Bombay High Court Grants Bail To POCSO Accused After Finding That Complainant, Advocate Submitted False & Impersonated Affidavit Before Notary

The Bombay High Court recently granted bail to a man accused of sexually assaulting his daughter after finding that the complainant (wife of the accused) and her advocate, filed a false affidavit in the case.

Justice Madhav J Jamadar observed –

“This is a very serious case. Prima facie, the conduct of the Respondent No.2 (complainant) and the conduct of the learned Advocate Rohit Kumar amounts to interference in the administration of justice as false and fabricated affidavit is filed to oppose the grant of bail to the Applicant.”

The applicant's bail had earlier been cancelled by the sessions court based on certain WhatsApp messages, some of which contained indecent language and threats to Advocate Rohit Kumar.

Considering that the complainant presented a false affidavit in the HC while opposing the bail application, the court concluded that prima facie, there is every possibility that material was created, or the applicant was manipulated, in such a manner to prompt him to send those messages causing the cancellation of his bail.

The alleged crime occurred on June 5, 2020, and the FIR was registered on November 9, 2022. The charges include sections 354, 323, 506 of the IPC and sections 3, 4, 7, 9(g), and 10 of the Protection of Children from Sexual Offences (POCSO) Act, 2012. The applicant/accused was arrested within 25 minutes of registration of the FIR. A charge sheet was filed on January 5, 2023.

The Additional Sessions Judge, Pune, granted bail to the applicant on December 9, 2022, observing an unexplained delay of around thirty months in lodging the FIR. However, the bail was cancelled on July 5, 2023, based on allegations of pressurizing and threatening the complainant and following the victim, who is the daughter of the accused and the complainant.

A subsequent bail application asserting that the complainant and her advocate created false cases or records against him was rejected on October 30, 2023, leading to the current proceedings before the high court.

On June 22, 2023, the mother of the complainant filed a complaint against one Rohit Ramchandra Kumar alleging that he physically assaulted her, abused her, and threatened to kill her. Despite a different middle name, the address and mobile number in the complaint matched those of Advocate Rohit Kumar, who represented the complainant in the sessions court as well as in the HC. This complaint is unrelated to the alleged offence against the applicant.

Advocate Vaibhav Kulkarni for the applicant told Live Law that they brought this complaint on record in the bail application to show the court that Advocate Rohit Kumar was interfering with the family of the applicant and the complainant.

In response to this averment, Advocate Rohit Kumar submitted the wife's mother's Affidavit in the HC clarifying that she had no complaints against Kumar. Moreover, the person mentioned in her complaint was not Kumar, the affidavit stated. The affidavit claimed that another person had threatened her, identifying himself as Advocate Rohit Ramchandra Kumar, and misled her into filing a complaint against Advocate Rohit Kumar, in order to destroy their reputation.

The court found it shocking that the affidavit was not affirmed by the complainant's mother but by the complainant herself, impersonating her mother. Further, Advocate Rohit Kumar falsely identified the complainant as her mother before the Notary. The complainant present in court admitted in writing to putting her signature instead of her mother's signature in the affidavit.

The court pointed out observations of the Additional Sessions Judge while granting bail earlier that the FIR had been registered and the Applicant immediately apprehended by misusing the official position of the complainant, who is a Police Constable.

In light of the fraudulent actions of the complainant, the court granted bail to the accused until further orders.

Amicus Curiae Kuldeep Nikam, citing Rules 13 and 15 of the BCI Rules, submitted that it is inappropriate for Advocate Rohit Kumar to represent the complainant pointing out that has also filed complaints against the applicant and is a potential witness in the case.

The court directed the complainant, Advocate Rohit Kumar, and the State of Maharashtra to file their reply affidavits by January 30, 2024. The case was adjourned to February 2, 2024.

Advocates Sohan Gunjal and Vaibhav Kulkarni represented the Applicant.

APP PH Gaikwad represented the State.

Advocate Rohit Kumar represented the Complainant.

Case no. – Criminal Bail Application No. 4032 of 2023