on bail on the following conditions.
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ORDER
(i) The applicant is directed to be released on bail on executing P.R. Bond for the sum of Rs.25,000/- with one or more sureties in the like amount;
(ii) The applicant shall not live in the vicinity /jurisdiction in which the victim resides till the charge is framed;
(iii) The applicant shall furnish the particulars of his residential address as well as permanent address and contact details to the investigating officer within seven days from the date of his release on bail;
(iv) The applicant shall not establish, directly or indirectly any contact with the victim or other witnesses;
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(vi) The prosecution is at liberty to move the Court in case, the applicant attends to influence the victim and contact her ;
8. The application is allowed in the aforesaid terms and disposed off.
9. It is made clear that observations made hereinabove shall be construed as expression of opinion only for the purpose of granting bail and the same shall not in any way influence the trial in other proceedings.
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