Bombay High Court
Rameshsupriyan Harijan vs State Of Maharashtra And Anr on 3 January, 2024
Author: N. J. Jamadar
Bench: N. J. Jamadar
2024:BHC-AS:477
43-BA401-2023.DOC
Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO. 401 OF 2023
Ramesh Supriyan Harijan ...Applicant
Versus
The State of Maharashtra ...Respondent
Ms. Shabnam Shaikh, a/w Himanshu Rai, for the Applicant.
Mrs. Geeta Mulekar, APP for the State/Respondent.
Ms. Apoorva Gupte, appointed Advocate for Respondent
No.2.
CORAM: N. J. JAMADAR, J.
DATED: 3rd JANUARY, 2024
ORDER:-
1. Heard the learned Counsel for the applicants and the learned APP for the State.
2. The applicant, who has been arraigned in CR No.467 of 2022 registered with Sewree Police Station, Mumbai, for the offences punishable under Sections 377, 354C, 292 and 201 read with Section 34 of the Indian Penal Code, 1860 ("the Penal Code"), Sections 66E and 76A of the Information Technology Act, 2000 ("IT Act") and Section 12 of the Protection of Children from Sexual Offences Act, 2012 ("the POCSO"), has preferred this application to enlarge him on bail.
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3. The gravamen of indictment against the applicant and the co-accused including Stephen Nadar, the brother of Lawrence Nadar, the first informant is that co-accused Stephen Nadar, Satish and the applicant had surreptitiously prepared obscene videos of the females in their private movements. Lawrence had found a pendrive containing the obscene videos in his house. Those videos in the pendrive were transferred by Lawrence to his desktop computer.
4. In the quarrel which had ensued on 20th August, 2022 the co-accused had forcefully taken the mobile phone handset of Lawrence which contained those videos and destroyed evidence by reformatting the mobile phone handset.
5. During the course of investigation, it transpired that the applicant was residing in the room above the room of the victim "L", a 17 year old girl and had facilitated the taking of videos in the private moments by the co-accused. The prosecution further alleged that co-accused Satish and Sarvanand had also sexually assaulted a 28 year old male by subjecting him to intercourse against the order of nature. The investigation revealed that videos of three more female victims were taken while they were bathing and changing clothes. 2/8 ::: Uploaded on - 06/01/2024 ::: Downloaded on - 28/01/2024 12:46:43 :::
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6. The learned Counsel for the applicant submitted that the role attributed to the applicant is that of facilitating the taking of videos of the victim "L" by the co-accused. There are no allegations of the applicant having committed an offence punishable under Section 377 of the Penal Code. Even an offence punishable under Section 354C of the Penal Code cannot be attributed to the applicant. Likewise no prima facie case for an offence punishable under Section 12 of the POCSO Act can be said to have been made out against the applicant.
7. The learned APP resisted the prayer for bail. It was submitted that the applicant and co-accused had surreptitiously taken the videos of the females in their private and unguarded moments. There are statements of witnesses which indicate that the applicant had a thick bond with co- accused Satish and Satish and the rest of the accused frequently visited the room of the applicant. Therefore, though the offence under Section 377 of the Penal Code has not been attributed to the applicant, the latter does not deserve exercise of discretion.
8. Ms. Gupte, the learned Counsel appointed to espouse the cause of respondent No.2, submitted that there is a statement of victim which prima facie incriminates the applicant and the 3/8 ::: Uploaded on - 06/01/2024 ::: Downloaded on - 28/01/2024 12:46:43 ::: 43-BA401-2023.DOC victim has categorically asserted that her video was taken from the room of the applicant by pricking holes in the wooden party wall. Secondly, there are statements of witnesses which show that the applicant and co-accused Satish and Sarvanand were seen by the witnesses together frequently. Thirdly, the applicant and the co-accused had made effort to destroy the evidence by reformatting the mobile phone handset of the witness Lawrence. In this view of the matter, according to Ms. Gupte, the applicant does not deserve bail.
9. I have carefully perused the report under Section 173 of the Code of Criminal Procedure, 1973 ("the Code") and the documents annexed with it including the statements of the victims and Lawrence. The prosecution specifically alleges that the videos were prepared by co-accused Satish. The applicant had allegedly allowed the co-accused to use his room to take those videos. It is further alleged that co-accused Sarvanand and Satish destroyed the evidence by reformatting the mobile phone handset of Lawrence.
10. Evidently, the incident of sexual exploitation of a male friend of Sarvanand, by co-accused Sarvanand and Satish, had occurred prior to two years. Prima facie, the applicant has no nexus with the said incidents and, therefore, the offence under 4/8 ::: Uploaded on - 06/01/2024 ::: Downloaded on - 28/01/2024 12:46:43 ::: 43-BA401-2023.DOC Section 377 of the Penal Code cannot be attributed to the applicant.
11. Secondly, as regards the offences under Sections 66E and 67A, the role attributed to the applicant is that of facilitating the recording of videos by the co-accused from his room. The statement of victim "L" prima facie indicates that the videos were taken from the room which was in the occupation of the applicant for a while. The learned Counsel for the applicant attempted to draw home the point that the said video was allegedly recorded in the month of February, 2001 by which time the applicant had already vacated the said room. I am afraid, at this stage, the said issue cannot be delved into elaborately.
12. Nonetheless, the situation which emerges is that the offence under Section 354C, which can be attributed to the applicant, entails punishment which may extend to three years and it is bailable. Offence under Section 12 of the POCSO Act also entails punishment which may extend to three years. Likewise Section 66E of the IT Act provides punishment of three years for violation of privacy. Section 67A of the IT Act entails punishment for a term which may extend to five years and for subsequent conviction, the punishment may extend to seven years.
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13. The applicant has been in custody since 6 th September, 2022. Investigation is complete for all intent and purpose. The charge-sheet has been lodged. At this stage, the genesis of the occurrence cannot be lost sight of. Lawrence, who is the brother of co-accused Stephen, allegedly found a pendrive in his home, of which co-accused Stephen Nadar was also an occupant. The said pendrive allegedly contained the offending videos.
14. In the aforesaid view of the matter, especially having regard to the allegations that the applicant had facilitated the recording of videos, particularly of victim "L", by allowing the co- accused to use his room, which may fall within the dragnet of the offences under Section 354C of the Penal Code and Section 12 of the POCSO Act and entail punishment which may extend to three years and the applicant has already been in custody for more than one year and three months, I am inclined to exercise the discretion in favour of the applicant. The apprehension on the part of the prosecution can be taken care of by imposing stringent conditions.
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15. Hence the following order:
:ORDER:
(i) Application stands allowed. (ii) Applicant be released on bail in CR No.467 of 2022
registered with Sewree Police Station, Mumbai, on furnishing a PR Bond in the sum of Rs.30,000/- with one or two sureties in the like amount.
(iii) The applicant shall attend Sewree Police Station, Mumbai, on the first Monday of every alternate month in between 10.00 am. to 12.00 noon for the period of two years or till conclusion of the trial, whichever is earlier.
(iv) The applicant shall not contact the first informant or any of the victims or any of the witnesses or the absconding accused in any manner whatsoever or give threat or inducement or promise to the victims or first informant or any of the witnesses or persons acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or to any Police Officer.
(v) The applicant shall not enter the limits of Sewree Police Station till the conclusion of the trial, except for attending the Police Station on the specified days. 7/8 ::: Uploaded on - 06/01/2024 ::: Downloaded on - 28/01/2024 12:46:43 :::
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(vi) The applicant shall furnish the details of his permanent address and contact number to the Investigating Officer and intimate the change, if any, therein.
(vii) The applicant shall regularly attend the proceedings before the jurisdictional Court.
(viii) By way of abundant caution, it is clarified that the observations made hereinabove are confined for the purpose of determination of the entitlement for bail and they may not be construed as an expression of opinion on the guilt or otherwise of the applicant and the co-accused and the trial court shall not be influenced by any of the observations made hereinabove.
Application stands disposed.
[N. J. JAMADAR, J.] 8/8 ::: Uploaded on - 06/01/2024 ::: Downloaded on - 28/01/2024 12:46:43 :::