Hector Firdaus Kothavala vs State of Maharashtra

Sadhana S. Jadhav, J.—Not on board. Upon production taken on board. Heard the learned Counsel for the applicant and the learned APP. Perused the papers.

This is an application u/s 438 of the Code of Criminal Procedure, 1973 seeking pre-arrest bail. The applicant herein is apprehending his arrest in Crime No. 79 of 2013 registered at Byculla Police Station for offence punishable under sections 5, 8, 12, 14 and 17 of the Protection of the Children from Sexual Offences Act, 2012 and section 354 of the Indian Penal Code.

It is the case of the prosecution that on 13th April, 2013 Mrs. Diana Hector Kothawala, wife of the present applicant lodged a report at Byculla Police Station alleging therein that she was married to the present applicant. The couple is blessed with two children i.e. a son namely Ariez aged 9 years and daughter Anaina aged 6 years. She is a fashion designer by profession. She was married to the applicant in the year 2002. Initially he was working at Ooty. They came to Pune in the year 2006. Initially, he was not in any service. Hence, to support the family she had opened a tailoring shop. He did not help her in the profession. In the year 2006 she gave birth to Anaina. In the year 2008, her husband and her mother-in-law had given the said shop on rent and the couple was residing in rented premises. There used to be intermittent quarrel between the couple. Her parents had searched a job for him in Aava Marine Services Pvt. Ltd. The applicant was drawing salary of Rs. 30,000/-. In the year 2009, she joined her husband at Mumbai. He was residing with her parents. Since 2010, the applicant had allegedly restrained himself from having sexual contacts with his wife. The complainant has given several instances of negligence at the hands of the present applicant. A discordant note had been struck between the couple, She had therefore, told him that she would seek divorce from him. He pleaded before her. She had seen obscene photographs on his e-mail account. She opened the folder and found the name of Vasim Khan, Kamlesh and Mohit Dalvi.

According to her, she saw the images which prima facie revealed that her husband was a gay. She has alleged that on one day in the year 2010 when she woke up, she saw that her husband was tickling their daughter and was touching her inappropriately. She objected the same. According to her, one day Anaina had not got ready to go to school and hence, her son Ariez had also got late to reach the school and hence, he was sent back home. Therefore, Ariez was displeased with his father. Upon enquiry by the mother, the child Ariez had informed her that the applicant used to touch him inappropriately and had once bitten him on his gluteal region. The complainant has further alleged that the applicant had left the house in December. According to her, her son Ariez had disclosed to his friend that he was fed up of life. The teacher had heard about it and therefore, the child was referred to School Counselor. It is alleged that the child had disclosed to the counselor that now as his father does not stay with him, he would not be touched inappropriately. On the basis of her report, Crime No. 79 of 2013 is registered against the applicant.

The Counsel for the applicant submits that in the month of October, precisely on 20th October, 2012, the couple had been to Radisson BLU Resort & Spa, Alibaug for a short trip and stayed there till 22nd October, 2012. The advance bookings of the hotel were made on 19/9/2012. He has also placed on record the photographs of the applicant and both the children which would show that the applicant was in the swimming pool and both the children had cuddled with him. The Counsel for the complainant admits that the couple had been for a picnic in October, 2012 to Alibaug. The photograph which is taken on record is also clicked by the complainant. In the photograph, there is nothing to indicate that the children were scared of their father or that they avoided touching their father and therefore, according to the Counsel for the applicant the complainant has blown the allegations.

The learned Counsel for the applicant has further placed on record the legal notice issued to the present applicant on December 3, 2012 calling upon the applicant to move out of her parents'' house by 10th December, 2012. The notice was sent by courier. She has also sought divorce by mutual consent. On 27/11/2012 he had issued a cheque in favour of the complainant for an amount of Rs. 47,000/- towards maintenance.

The Counsel for the applicant further submits that the complainant has filed Suit No. 8 of 2013 in the Parsi Chief Matrimonial Court, Bombay seeking divorce. According to the Counsel for the applicant, the Protection of the Children from Sexual Offences Act, 2012 is given effect from 14/11/2012. According to him, the incidents alleging that the applicant had touched the children inappropriately are prior to 14/11/2012 and therefore, the applicant cannot be prosecuted for the said offence.

Counsel representing the original complainant has drawn the attention of this Court to Column No. 3-A of the FIR which shows that the duration of the occurrence of offence being June, 2010 to December, 2012 and therefore, according to him the applicant is liable to be prosecuted under the said Act.

It is true that in the FIR the complainant has not mentioned the day and date on which she noticed that the applicant had touched the children inappropriately and that she suspected the perverse act of the applicant. The Suit No. 8 of 2013 is filed on 15th March, 2013 and the FIR is lodged on 13th April, 2013. The Counsel for the complainant had drawn the attention of this Court to paragraph-33 of the Notice of Motion filed by the complainant wherein it is stated that the applicant had issued a cheque of Rs. 47,000/- in December, 2012 for the household expenses from 1/12/2012. However, the said cheque is dishonoured. The Counsel for the applicant has then drawn the attention of this Court to the paragraph-34 indicating therein that it is stated on oath that in the month of December, 2012, the defendant i.e. the present applicant would remain away from home and return home without telling anyone and would pack his bags, empty the cupboards, take away his papers, clothes, small items of kitchen use and had practically taken away all his bags and belongings by mid-December, 2012 when he finally left the house and did not return to her parent''s home.

The Counsel for the applicant submits that there is absolutely nothing on record to indicate that the applicant had caused sexual assault upon the children between 14/11/2012 and mid-December, 2012 i.e. when he left home and therefore, according to him, the applicant cannot be prosecuted under the provisions of the Protection of the Children from Sexual Offences Act, 2012. It is categorically stated that he remained away from home in the month of December, 2012. The Counsel for the applicant submits that even assuming that the applicant had committed the said offences, the provisions of the Act do not have a retrospective effect.

The Counsel for the complainant at this stage submits that the applicant had also taken images of the children for using it for pornography purpose and therefore, he would be liable for an offence punishable u/s 14 of the said Act. At this stage, there is nothing on record to indicate that the applicant had committed any offence punishable u/s 14 of the said Act.

The Counsel for the applicant submits that the punishment contemplated u/s 8 of the said Act is not less than 3 years but may extend to 5 years and fine, whereas most of the offences are punishable upto 3 years. The fact that as on today there is nothing to indicate that the applicant had indulged into the alleged acts after 14/11/2012 is sufficient to grant protection to the applicant, who happens to be the natural and biological guardian of the children.

The Counsel for the complainant has placed reliance upon the statement of the children revealing therein that they felt sexually harassed by the applicant. As a reply, the Counsel for the applicant submits that in fact, the children have been made a scapegoat to satisfy the personal vendetta of the complainant. He further submits that the complainant must have misconstrued the intimacy between the father and children or that she has influenced them against her husband to create evidence for seeking divorce and alimony.

Be that as it may, the Court is of the opinion that there is nothing on record to show that the applicant had any contact with the children after 14th November, 2012, as he had withdrawn himself from the company of the complainant and their children since mid December, 2012 and during that intervening period, he hardly stayed at home and hence, he would be entitled to grant of pre-arrest bail. Hence, the following order:

ORDER

(i) The application is allowed.

(ii) In the event of arrest, the applicant be enlarged on bail on furnishing P.R. Bond in the sum of Rs. 15,000/- and one or two sureties in the like amount.

(iii) The applicant shall not contact the children or the complainant.

(iv) The applicant shall not tamper with evidence.

(v) The applicant shall co-operate to the Investigating Officer and report to the concerned Police Station on every Sunday between 10 a.m. to 12 noon till filing of the charge-sheet.

The application is disposed of on the above terms.