Bombay High Court
Zubair Iqbal Dhanani vs The State Of Maharashtra on 2 February, 2021
Author: Prakash D. Naik
Bench: Prakash D. Naik
rpa 1/8 3 aba 134 2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
ANTICIPATORY BAIL APPLICATION NO.134 OF 2021
WITH
INTERIM APPLICATION NO.207 OF 2021
Zubair Iqbal Dhanani .. Applicant
Versus
State of Maharashtra .. Respondent
......
Mr.Ashok Mundergi, Senior Advocate with Ms.Shraddha Sawant,
Advocate for the Applicant in ABA.
Mr.S.V. Marwadi i/b. Mr.N.M. Nadar, Advocate for the Applicant
in IA.
Mr.Y.M. Nakhwa, APP for the Respondent - State.
PSI Sudhir Mahadev Ubale, Palghar Police Station, Present.
......
CORAM : PRAKASH D. NAIK, J.
DATED : FEBRUARY 02, 2021.
P.C. :
The applicant is apprehending arrest in connection
with C.R.No.313 of 2020, registered with Palghar Police Station,
on 24th December, 2020, for the ofences punishable under
Digitally Sections 376, 363, 323, 504 and 506 read with 34 of Indian Penal
signed by
RajeP. RajeP. Aher
Date:
Code ("IPC", for short).
Aher 2021.02.10
17:42:04
+0530
2 The complainant has alleged that she was acquainted
with the applicant. They were exchanging messages on mobile
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phone. They used to meet. The applicant had informed her that
he would marry her. He was already a married person. There was
physical relationship between them. The complainant was
pregnant. The pregnancy was terminated at the instance of the
applicant on 26th September, 2020. The applicant stopped calling
the complainant. She informed about the conduct of the applicant
to his father. She was abused and threatened. On 19 th December,
2020, the complainant called the applicant on his phone. The call
was received by his brother who threatened her of dire
consequences and threatened her that false complaint would be
lodged against her. The complainant stopped talking to applicant.
On 22nd December, 2020 at about 2:34 p.m. the applicant called
her on her cell phone and told her to meet him at his showroom
as he want to talk to her. He threatened her that if she do not
come, he would create ruckus at her residence. At about 4:30
p.m., the complainant went towards Boiser on her scooter and
reached at the show room of the applicant at 5:30 p.m. The
applicant forced her to sit in his car and took her to Nandgaon
area at isolated place around 07:00 p.m. The car was parked near
the bushes. The applicant told the complainant that he intends to
have physical relationship with her. The complainant refused. She
tried to shout. She could not come out of the car. The accused
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had bitten her lip and had forceful sexual intercourse with her.
She was dropped near the show room at about 09:00 p.m. She
walked to the place where she had parked her Scooty and went
home. The First Information Report ("FIR", for short) was lodged
on 24th December, 2020.
3 Learned advocate for the applicant submitted that the
relationship is apparently of consensual nature. The incident of
forceful physical relationship dated 22nd December, 2020, is false.
It is submitted that the applicant had relied upon the footage of
CCTV cameras installed in the showroom of the applicant. The
complainant had visited the showroom and was sitting in the
ofice of the applicant at 03:30 p.m., which is apparent from the
CCTV Footage of the showroom. The CCTV Footage further shows
that the complainant went by herself on her Scooty and the
allegation that she was forced to sit in the vehicle by the
applicant is false. It is submitted that subsequently, the
complainant has tried to change her version in the supplementary
statement and alleged that although she left the showroom on her
own, the applicant came behind her and told her that he wants to
talk to her. She followed him on her Scooty. The applicant was
waiting for her. She got down from the Scooty and at that time
the applicant pulled her in the car and took her to Alewadi beach.
rpa 4/8 3 aba 134 2021.doc
Thereafter, he told her that he would drop her at Boiser and while
returning he took the vehicle at isolated place and had forceful
sexual intercourse with her. It was also alleged that the tissue
paper used by her after sexual assault was thrown at the place of
incident. It is submitted that this is complete improvisation to the
previous statement. The complainant realised that the CCTV
Footage is contrary to her version and hence improved her
version in the subsequent statement. The allegation that tissue
paper was thrown at place of incident is added in supplementary
statement. It is further submitted that the FIR was lodged two
days after the incident. Accused and the complainant were in
relationship. There was WhatsApp conversation between them.
She was aware that the applicant is a married person. There are
call recordings of conversation between the complainant and the
applicant. The transcript of conversation would indicate that no
such incident of sexual assault dated 22 nd December, 2020 had
occurred.
4 Learned APP submitted that the complainant has
attributed specifc overtact to the applicant alleging forceful
physical relationship on 22nd December, 2020. Supplementary
statement of the complainant was recorded on 31 st December,
2020, which mentions that the complainant had left showroom on
rpa 5/8 3 aba 134 2021.doc
her own and subsequently, the applicant had forced her to sit in
his car and after taking her to isolated place, she was subjected
to sexual assault. It is further submitted that there are several
complaints against the family of the applicant. The complainant
has submitted complaint stating that the applicant tried to make
WhatsApp call to her and creating pressure upon her for
withdrawing the complaint. It is further submitted that the
applicant has been convicted for an ofence under Section 326 of
IPC and Appeal against conviction is pending. During the course
of investigation, it was revealed that the applicant and
complainant had visited several places. There was physical
relationship between them. The applicant had fled one complaint
with Palghar police station against some person which has
resulted in grant of "B" Summary, which shows that he is fling
false complaint.
5 Learned counsel for the intervenor submitted that the
incident dated 22nd December, 2020 amounts to commission of
ofence under Section 376 of IPC. The act was committed under
coercion and without consent of the complainant. There is
suficient evidence about his involvement in the ofence. The
complainant was forced to board the vehicle and she was taken to
isolated place where she was subjected to forceful sexual assault.
rpa 6/8 3 aba 134 2021.doc
It is submitted that the transcript produced by the applicant is
not complete. Applicant is putting pressure on the complainant to
withdraw the complaint.
6 On perusal of FIR dated 24th December, 2020, it is
apparent that the applicant and the complainant were acquainted
with each other. There was physical relationship between them.
The investigation also reveals that both of them visited several
places. The relationship appears to be consensual. It is alleged
that on 22nd December, 2020, the applicant had forceful physical
relationship with her after taking her in his car to isolated place.
The applicant had preferred an application for anticipatory bail
before the Sessions Court. Applicant had contended that no such
incident dated 22nd December, 2020, had occurred. In support of
his submissions, he relied upon the CCTV Footage which shows
that the applicant left the show room on his own and travelled
outside in his vehicle and thereafter, the victim left the showroom
on her Scooty, which was parked outside his showroom. The time
shown in the video clip show that the victim was in the showroom
between 03:00 to 04:00 p.m. This is contrary to the version of the
complainant. The application was rejected by the Sessions Court
vide order dated 8th January, 2021. The prosecution pointed out
rpa 7/8 3 aba 134 2021.doc
the supplementary statement of the complainant which mentions
that both of them left separately and the complainant proceeded
on her Scooty. The applicant came in his vehicle and told her that
he wants to talk to her. Thereafter, she was made to board in the
vehicle of the applicant and she was taken to Alewadi beach and
while returning, she was taken to isolated place where the
incident had occurred. Thus, there is improvisation in the
supplementary statement, which was recorded on 31 st December,
2020. The applicant has also relied upon the details of WhatsApp
conversation between the applicant and the complainant and the
transcript of calls between them.
6 Taking into consideration the factual matrix as stated
above and the documents, on record interim protection can be
granted to the applicant with direction to co-operate with the
investigation.
7 Hence, I pass the following order:
:: O R D E R ::
(i) In the event of arrest of the applicant in connection with C.R.No.I-313 of 2020, dated 24th December, 2020, registered with Palghar Police rpa 8/8 3 aba 134 2021.doc Station, the applicant be released on bail on his executing P.R. Bond in the sum of Rs.30,000/-, with one or more sureties in the like amount;
(iii) Applicant shall report the investigating oficer on 9th 10th, 11th and 12th February, 2021, between 11:00 a.m. to 01:00 p.m., and thereafter as and when called for, till the next date of hearing;
(iii) The applicant shall not intimidate complainant and shall not enter the vicinity of the residence of the complainant;
(iv) Stand over to 22nd February, 2021.
(PRAKASH D. NAIK, J.)