Bombay hc urvashi order

1. 1 ABA No.221­2020
IN THE CITY SESSIONS COURT AT MUMBAI.
ANTICIPATORY BAIL APPLICATION NO.221 OF 2020.
(CNR No.MHCC02­002006­2020)
Urvashi Chudawala, }
Aged : 22 years, Occ.: Student, }
R/o.003, 13­B, Shreeji Splender, }
Bramhand, Near Dharamchapadas }
Bus Depot, Azad nagar, Thane(W) }
Sandozbaug, Maharashtra­400 607 }...APPLICANT.
Versus
State of Maharashtra through }
PS Azad Maidan, Mumbai. }
(Crime No.28/2020). }...PROSECUTION.
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Shri.Vijay Hiremath, learned advocate for applicant.
Shri.Desai, learned CPP for the prosecution.
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CORAM : HIS HONOUR JUDGE SHRI.P.P.RAJVAIDYA (C.R.NO.16)
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O R A L
O R D E R
(Delivered on 05/02/2020)
1. Apprehending her arrest in Crime No.28/2020 registered at
PS Azad Maidan for offences under Sections 124­A, 153­B and 505 r/w
Section 34 of IPC, applicant has filed this application under Section 438
of Cr.P.C. for seeking anticipatory bail.
2. Read the application & say filed by the investigating officer
through learned CPP. Heard learned Shri.Hiremath, advocate for the
applicant & learned Shri.Desai, the Chief Public Prosecutor for the
prosecution. Perused the investigation papers.
3. Allegations in FIR, in brief, are that informant API Mohite
was on Bandobast duty at Azad Maidan on 01/02/2020 from 1500
hours when about 3,000 persons of “Queer Azadi” had assembled there
and those persons were uttering various slogans. Informant learnt from
the published news items on 02/02/2020 that present applicant though

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was not concerned with the March of “Queer Azadi”, she was uttering
slogan with the help of 50­60 others against the Nation in the said
March by using words as '''kjfty rsjs liuksdks] ge eafty rd igqpk;saxs''. Said
Sharjeel has given speeches to cut/divide the Nation by separating State
of Asam (by referring Asam as “Chicken's Neck”) from India in respect
of which, Delhi Police has arrested said Sharjeel by registering offence
of Sedition against him. Video clippings of speeches given against the
Nation by said Sharjeel downloaded from You Tube are annexed with
FIR. One Sumeet Samos has posted on Facebook as “Release Sharjeel
unconstitutionally” which post has been shared further by the applicant
on her Facebook Account. Applicant has thus made statements as above
against the Nation & public interest.
4. On the basis of the report lodged by API Mohite, crime
No.28/2020 for offences under Sections 124­A, 153­B, 505 r/w 34 of
IPC came to be registered against the applicant and 50­60 others at PS
Azad Maidam, Mumbai.
5. Learned advocate for the applicant argued that applicant is
a student of Final Year and the Final Year examination of the applicant
will be held in the month of either March or April. He argued that the
allegations in FIR indicate that applicant has uttered only one slogan
and that too, for few Seconds only and said slogan in itself does not
indicate that applicant has committed any act of Sedition as is alleged
in FIR. He argued that applicant is not concerned with the overt acts
allegedly committed by the person by name Sharjeel in some other
State and expressing opinion to release said Sharjeel by the applicant in
itself is not sufficient to say that applicant has acted against the Nation.
He argued that it is not clarified in the reply whether the investigating
officer has complied with the directions given by Hon'ble High Court for

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registering the crimes of like nature, before registration the crime
against applicant & others for offences under Sections 124­A and 505 of
IPC. He argued that entire family of the applicant will come on road
and applicant's academic career will ruin if the applicant is not
protected from arrest in the present false crime. He argued that
applicant herself is trans­person, allegations against her do not indicate
that she has in any way attempted to bring into hatred against the
Government as is alleged in FIR & the act of applicant was in
consonance with the fundamental rights conferred on her by the
Constitution of India due to which, the slogan uttered by the applicant
cannot be considered to be so serious to cause any harm to the
Government or to the public interest. He argued that applicant does not
have criminal past hence, in view of the guidelines issued by Hon'ble
Supreme Court in a case of Siddharam Mehtre..., applicant may be
enlarged on anticipatory bail by imposing any suitable conditions.
6. In support of his argument, learned advocate for the
applicant has placed reliance on the following authorities.
i)Siddharam Mehtre Vs. State of Maharashtra
reported in MANU/SC/1021/2010,
ii)Kedar Nath Singh Vs. State of Bihar
reported in MANU/SC/0074/1962,
iii)Common Cause Vs. Union of India
reported in (2016) 15 Supreme Court Cases 269.
I have gone through those authorities.
7. As against this, learned CPP vehemently opposed the
application by submitting that applicant uttered slogans with the help of
other 50­60 persons for giving support to one Sharjeel who has been
arrested by Delhi Police in connection with the similar type of offence.
He argued that the video on You tube of said Sharjeel clearly indicates

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that he is dreaming to cut the State of Assam from India by referring
Asam as Chicken's Neck. He argued that applicant was uttering slogans
in support of said Sharjeel by making use of her mobile handset and it is
necessary to seize said mobile handset for proper investigation of the
crime. He argued that the slogans uttered by applicant for expressing
support to said Sharjeel are sufficient to attract Section 124­A, 153­B
and 505 of Indian Penal Code. He argued that, before registration of
FIR, police had called the applicant to the police station for making
enquiry by giving calls on her two mobile numbers and also on the
mobile number of her mother but applicant though had initially
attended mobile call, she afterwards switched of her mobile phones and
despite giving assurance by her mother to keep the applicant present in
the police station, applicant has not attended the police station hence,
FIR is registered on the basis of the material available with the police.
He argued that allegations in FIR about the dream of Sharjeel to
divide/cut State of Assam from India are supported by the video
clippings. He argued that applicant has shared photograph of said
Sharjeel on her Facebook Account & on registration of FIR, applicant
has deleted her Facebook Account with an intention to destroy the
evidence. He argued that many others are involved in commission of
this serious crime, investigation of the crime is still at primary stage and
considering the gravity of offence, applicant is not entitled for
anticipatory bail. He argued that custody of the applicant is essential
with the investigating officer for interrogation purposes & for recovery
of the mobile handset so also, for recovery of the data saved in the
mobile handset due to which, application is liable to be rejected.
8. In support of his argument, learned CPP has placed reliance
on the law laid down by Hon'ble Supreme Court in a case of

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P.Chidambaram Vs. Directorate of Enforcement reported in 2019(3)
Crimes 410 (SC). I have gone through said authority.
9. In his reply argument, learned advocate for the applicant
submitted that if the act complained of in the present FIR is considered
to be an offence as is sought to be urged by the informant & the
investigating officer then, it will be very difficult for the citizens to
survive in India. He further argued that applicant is ready to handover
her mobile handset to the investigating officer due to which, custodial
interrogation with the applicant is not at all essential hence, the
application deserves to be allowed.
10. In Common Cause Vs. Union of India... cited above,
Hon'ble Supreme Court is pleased to direct that while dealing with the
offences under Section 124­A of Indian Penal Code, the authorities shall
be guided by the principles laid down by the Constitution Bench in
Kedar Nath Singh V. State of Bihar.
11. In a case of Kedar Nath Singh V. State of Bihar cited
above, while considering the constitutionality of Section 124­A of
Indian Penal Code, Hon'ble Supreme Court has laid down as;
“...It is well settled that if certain provisions of law construed
in one way would make them consistent with the Constitution, and
another interpretation would render them unconstitutional, the
Court would lean in favour of the former construction. The
provisions of the sections read as a whole, along with the
explanations, make it reasonably clear that the sections aim at
rendering penal only such activities as would be intended, or have a
tendency, to create disorder or disturbance of public peace by resort
to violence. As already pointed out, the explanations appended to
the main body of the section make it clear that criticism of public
measures or comment on Government action, however strongly
worded, would be within the reasonable limits and would be
consistent with the fundamental right of freedom of speech and
expression. It is only when the words, written or spoken, etc. which

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have the pernicious tendency or intention of creating public disorder
or disturbance of law and order that the law steps in to prevent such
activities in the interest of public order. So construed, the section, in
our opinion, strikes the correct balance between individual
fundamental rights and the interest of public order...”
12. While considering the constitutionality of Section 505 of
Indian Penal Code, Hon'ble Supreme Court is pleased to hold that the
provisions of said Section would not exceed the bounds of reasonable
restrictions on the right of freedom of speech & expression.
13. In a case of Siddharam Mehtre Vs. State of Maharashtra
cited above on which reliance is placed by learned advocate for
applicant, Hon'ble Apex Court has laid down the factors and parameters
which the court is required to take into consideration while dealing
with the anticipatory bail. Those factors and parameters are as;
i) The nature and gravity of the accusation and the exact role
of the accused must be properly comprehended before arrest is
made;
ii) The antecedents of the applicant including the fact as to
whether the accused has previously undergone imprisonment on
conviction by a Court in respect of any cognizable offence;
iii) The possibility of the applicant to flee from justice;
iv) The possibility of the accused's likelihood to repeat similar
or the other offences.
v) Where the accusation have been made only with the object
of injuring or humiliating the applicant by arresting him or her.
vi) Impact of grant of anticipatory bail particularly in cases
of large magnitude affecting a very large number of people.
vii) The courts must evaluate the entire available material
against the accused very carefully. The court must also clearly
comprehend the exact rile of the accused in the case. The cases in
which accused is implicated with the help of Section 34 and 149 of
the Indian Penal Code, the court should consider with even greater
care and caution because over implication in the cases is a matter of
common knowledge and concern;
viii) While considering the prayer for grant of anticipatory
bail, a balance has to be struck between two factors namely, no

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prejudice should be caused to the free, fair and full investigation
and there should be prevention of harassment, humiliation and
unjustified detention of the accused;
ix) The court to consider reasonable apprehension of
tampering of the witness or apprehension of threat to the
complaint;
x) Frivolity in prosecution should always be considered and it
is only the element of genuineness that shall have to be considered
in the matter of grant of bail and in the event of there being some
doubt as to the genuineness of the prosecution, in the normal course
of events, the accused is entitled to an order of bail.
Keeping in mind the law laid down in those authorities, I
would now consider the material available in the investigation papers in
connection with the allegations levelled against the applicant in FIR.
14. At the outset, it may be stated here that it is contended in
the application that FIR is lodged by former Member of Parliament Kirit
Somayya. Perusal of FIR does not support said contention as FIR is
lodged by API Mohite of PS Azad Maidan. Even if the argument of
learned advocate for applicant is accepted for the time being that said
statement is made in the application as copy of FIR was not received by
the applicant when the application was drafted for filing in the court,
the fact remains that the statements made in Para­11 & 15 of the
application about the so called political vengeance against the applicant
are not prima­facie supported by any other material hence, it is difficult
to accept at this stage that applicant is falsely implicated in this crime
with an intention to malign her image by getting her arrested at the
hands of police or otherwise.
15. It is alleged in FIR that Sharjeel, in whose support the
applicant has uttered slogans with the help of 50­60 others as '''kjfty rsjs
liuksdks ge eafty rd igqpk;saxs'', has instigated various persons by giving
speeches to cut the State of Assam from India. It is alleged that said

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Sharjeel has used various words in his speeches like “...vklke dks dkVuk
gekjh ftEesnkjh gS...”, “...D;qds fpdsUl usd eqlyekuksdk gS...” “...fcloh lnh dk lcls
cMk QkflLV fyMj xka/kh [kqn gS”, etc.. Having considered those statements in
FIR, I could not find any force in the argument of learned advocate for
the applicant, at least at this stage, that the utterance of one slogan for
few Seconds by the applicant in support of said Sharjeel is not required
to be considered seriously because, there is material in the investigation
papers which prima­facie shows that besides uttering slogan in support
of said Sharjeel, applicant has given a like to the photograph of said
Sharjeel posted on Facebook by one Sumeet Samos with a comment as
“Release Sharjeel Imam Unconditionally” so also, applicant has further
shared said photograph with comment as above on her Facebook
Account. Even though, this court is not dealing with the matter or the
crime allegedly committed by said Sharjeel, ultimately the impact of the
slogan uttered by the applicant in support of said Sharjeel, in my
opinion, prima­facie attracts the ingredients of Section 124­A of Indian
Penal Code to the effect that applicant has attempted to bring into
hatred or disaffection towards the Government of India especially
because, it does not appear that applicant was not aware of the contents
of the speeches given by said Sharjeel. Section 124­A of IPC prescribes a
punishment of life imprisonment & fine or punishment which may
extend to three years & as such, the allegations levelled against the
applicant are serious in nature.
16. In view of the law laid down by Hon'ble Apex Court in a
case of Siddharam Mehetre Vs. State of Maharashtra cited above,
impact of grant of anticipatory bail particularly in cases of large
magnitude affecting a very large number of people has to be kept in
mind. In the matter in hands, as mentioned above, offences registered

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against the applicant are serious in nature. The argument of learned
advocate for the applicant that applicant will have to attend her Final
Year examination in the month of coming March or April is without any
supporting material. Even if said argument is accepted as it is being not
disputed by learned CPP in the course of his argument, said ground in
itself is not sufficient for directing release of the applicant on
anticipatory bail in the facts & circumstances of the matter especially
because, applicant has not attended the police station after she was
called upon by the police by giving calls on her mobiles and on the
mobile of her mother.
17. Again, the fact that learned advocate for the applicant has
stated at the Bar that applicant is ready to handover her mobile handset
to the investigating officer is concerned, it is also not sufficient for
directing release of applicant on anticipatory bail because, the custodial
interrogation, as permissible in law, with the applicant by the
investigating officer may have a great impact on the investigation of the
crime for reaching to the root of the matter. Again, it is submitted at the
Bar by learned CPP that applicant has recently deleted her Facebook
Account after registration of FIR with an intention to destroy the
evidence. Learned advocate for applicant has not disputed the argument
of learned CPP that applicant has deleted her Facebook Account
however, according to him, applicant has temporarily disabled her
Facebook Account for avoiding unwanted trolling. Said argument of
learned advocate for applicant is not acceptable, at least at this stage,
because any reference thereof is not available in the application filed for
grant of anticipatory bail.
18. Having regards to those aspects, nature of allegations
available against the applicant, the fact that applicant has deleted her

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Facebook Account about which there is no explanatory reference in the
application so also, having regards to the fact that custody of applicant
appears essential with the investigating officer for seizure of the mobile
handset & for interrogation purposes, this court is of the opinion that
this is not a fit case to exercise discretion under Section 438 of Cr.P.C.
for directing release of applicant on anticipatory bail. Thus, an order.
ORDER
Anticipatory Bail Application No.221 of 2020 stands rejected.
Date : 05/02/2020. (P.P.RAJVAIDYA)
Dictated on : 05/02/2020. Addl. Sessions Judge,
Checked on : 06/02/2020. C.R.No.16, City Sessions Court,
Signed on : 06/02/2020. Mumbai.

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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”.
10.02.2020 at 12.00 p.m. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with C.R.No.) HHJ SHRI.P.P.RAJVAIDYA
(C.R.No.16)
Date of pronouncement of Order 05/02/2020
Order signed by P.O. on 05/02/2020
Order uploaded on 10/02/2020