ABA
1870/2022 ::1:: ORDER
MHCC050062352022
IN THE COURT OF SESSIONS, AT DINDOSHI
(BORIVALI DIVISION), GOREGAON, MUMBAI
ANTICIPATORY BAIL APPLICATION NO. 1870 OF 2022
(C. R. No. 883/2022)
(CNR NO.MHCC05002022)
Rakhi Anant Sawant
Age – 44 years, Occ : Artist,
An Adult of Indian Inhabitant,
Residing at : B2/501, Seranity Complex,
New Link Road, Oshiwara, Andheri (West),
Mumbai – 400 058. ...Applicant/Accused
V/s.
The State of Maharashtra
(Through Amboli Police Station, Mumbai) ....Respondent
Ld. Advocate Mr. Sushil Mishra for the Applicant/Accused.
Ld. APP Mr. Sachin Jadhav for The State.
Ld. Advocate Shareen for the Intervener.
CORAM: H.H.THE ADDITIONAL SESSIONS JUDGE
SHRI. SHRIKANT Y. BHOSALE
(C.R.NO.9)
DATE : 18TH JANUARY, 2023
O R D E R
In anticipation of arrest in C. R. No.883/2022 registered
with Amboli Police Station for the offence punishable under sections
354(A), 500, 504, 509 r/w 34 of IPC and Section 67(A) of Information
and Technology Act, the applicant has made this application for pre
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arrest bail.
2. Prosecution vide say Exh. 5 resisted the application.
3. Heard Ld. Advocate Mr. for the applicant and Ld. APP Mr.
for The State.
4. The sum and substance of the case of the prosecution is
that the informant and the applicant/accused are models and there is
rivalry between them. In past also there were several complaints filed
against each other. On this background, the informant alleges that on
31.10.2022, the applicant before the media showed some videos of the
informant and made defamatory statement. According to the informant
the video of the informant displayed before media were sexually
explicit.
5. Ld. Adv for the applicant vehemently submit that except
section 67 of I.T. Act, all other sections are bailable. According to him
section 67(A) is applicable only when the sexually explicit material is
published or transmitted or caused to be published or transmitted in the
electronic form. According to him there is no allegation that the
applicant has either published or transmitted the said material.
According to him the videos allegedly displayed by the applicant are
available on net, therefore, the custody of the applicant is not at all
necessary for the purpose of investigation. According to him the
applicant is ready to handover the mobile phone to the police. He
further pointed out regarding the incidence the applicant has also filed
counter case C. R. No. 1518/2022 for the offence punishable under
sections 500, 504, 506 and 509 of The IPC to Versova police station.
Considering these aspects he submits that this is a fit case where
anticipatory bail can be granted. Ld. Adv for the applicant relied on the
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decision between Pramod Anand Dhumal V/s. State of Maharashtra,
in Anticipatory Bail Application No. 1114 of 2020, decided on
07.01.2021 by The Hon'ble Bombay High Court, specially para 9 and
10.
6. As against this Ld. APP submits that the videos displayed by
the applicant before the media needs to be verified and that can be
done only if those videos are seen and that is possible only by verifying
the device which was used by the applicant at relevant time. According
to prosecution the notice under section 41(A) of Cr.P.C. was served on
the applicant on 10.11.2022, but there was no positive response from
the applicant. Though she appeared before investigation officer on
14.11.2022, she did not handover her mobile phone. Thus, unless the
applicant has been arrested, proper investigation is not possible and
hence, the bail application needs to be rejected.
7. Ld. Adv Shareen for the intervenor submits that the videos
which were shown before the media and the media transmitted the said
where sexually explicit material. The investigation officer has to
ascertain that which videos were displayed and how many such videos
are available. At the same time the device which was used by the
applicant to display the videos is also an important piece of evidence. In
such circumstances, not only the recovery of the device but custodial
interrogation is absolutely necessary and therefore, it is just and proper
to reject the application.
8. First I would like to mention that except offence under
section 67(A) of Information and Technology Act, other offences are
bailable. To attract section 67(A) of I.T. Act, it is necessary that there
should be an allegation that sexually explicit material is either
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published or transmitted or caused to be published or transmitted in
electronic form. The informant has alleged that the applicant on
31.10.2022 played videos on her mobile phone containing obscene
picture and videos of the informant. This allegation of showing porn
video before the media prima facie attract section 67(A) of Information
and Technology Act. Thus, prima facie material is available against the
applicant.
9. In case between Pramod Anand Dhumal V/s. The State of
Maharashtra, in Anticipatory Bail Application No. 1114 of 2020,
decided on 7th January, 2021, by The Hon'ble Bombay High Court,
considering the facts of that case held that Section 67 of The
Information and Technology Act is applicable and not Section 67(A) of
the I.T. Act. Further, the anticipatory bail was granted while
considering the fact that the dispute cell phone was handed over to the
investigating officer and therefore, custodial interrogation held not
necessary. However, in the present case inspite of giving opportunity to
the applicant, cell phone was not handed over nor the applicant co
operated the investigation agencies, therefore, in my view cited decision
is not helpful to the applicant.
10. In light of the above, it is seen that the mobile device which
was allegedly used to display the porn videos and obscene photos of the
informant, is an important piece of evidence and that needs to be
recovered. It is further seen that investigating officer has issued notice
to the applicant under section 41(A) of Cr.P.C. However, she did not
produce the mobile phone though she appeared before the investigation
officer. It is further seen that according to prosecution thereafter also
the applicant neither produced the mobile nor appeared before the
investigating officer. Now Ld. Adv for the applicant is submitting that
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the applicant was thereafter busy in one T.V. show, hence, could not
appear before the investigation officer. In light of the serious
allegation, the above explanation of the applicant do not appear to be
justifiable. It is also argument of the applicant that she is ready to
produce her mobile device before the investigating officer. However,
considering the fact that when the opportunity was with the applicant,
she failed to produce her mobile phone before the investigation officer.
In such circumstances, no question arises to believe on the argument of
the applicant that she will produce the mobile device before
investigation officer.
11. From the above discussion it is seen that prima facie
material is available against the applicant and she is not cooperating
the investigation agency when the opportunity was given to her. In
such circumstances, the Court is of the view that no case for
anticipatory bail is made out. Hence, the order.
ORDER
Anticipatory Bail Application No. 1870 of 2022 stands rejected and
disposed off.
(Dictated and pronounced in presence of Ld. Advocate for
Applicant & Ld. APP)
Digitally signed by
Shrikant
Yashwantrao
Bhosale
Date: 2023.01.20
10:54:15 +0530
Date: 18.01.2023 (Shrikant Y. Bhosale)
The Addl. Sessions Judge
City Civil & Sessions Court,
Borivali Division, Dindoshi.
ABA 1870/2022 ::6:: ORDER
Dictated on : 18.01.2023
Transcribed on : 18.01.2023
Checked & corrected on : 19.01.2023
Signed on : 19.01.2023
Sent to Dept. on :
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
Date : 20/01/2023 Ms. Tejal C. Rane
Time : 10.53 A.M. (Stenographer GradeI)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court room no.) HHJ S. Y. BHOSALE
(Court Room No.9)
Date of Pronouncement of 18.01.2023
JUDGMENT/ORDER
JUDGMENT/ORDER signed by P.O. on 19.01.2023
JUDGMENT/ORDER uploaded on 20.01.2023
