High Court
Facts
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO.1768 OF 2024X.Y.Z.… Petitioner… Versus …1The State of MaharashtraThrough Police Station, Jamkhed,Tq. Jamkhed, Dist. Ahmednagar. 2Bhaskar @ Bhaskarrao Rambhau More,Age 48 yrs., Occ. Business,R/o Ratndip Hospital, Nagar Road,Jamkhed, Tq. Jamkhed, Dist. Ahmednagar. 3Varsha Shankar Jadhav,Age 45 yrs., Occ. Service (PSI),R/o Police Station, Jamkhed,Tq. Jamkhed, Dist. Ahmednagar. 4Mahesh Vishnu Patil,Age 50 yrs., Occ. Service (PI),R/o Police Station, Jamkhed,Tq. Jamkhed, Dist. Ahmednagar. … Respondents...Mr. S.N. Bora, Advocate for petitionerMr. A.R. Kale, APP for respondent No.1... 2Cri.WP_1768_2024CORAM :SMT. VIBHA KANKANWADI &ROHIT W. JOSHI, JJ.RESERVED ON :23rd JANUARY, 2025PRONOUNCED ON :29th JANUARY, 2025ORDER :( PER : SMT. VIBHA KANKANWADI, J. )1Taking into consideration the contents though petitioner has notmasked her name; yet, taking into consideration her own prayer andcontentions we would like to mask her name in our order. 2Present petition has been filed by original informant forfollowing reliefs : “b.That, charge sheet filed by Jamkhed Police Station, Jamkhed inFIR No.104/2024 registered by Jamkhed Police Station, Jamkhedunder Section 354, 354(A) of Indian Penal Code which was numberas R.C.C. No.61/2024 and pending before learned Judicial MagistrateFirst Class, Jamkhed may kindly be quashed and set aside. c.That, Hon’ble Court may kindly pass writ of mandamus, writ ororder of like nature, wherein respondent No.1 may kindly be directedto conduct De Novo investigation in FIR No.104/2024 registeredunder Section 354, 354(A) of IPC by Jamkhed Police Station,Jamkhed by female Police Officer who is at least of Superintendent ofPolice rank and file fresh charge sheet as per law. 3Cri.WP_1768_2024d.That, Hon’ble Court may kindly pass writ of mandamus, writ ororder of like nature, wherein respondent no.1 may kindly be directedto conduct department enquiry against respondent Nos.3 and 4 forconducting and filing charge sheet which completely biased, withoutapplication of mind, without complying with procedure laid down bylaw and after conducting said enquiry take appropriate action as perlaw against respondent Nos.3 and 4. e.That, Hon’ble Court may kindly pass writ of mandamus, writ ororder of like nature, wherein respondent No.1 may kindly be directedto keep true identity of petitioner hidden from official records so thattrue identity shall not be revealed so that petitioner’s rights to privacyshall not be infringed.” 3Heard learned Advocate Mr. S.N. Bora for petitioner throughvideo conferencing and learned APP Mr. A.R. Kale after waiving notice forrespondent No.1. No necessity to issue notice to respondent Nos.2 to 4. 4Informant has lodged First Information Report againstrespondent No.2 with Police Station, Jamkhed, Dist. Ahmednagar, for theoffence punishable under Sections 354, 354(A) of the Indian Penal Code,1860 vide Crime No.104/2024 on 08.03.2024. The matter has beeninvestigated by respondent Nos.3 and 4 and charge sheet has been filedbefore learned Judicial Magistrate First Class, Jamkhed bearing RegularCriminal Case No.61/2024. According to petitioner, Investigating Officer hasnot invoked proper sections. Investigation has been done with bias. 4Cri.WP_1768_2024Investigating Officer ought to have registered the offence under Section375(c) of the Indian Penal Code, as respondent No.2 has committed rape onthe petitioner. If the offence would have been registered under Section 375(c) of the Indian Penal Code, the investigation ought to have been conductedfrom that angle and the charge sheet ought to have been then producedbefore Special Judge. At the time of bail respondent No.2 had taken aground that petitioner was not present in the college on the alleged day ofincident. A supplementary statement is definitely taken but the InvestigatingOfficer has not collected the material. Petitioner was having examination onthat day and, therefore, her presence could not have been disputed byrespondent No.2. It appears that the investigation has been done to supportthe defence of respondence No.2. Electronic evidence in the form of CCTV orany other device has not been tried to be collected. All these acts areinfringing her right to fair trial. The call records or the mobile location ofrespondent No.2 has also not been collected by getting CDR from theappropriate mobile company. 5In order to appreciate submissions on behalf of petitioner wewould like to take note of important aspects from her First InformationReport and we would like to try to see that her identity is not so easilydisclosed. Informant is a girl of 20 years of age and taking education in Third 5Cri.WP_1768_2024Year of B.Pharmacy from a college at Jamkhed. Respondent No.2 is afounder president of the college and he sits in Principal’s office of college,where the informant is taking education. Informant was having her paper on20.10.2022 between 2.30 to 4.00 p.m. Before the beginning of paper whenshe was standing outside the class, respondent No.2 went near her and saidsomething, which she could not understand, but then she went in the classroom. After the examination was over, the informant was along with herfriends on the college ground. When another Lecturer gave message to herthat respondent No.2 is calling her in Principal’s office, she went to Principal’soffice. Respondent No.2 was eating some fruit. He offered one wedge (QksM)of the fruit and told her that if she wants leave at the time of Diwali, then sheshould give application to him. Respondent No.2 still insisted that she shouldeat the fruit and put the seed of fruit in dustbin of anti chamber of Principal.She then ate the fruit and went in anti chamber of Principal’s office. At thattime, respondent No.2 went behind her, locked the door of anti chamber andby catching her hands he kissed her, pressed her breast and put hand fromher pant and touched the private part. Informant says that because of thesaid act it, which amounted to outraging of her modesty, she becamefrightened. Thereupon, when it was found that some girls were comingtowards the office, respondent No.2 left her and sat in the chair of Principal.Informant went from said office. Girls had come to give application and
Legal Reasoning
6Cri.WP_1768_2024along with them she went outside and told the incident to her friends.Friends had then told her that she should make complaint to her parents, butdue to fear she had not disclosed anything to her parents. She went to herhouse for Diwali vacation and after resuming the college, respondent No.2was trying to call her by giving message from others, but she never went.She says that all the students of college had then taken march againstrespondent No.2 on 05.03.2024 and, therefore, she could get courage tolodge report and accordingly, she has lodged report by coming to PoliceStation along with her friends. 6By taking into consideration the facts we are of the opinion thatingredients of Section 375(c) of the Indian Penal Code as contended bylearned Advocate for petitioner are not made out. We reproduce Section375(c) of the Indian Penal Code i.e. the relevant part only for furtherdiscussion : “375(c) -manipulates any part of the body of a woman so as tocause penetration into the vagina, urethra, anus or any part of bodyof such woman or makes her to do so with him or any other person.”Here, manipulation of any part of the body of a woman shouldbe with an intention to cause penetration into the vagina, urethra, anus orany part of body of such woman or makes her to do so with him or any other 7Cri.WP_1768_2024person would amount to rape. Here, the informant has not stated that eithershe was disrobed or respondent No.2 had disrobed himself. Though there isstatement about manipulation of the private part of informant, but thefurther act to cause the penetration has not been stated and, therefore, werepeat that the ingredients are not made out. Now, the entire investigation isover and charge sheet is filed. The contents of entire charge sheet includingthe supplementary statement of petitioner do not reflect any such ingredientsto attract Section 375(c) of the Indian Penal Code. When those ingredientsare not attracted, there is no question of conducting investigation from thatpoint of view. Further, a legal misstatement has been made though thepetitioner is well represented by an Advocate that the charge sheet has notbeen filed under the offence before Special Judge. For even the offenceunder Section 376 of the Indian Penal Code which is the punishable Sectionfor Section 375(c) of the Indian Penal Code, the charge sheet would be filedfirstly before Judicial Magistrate First Class and then the case would becommitted to the Court of Session. Petitioner is an adult and, therefore, noother Section of any special enactment is attracted in the present case, ofwhich the jurisdiction is with the Special Court. Statements of friends ofinformant have also been recorded, to whom it is alleged that it isimmediately disclosed. The facts have also stated the same act alleged tohave been done by respondent No.2 with the informant. 8Cri.WP_1768_20247As regards the defence that has been taken by respondent No.2in his bail application is concerned, respondent Nos.3 and 4 – theInvestigating Officers need not collect any material. The informant as well asher friends have specifically stated that it was the examination on that dayand, therefore, informant was present in the college. The InvestigatingOfficer is not supposed to record statement of each and every student ofcollege. If respondent No.2 wants to raise a plea of alibi, then the burden ison him to prove that he was not present. Therefore, no case is made out forde novo investigation. In fact, prayer clauses say that investigation that isalready done should be quashed and set aside and charge sheet filedthereupon and then directions be given to de novo investigation. As regardsthe electronic evidence in the form of CCTV is concerned, it can be seen thatFirst Information Report itself is belated. There is always a limited back upfacility for any CCTV and, therefore, each and every time it is not possible tocollect the CCTV footage. Further, the petitioner has not come with a casethat there is a CCTV camera installed in the cabin of Principal. Therefore,taking into consideration the fact from all angle none of the reliefs can beconsidered under the constitutional powers of this Court under Article 226 ofthe Constitution of India or under the inherent powers under Section 482 ofthe Code of Criminal Procedure. 9Cri.WP_1768_20248One more aspect that is required to be noted is that in view ofdecision of the Supreme Court in Vinubhai Haribhai Malaviya and others vs.The State of Gujarat and another [AIR 2019 SC 5233], petitioner could haveapproached learned Judicial Magistrate First Class, Jamkhed, but instead ofgoing there under Section 173(8) of the Code of Criminal Procedure thepetitioner has directly come to this Court. We are also taking note of the factthat at the time of taking cognizance of the offence the Magistrate isempowered to take cognizance of all the offences which are arising out of thefacts of the case, which might not have been mentioned by police. We arealso taking note that Sections 354 and 354(A) of the Indian Penal Code aretriable by Court of Magistrate in the State of Maharashtra. But, still, if theMagistrate is of the opinion that at the time of commencement of the inquiryor trial Magistrate finds that the case should be committed to the Court ofSessions, then Section 323 of the Code of Criminal Procedure empowers himto take such step. Therefore, no case is made out for exercise of any suchpower. Writ Petition stands dismissed. ( ROHIT W. JOSHI, J. )( SMT. VIBHA KANKANWADI, J. )agd