Holding

Anticipatory bail cannot be granted where the offence involves rape of a minor, the victim’s consent is immaterial, and the accused have failed to comply with bail conditions, thereby the High Court's order was set aside.

Summary

The State of Maharashtra filed a criminal appeal against the Bombay High Court's order granting anticipatory bail to eight accused—including police officers, politicians and a businessman—who were alleged to have raped a girl who was a minor at the time of the offence. The girl, identified as Puja, was medically examined and found to be between 14 and 16 years old, and various birth certificates corroborated her minor status. The Supreme Court examined the four factors under Section 438 of the Code of Criminal Procedure—nature and gravity of the accusation, antecedents, potential humiliation, and risk of fleeing—and held that the seriousness of a rape of a minor, the lack of genuine consent, and the respondents' non‑compliance with bail conditions outweighed any claim for anticipatory bail. The Court also noted that the High Court erred by relying on the victim's alleged consent and by granting bail despite regular bail being denied on the same material. Consequently, the Court set aside the High Court order and allowed the appeal, directing that the respondents surrender and apply for regular bail if appropriate.

Issues considered

The appropriateness of granting anticipatory bail in a case of alleged rape of a minor under Section 376 IPC and the Prevention of Immoral Trafficking Act.
Whether the consent of a minor is legally relevant to a charge of rape.
Whether the four factors under Section 438 CrPC justify denial of anticipatory bail in the present circumstances.
The impact of the accused's failure to comply with conditions imposed by the High Court.
The significance of the victim not being named in the FIR for the grant of anticipatory bail.

Legislation cited

Code of Criminal Procedure, 1973s. 438, s. 439
Indian Penal Code, 1860s. 34, s. 342, s. 376

Subjects

anticipatory bailrape of minorconsent of minorSection 376 IPCSection 438 CrPCpolice officerspoliticiansimmoral traffickingvictim protectionbail jurisprudence

Judgment

STATE OF MAHARASHTRA AND ANR. A
v.
MOHD. SAJID HUSAIN MOHD. S. HUSAIN ETC.

OCTOBER 10, 2007
B
[S.B. SINHA AND H.S. BEDI, JJ.]

Code ofCriminal Procedure, 1973:
s.439-Grant of anticipatory bail-Determining factors- C
Discussed
s.439-Anticipatory bail-Accused persons police officers and
politicians-Charged with offence of raping minor girl-Remaining
underground-Sessions judge rejected their regular bail and
anticipatory bail-High Court allowed anticipatory bail-Correctness D
~- of-Held: Not correct as victim neededprotection-Moreover accused
persons unscrupulously not complied with the conditions imposed on
them and also not present before the court number of times-Penal
Code, 1860-s.376-Prevention of Immoral Trafficking Act-s.5.
Penal Code, 1860: E

ss.376, 342 r.w. s.34-Agc ofprosecutrix-According to medical
examination, determined to be 14 to 16 years-Held: Prosecutrix being
minor, her consent for sex is not relevant-Case rightly made out under
~376 F
The prosecution case was that the prosecutrix was staying with
her maternal aunt 'M' after her mother remarried on death of her
father. She was assaulted and abused by 'M' and as a result she
left the home and started working in the house of accused 'T' as a
maid servant. In the house of 'T' some girls used to come. After few G
days when one girl did not come, 'T' took prosecutrixto a place where
she was offered a soft drink and then against her will, was subjected
to rape. Thereafter she was regularly been sent out with various

995 H
996 SUPREME COURT REPORTS [2007] 10 S.C.R;-~ \

A persons. Respondents who are politicians, police officers and .
businessmen allegedly had been taking her to hotel, government ,__..
·guest house and even to their own apartment. On 22.04.2007, the
accused persons, named in the First Information Report took her
to a hotel to take liquor. However, the accused persons started
B behaving indecently with her. The police came and took all of them
to the police station.
She was medically examined on 22.04.2007. Her Radiological
(Bone) Assessment suggested her age to be between 14-16 years. (-
Respondents were not named in the First Information Report.
C However, prosecutrix made several statements thereafter
implicating the respondents.
When respondents came to know that they have been named
by the said girl, they absconded. They med an application for
D anticipatory bail before the Sessions Judge which was dismissed.
Thereafter, they filed application for anticipatory bail before the +
High Court which was allowed on the ground that the prosecutrix
being major and having willingly consented for sex for consideration,
primafacie, a case under s.376 IPC is not made out and thahince
E prosecutrix was stationed in the Remand Home she waltully
protected.
In appeal to this Court, State contended that the High Court
committed a serious error in passing the impugned judgment
inasmuch as from various public documents, it is evident that the i
F date of birth of the prosecutrix is 28.06.1991 and, thus, at all material
times, namely, from January 2007 to 22.04.2007, she was minor and
in that view of the matter, the purported consent given by her would
not be of much significance; that in the First Information Report,
the names of the respondents had not been taken, but in a case of
G this nature, the court should have considered the fact that she had
been arrested. by the police and as such it is just possible that she Y
was not in a position to recollect all the details.
Allowing the appeal, the Court

H
STATE v. MOHD. SAJID HUSAIN MOHD. S. HUSAIN ETC. 997

~ · HELD: 1. The four factors, which are relevant for considering A
the application for grant of anticipatory bail, are : "(i) the nature and
gravity or seriousness of accusation as apprehended by the
applicant; (ii) the antecedents of the applicant including the fact as
to whether he has, on conviction by a Court, previously undergone
imprisonment for a term in respect of any cognizable offence; (iii) B
the likely object of the accusation to humiliate or malign the
reputation of the applicant by having him so arrested; and (iv) the
possibility of the appellant, if granted anticipatory bail, fleeing from
justice." [Para 13] (1005-B, C, D]
2.1. Ifthe prosecutrixwas a minor, consent on her part will pale C
into insignificance. She had been medically examined and her
approximate age on the basis of radiological test"'.as determined to
be between 14 to 16 years. Her date of birth was recorded on
04.07.1996 by the Parbhani Municipal Council as '28.06.1991'. The
said certificate was issued on 29.05.2007, but evidently the date of D
registration of the said certificate was 04.07.1996 i.e. much before
any controversy arose. Three school leaving certificates had been
placed wherein her date of birth was shown as 28.06.1991. She had
been, as per the said certificates, studying in 9th standard. She
dropped out from the school. [Para 14] [1005-E, F, G] E
2.2. The date of issuance of the certificates had not been stated,
but evidently such certificates had been obtained by the prosecution.
It may be true that in the First Information Report as also in her
first supplementary examination, her age was recorded as 18 years, F
but she had been examined medically. The possibility of her trying
to shield her from prosecution at the time of her arrest and for that
purpose disclosing her age to be 18 years cannot be ruled out.
[Para 15] [1005-H; 1006-A, B]
2.3. A mistake in regard to her age as recorded in the First G
Information Report or the first medical document or even in her
supplementary affidavit should yield to the public documents which
have been produced by the prosecution at this stage. Even before
the Chief Judicial Magistrate, she disclosed her date of birth to be
22.06.1991. Therefore, even according to that she was below 16 H
\
998 SUPREME COURT REPORTS [2007] 10 S.C.R.

A years of age. [Para 25] (1008-B, C] ~-

3. Out of the eight respondents, five are police officers, two are
politicians and one is owner of a hotel. It is not in dispute that after
having come to learn that their names had been taken by the
prosecutrix in her supplementary statement, they had been
B absconding for a long time. The respondents had not scrupulously
complied with the conditions imposed upon them. Admittedly, at least
on four occasions, some of them were not present. -.<-
(Para 18] (1006-F, G, HJ
c 4. The High Court has in regard to the first factor envisaged
under the Maharashtra Amendment of s.438 of the Code of Criminal
Procedure proceeded on the basis that the prosecutrix was a girl of
easy virtue. This may be so but the same by itself may not be a
relevant consideration. A case of this nature should be allowed to
D be fully investigated. Once a criminal case is set in motion by lodging. +
an information in regard to the commission of the offence in terms
of s.154 Cr. PC, it may not always ~e held to be imperative that all
the accused persons must be named in the First Information Report.
It has not been denied nor disputed that the pro.secutrix does not
E bear any animosity against the respondents. There is no reason for
her to falsely implicate them. It is also not a case that she did so a~
the behest of some other person, who may be inimically disposed of
towards the respondents. The prosecution has disclosed the manner
in which she was being taken from place to place which finds some i
corroboration from the testimonies of the other witnesses and, thus,
F
at least at this stage her evidence should not be rejected outrightly.
Parameters for grant of anticipatory bail in such a serious offence,
being under ss. 376, 376(2)(g) IPC are required .o be satisfied.
[Para 22, 23 and 24] (1007-E, F, G, H; 1008-A, B]
G State of UP. v. Pappu alias Yunus and Anr., [2005] 3 SCC 594 Y
and D.K. Ganesh Babu v. P. T Manokaran and Ors., (2007] 4 SCC
434, relied on.
5.1. Immoral trafficking is now widespread. Victims, who are
lured, coerced or threatened for the purpose of bringing them to the
H
~
1 STATE v. MOHD. SAJID HUSAIN MOHD. S. HUSAIN ETC. 999

-f trade should be given all protection. At this stage, this court need A
not enter into the details in regard to the merit of the matter so as
to prejudice the case of one party or the other at the trial, but it is
now well-settled principle oflaw that while granting anticipatory bail,
the court must record the reasons therefor. [Para 21] (1007-C, D]
5.2. Immoral conduct on the part of police officers should not B
be encouraged. It is not understandable as to how the police officers
could go underground. They had been changing their residence very
frequently. Although most of them were police officers, their
whereabouts were not known. During the aforementioned period
attempts had been made even by 'M' to obtain the custody of the C
girl at whose instance, is not known. On the one hand, 'M' had been
praying for the custody of the girl and the mother of the girl had
affirmed an affidavit in relation to her date of birth. These may not
be acts of voluntariness on their part. It, therefore is a case where
no anticipatory bail should have been granted. D
[Para 26] [1008-D, E]
6. The High Court itself has refused to grant regular bail to the
accused against whom charge-sheet has been submitted. The
Session Judge also did not grant bail to some of the accused persons. E
If on the same materials, prayer for regular bail has been rejected,
there is no reason to enlarge respondents on anticipatory bail. In
the peculiar fact and circumstances of the case, the High Court ought
not to have granted anticipatory bail to the respondents.
(Paras 28 and 29] (1009-B, C, D] F
CRII\!11NAL APPELLATE JURISDICTION : Criminal Appeal Nos.
1402-1409 of 2007.
From the Common Judgment and final Order dated 27.6.2006 of
the High Court of Judicature at Bombay, Bench at Aurangabad in Crl. G
A. Nos. 1751, 1786, 1789, 1833, 1853, 1911, 1949 and 2007 of2007.
Ravindra Keshavrao Adsure, Subhash Tambe and Gautam Godara
for the Appellants.
Paramjit Singh Patwalia, Sushil Karanjkar, Vishal Joganand, K.N. H
~\
1000 SUPREME COURT REPORTS [2007] 10 S.C.R.

A Rai, Varuna Bhandari Gugnani, Rameshwar Prasad Goyal and Sohrab
Samsay for the Respondents.
The Judgment of the Court was delivered by
S.B. SINHA, J. 1. Leave granted.
B 2. This appeal is directed against a judgment and order dated
27.06.2007 passed by the High Court of Bombay, Aurangabad Bench
at Aurangabad granting' anticipatory bail to the respondents herein for -"(_".
commission of an offence punishable under Sections 376, 342 read with
· Section 34 of the Indian Penal Code (IPC) and under Section 5 of the
C Prevention of Immoral Trafficking Act.
3. Respondents herein comprise of police officers, politicians and a
businessman.
4. A First Information Report was lodged by a girl, who is said to
D be minor, showing how she was driven fo the flash trade by accused
Shamim Tabassum.
5. One Maruti Chandre had seven sisters, two of them are
Mahananda and Sunita. Mahananda was unmarried. Sunita' s first husband
E was Dilip Deshmukh, who died. She married to Sahebrao Mhaske, who
also died leaving behind prosecutrix and orie Santosh. After the death of
Sahebrao Mhaske, she again mruned to Vasantrao Hudgir. There are two
issues from the said marriage. Mahananda allegedly was taking care of
the prosecutrix as well as Santosh. Before us some documents'have been i
F placed to show that the date of birth of Puja is 28.06.1991.
Once she had left her house at Parbhani having been abused and
assaulted by Mahananda; but returned after some time. However, after
her return to Parbhani, she was again abused and assaulted by her c.;ousin.
She again came back to Aurangabad and started residing at Mukundwadi,
G where she met accused Tabassum@Baji. She was asked to work at Y
her place as a maid-servant. According to Puja, in Tabassum's house
some girls used to come. After a few days, as one girl did not come, she
was asked to go with her. They reached a Dhaba at Mhaismal in a white
coloured vehicle, where they found a person sitting. She was offered a
H,
I
STATE v. MOHD. SAJID HUSAIN MOHD. S. HUSAIN ETC.1001
[SINHA,J.]
soft drink. Having consumed it, she felt reeling in her head. She was also A
not able to walk. Allegedly, against her will, she was subjected to rape.
She was taken back to the house by accused Tabassum. She thereafter
allegedly had regularly been sent out with various persons. Sometimes,
the amount she received was to be divided ih the ratio of 50 :· 50.
Sometimes Tabassum herself used to keep the amount with her. She B
purchased clothing, jewelleries etc. from the amount she used to earn.
Respondents herein, according to the girl, had taken her to a hotel,
government guest house and even on one occasion to their own apartment.
On 22.04.2007, the accused persons, named in the First Information
Report, came to the house of Accused No. 1 for taking her to Mumbai. C
They were to travel in a bus. They, however, went to a hotel to take liquor,
before boarding the bus. However, when the accused persons started
behaving indecently with her, the police came and took all of them to the
police station.
She was medically examined on 22.04.2007. Her Radiological D
(Bone) Assessment suggested her age to be between 14-16 years.
Respondents herein were not named in the First Information Report.
However, Puja made several statements thereafter implicating the
respondents herein.
E
She also gave her statement under Section 164 of the Code of
Criminal Procedure (Cr.PC).
J Respondents, having come to know that they have been named by
the said girl, absconded. They filed an application for anticipatory bail
before the learned Sessions Judge, Aurangabad. The same was dismissed F
by an order dated 24.05.2007.
6. Respondents moved the High Court thereagainst and by reason
ofthe impugned judgment dated 27.06.2007, the said application for
anticipatory bail was allowed, inter alia, holding that the prosecutrix being G
major and having willingly consented for sex for consideration, prima facie~
a case under Section 376 IPC has not been made out.
It was :furthermore held that she being 'stationed in the Remand Home
at Aurangabad', was fully protected and, thus, the question of the
H
SUPREME COURT REPORTS (2007] 10 S.C.R.
/~\
1002

A respondents being in a position to influence her, does not arise. )--
7. The State is, thus, before us.
8. Mr. Ravindra Keshavrao Adsure, learn~d counsel appe~ng on
behalf of the State, would, inter alia, submit that the High Court committed
B a serious error in passmg the impugned judgment inasmuch as from various
public documents, it is evident that the date of birth of the prosecutrix is
28.06.1991 and, thus, at all material times, namely, from January 2007
to 22.04.2007, she was minor and in that view of the matter, the purported A., .
consent given by her would not be of much significance.
c The learned counsel would contend that it is true that in the First
Information Report, the names of the respondents had not been taken,
but in a case of this nature, the court should have considered the fact that
she had been arrested by the police and as such it is just possible that
she was not in a position to recollect all the details.
D
In any event, the First Information Report being not encyclopedic,
any evidence which has been collected by the prosecution during the
course of investigation should have been taken into consideration having
regard to the nature and gravity of the offence.
E The learned counsel would submit that the prosecutrix in her
statement recorded by the police, had made categorical allegations against
Accused Nos. 7, 9, 10, 11, 12, 13, 14 and 15. She made a.similar
statement before the learned Magistrate, which was recorded under
Section 164 Cr. PC on 28.04.2007. t
F
It was pointed out that all the accused persons had been absconding
from 24.05.2007 to 11.06.2007. The learned counsel would submit that
as an investigation had been conducted by the CID under the supervision
of a Superintendent of Police, it cannot be said that any attempt had been
G made to falsely implicate the respondents. It was pointed out that a ·y
chargesheet had been submitted against the six accused persons on
18.07.2007 and they have been refused bail by the same learned Judge.
Keeping in view the fact that she was taken to a hqtel, guest houses and
apartment, custodial interrogation of the accused is imperative.
H
-STATEv. MOHD. SAJIDHUSAINMOHD. S. HUSAINETC.1003
[SINHA, J.]
9. Mr. Paramjit Singh Patwalia, learned Senior Counsel appearing A
on behalf of the respondents, on the other hand, pointed out that in the
First Information Report, in her medical examination as also in her
supplementary statement, the prosecutrix stated her age to be 18 years.
Even her aunt stated her age to be 18 years. It was in the aforementioned
situation, it was urged, no reliance can be placed on the purported birth B
certificate, which was issued on 29.05.2007 by the Parbhani Municipal
Council and the School Leave Certificates by different schools as also
the medical certificate, stating her age to be between 14 to 16 years.
The learned counsel would submit that prima facie the girl was
above 16 years and she being a consenting party and having been getting C
consideration, no case under Section 376 IPC having been made out and,
thus, this Court should not interfere with the impugned judgment.
It was contended that pursuant to the interim order passed by the
J. High Court, the respondent have fully been cooperating with the D
Investigating Officer and except for four days, they have scrupulously
complied with the conditions imposed by interim order passed by the High
Court as also the conditions imposed upon them by the High Court in
the impugned judgment.
It was furthermore pointed out that during the aforementioned period, E
they subjected themselves to medical examination and took part in the
test identification parade, but no recovery was made from them. It was
J pointed out that chargesheet had been submitted against six persons who
are in custody and in that view of the matter, it is not a case where custodial
interrogation would be necessary. F
The learned counsel would contend that although there exists a
distinction in regard to the exercise ofjurisdiction of this Court on an appeal
from an order granting or refusing the prayer for grant of anticipatory bail
and one of cancellation of bail; it is trite that this Court ordinarily would G
not interfere. Strong reliance, in this behalf, has been placed on State of
UP. through CBI V. Amarmani Tripathi etc., [2005] 8 sec 21 and
Jagdish and Ors. V. Harendrajit Singh, [1985] 4 sec 508]
10. When the matter came up before us on 27.07.2007, a report
H
1004 SUPREME COURT REPORTS [2007] 10 S.C.R.
./\
A was called for from the Superintendent of Police, Crime Investigation )--
Department, Aurangabad. The said authority has sent a report to this Court
wherein it has, inter alia, been pointed out, that the respondents-accused
persons had been absconding for a long time and they during the course
of interrogation have been giving evasive answers.
B 11. It was furthermore stated that from the residence of Accused
No. 3, thirteen CDs of blue films and books instigating sex had been
seized. It was also submitted that recovery of vehicles used by the --< ·
respondents from time to time for commission of the offence are yet to
be seized and if they are released on bail, they would tamper with
C evidence.
12. Section 438 of Cr.PC has been-amended by the State of
Maharashtra. by Act No. 24 of 1993, which reads as under :
"438 Direction far grant of bail to person apprehending arrest.-
D
(.1) When any person has reason to believe that he may be arrested
on an a~cusat~on of having committed a non-bailable offence, he
may apply to the High Court or the Court of Session for a direction
under this section that in the event of such arrest, he shall be
released on bail; and that Court may, after taking into consideration,
E
inter alia, the following factors:-
(i) the nature and gravity or seriousness of the accusation as
apprehended by the applicant; ~~

F (ii) the antecedents of the applicant including the fact as to whether
he has, on conviction by a Court previously undergone
imprisonment for a term in respect of any cognizable offence;
(iii) the likely object of the accusation to humiliate or malign the
reputation of the applicant by having him so arrested, and
G
(iv) the possibility ofthe applicant, if granted anticipatory bail, fleeing
from justice,
either reject the application forthwith or issue an interim order for
the grant of anticipatory bail:
H
f STATE v. MOHD. SAJID HUSAIN MOHD. S. HUSAIN ETC.1005
[SINHA,J.]
Provided that where the High Court or, as the case may be, the A
Court of Session, has not passed any interim order under this sub-
section or has rejected the application for grant of anticipatory bail,
it shall be open to an officer in charge of a police station to arrest,
without warrant the applicant on the basis of the accusation
apprehended in such application." B
13. The four factors, which are relevant for considering the
application for grant of anticipatory bail, are :
"(i) the nature and gravity or seriousness of accusation as
apprehended by the applicant; c
(ii) the antecedents of the applicant including the fact as to whether
he has, on conviction by a Court, previously undergone
imprisonment for a term in respect of any cognizable offence;
(rii) the likely object of the accusation to humiliate or malign the D
reputation of the applicant by having him so arrested; and
(iv) the possibility of the appellant, if granted anticipatory bail,
fleeing from justice."
14. It is not in dispute that ifthe prosecutrix was a minor, consent
on her part will pale into insignificance. She had been medically examined E
and her approximate age on the basis of radiological test was determined
to be between 14 to 16 years. Her date of birth was recorded on
04.07.1996 by the Parbhani Municipal Council, Parbhani. as
. .)- '28.06.1991 '. The name of her father was also mentioned therein as
'Sahebrao Mhaske'. The said certificate was issued on 29.05.2007, but F
evidently the date ofregistration of the said certificate was 04.07.1996
i.e. much before any controversy arose. Three school leaving certificates
had been placed before us which have been issued by : (i) Sarjudevi
Bhikulal Bharuka Arya Kanya Vidyalaya, Hingoli; (ii) Bal Vidya Mandir,
High School Parbhani; and (iii) Model English Educational Societies, G
)' Sharda Vidya Mandir, Parbhani, wherein her date of birth was shown as
28.06.1991. She had been, as per the said certificates, studying in 9th
standard. She dropped out from the school.
15. It may be true that the date of issuance of the certificates had H
1006 SUPREME COURT REPORTS (2007] 10 S.C.R.'~
A not been stated, but evidently such certificates had been obtained by the
prosecution. It may be true that in the First Information Report as also in
ht::r first supplementary examination, her age was recorded as 18 years,
but she had been examined medically. The possibility ofher trying to shield
her from prosecution at the time of her arrest and for that purpose
B disclosing her age to be 18 years cannot be ruled out.
16. So far as the fact that the respondents have not been named in
the First Information Report is concerned, suffice it to say that the First
Information Report may be encyclopedic.
c 17. In Vinod G. Asrani v. State ofMaharashtra, (2007) 3 SCALE
241 ], this Court stated :
"As pointed out by Mr. Ahmed, this Court in the case of Kari
Choudhary v. Sita Devi and Ors., had while considering a similar
question observed that the ultimate object of every investigation is
D to find out whether the offences allege.cl to have been committed
and, if so, who had committed it. The scheme of the Code of
Criminal Procedure makes it clear that once the information of the
commission of an offence is received under Section 154 of the
Gode of Criminal' Procedure, the investigating authorities take up
E the investigation and· file charge sheet against whoever is found
during tl1e investigation to have been involved in the commission
of such offence. There is no hard and fast rule that the First
information Report' must always _contain the names of all persons
who were involved in the commission of an offence. Very often
F the names of the culprits are not even mentioned in the F.LR. and
they surface only at the stage of the investigation ... "
18. Out of the eight respondents, five are police officers, two are
politicians and one is owner of a hotel. It is not in dispute that after having
G come to learn that their names had been taken by the prosecutrix in her
supplementary statement, they had been absconding for a long time. It is '(
not necessary for us to record their respective period of abscondance.
We may furthermore notice that the respondents had not scrupulously
complied with the conditions imposed upon them. Admittedly, at least on
four occasions, some of them were not present.
H
STATE v. MOHD. SAJID HUSAIN MOHD. S. HUSAINETC.1007
[SINHA,J.]
19. We need not go into the question as to whether they had been A
cooperating with the Investigating Officer or not. We may, however, poll1t
out that before us a copy of the affidavit dated 10.05.2007 affirmed by
Sunita Sahebrao Mhaske was placed, wherein she alleged that Puja wa5
born on 30.12.1988. On that basis the Gram Panchayat, Dhanki had also
issued a certificate showing the same to be her date of birth. We have an B
uncanny feeling that evidently the evidences are being collected by
somebody who intends to save the accused.
)
20. There cannot be any direct proof that the respondents have been
tempering with evidence, but that question will have to be considered by
the appropriate authority at the appropriate stage. C
21. Immoral trafficking is now widespread. Victims, who are lured,
coerced or threatened for the purpose of bringing them to the trade should
be given all protection. We at this stage although cannot enter into the
details in regard to the merit of the matter so as to prejudice the case of D
one party or the other at the trial, but it is now well-settled principle of
law that while granting anticipatory bail, the court must record the reasons
therefor.
22. The High Court has in regard to the first factor envisaged under
the Maharashtra Amendment of Section 438 of the Code of Criminal E
Procedure proceeded on the basis that the prosecutrix was a girl of easy
virtue. This may be so but the same by itself may not be a relevant
consideration. [See State of UP. v. Pappu alias Yunus and Anr., [2005]
3 sec 594].
F
23. A case of this nature should be allowed to be fully investigated.
Once a criminal case is set in motion by lodging an information in regard
to the commission of the offence in terms of Section 154 Cr. PC, it may
not always be held to be imperative that all the accused persons must be
named in the First Information Report. It has not been denied nor disputed G
that the prosecutrix does not bear any animosity against the respondents.
There is no reason for her to falsely implicate them. It is also not a case
that she did so at the behest of some other person, who may be inimically
disposed of towards the respondents. The prosecution has disclosed the
manner in which she was being taken from place to place which finds H
1008 SUPREME COURT REPORTS [2007] 10 S.C.R.

A some corroboration from the testimonies of the other witnesses and, thus,
we can safely arrive at a conclusion .that at least at this stage her evidence
should not be rejected outrightly.
24. Parameters for grant of anticipatory bail in such a serious offence,
being under Section 376, 376(2)(g) IPC, in our opinion, are required to
B be satisfied. [See e.g. D.K Ganesh Babu v.·P.T. Manokaran and Ors.,
(20011 4 sec 434].
25. A mistake in regard .to her age as recorded in the First
Information Report or the first medical document or. even in her
C supplementary affidavit should yield to the public documents which have
been produced by the prosecution at this stage. Even before the learned
Chief Judicial Magistrate, she disclosed her date of birth to be 22.06.1991.
Therefore, even according to that she was below 16 years of age.
.. '

26. Immoral conduct on the part of police officers·should not be
D encouraged. We fail to understand as to how the police officers could go
underground. They had been changing their residence very frequently.
Although most of them were police officers, their whereabouts were not
known. During the aforementioned period attempts had been made even
by Mahananda to obtain the custody of the girl at whose instance, we do
E not know. On the one hand, Mahananda had been praying for the custody
of the girl and Sunita, the mother of the girl, as noticed hereinbefore, had
affirmed an affidavit in 'relation to her date of birth. These may not be
acts of voluntariness on their part. It, therefore, in our opinion, is a case
where no anticipatory bail should have been granted.
F
27. Reliance has been placed by Mr. Patwalia on Amarmani
Tripathi (supra). This Court therein opined that in an application for
cancellation of bail, conduct subsequent to release on bail and the
supervening circumstances alone are relevant. But the court while
considering an appeal against grant of anticipatory bail would keep in mind
G the parameters laid down therefor. The matter, however, may be different
for deciding an appeal from an order granting bail, where the accused
has been at large for a considerable time, in which event, the post-bail
conduct and other supervening circumstances will also have to be taken
note of.
H
~-STATE v. MOHD. SAJID HUSAIN MOHD. S. HUSAIN ETC.1009
[SINHA,J.]
This Court inAmarmani Tripathi (supra) aforementioned case upon A
.--(
considering even the subsequent events came to the conclusion that the
accused therein had tried to interfere with the course of the investigation,
tamper with the witnesses, fabricate evidence, intimidate or create
obstacles in the path of investigation officers and derail the case. In that
case, the appeal granting bail was set aside. B
28. We may also notice that the High Court itself has refused to grant
regular bail to the accused against whom charge-sheet has been submitted.
>- The learned Session Judge also did not grant bail to some of the accused
persons. If on the same materials, prayer for regular baii has been rejected,
we fail to see any reason as to why and on what basis the respondents C
could be enlarged on anticipatory bail.
29. In the peculiar fact and circumstances of the case, we are of
the opinion that the High Court ought not to have granted anticipatory
bail to the respondents. The impugned judgment, therefore, cannot be D
sustained which is set aside accordingly. The appeal is allowed.
30. The respondents may surrender before the Chief Judicial
Magistrate and move an application for regular bail, which may be
considered on its own merit withoutbeing influenced, in any way, by the
judgment of this Court. E
D.G. Appeal allowed.