High Court
Legal Reasoning
288.2024BA-7- safe guard the interest and the well being of the children. Theobject is certainly not to punish minors in romantic or consensualrelationship and brand them as criminals.”9.The learned advocate for the applicant also relying uponthe authority in the case of Vishal S/o Omprakash Verma Vs. TheState of Maharashtra and another reported in 2021 All MR (Cri)187. The paras 11 to 13 of it read as under :- “11. This Court in the case of Sunil Mahadev Patil vs. State ofMaharashtra (supra) has observed thus: "9. In view of theincreasing offences against the women especially of rape, thelegislature and judiciary both found it obligatory to deal theseoffences with severe punishment and women can be protected ifthe laws are made rigorous. Therefore, report of Justice VermaCommittee was accepted and necessary and significantamendments were made in these two sections. A wrong doer isto be punished, guilty is to be convicted. However, at the stage ofbail, the Court has to consider prima facie under whatcircumstances the offence is committed by the accused. In theCriminal law, the Court cannot ignore the intention or motivebehind the act and that is an important factor in the commissionof offence so also to decide the quantum of sentence at the endof trial, so in the case of bail. 10. The offence of rape can bedistinguished on the basis of the intention of the accused. Thereare incidents of rapes committed by gang like the case ofNirbhaya or Maya Thagi or Mathura which cannot be forgotten byIndian Society. So also rape committed in a savage manner orrepeatedly by a single accused. There are some instances ofrape which take place as a man wants to satisfy his lust andanimal within him overpowers his reason. There are instances ofrape where a man and a woman both are in love with each other 288.2024BA-8- and get involved into sexual relationship due to either physical orpsychological need and in such type of rape, there is no violencewhich exists in other types of rape. 11. Today teenagers areexposed to more sex related issues and lot of material is alsoavailable to them to know the sexual relationship between a manand a woman. Because of their impressionable age, girls andboys both may tend to get provoked and there can be a curiousand very compelling demand of the body to get into such kind ofrelationship. Sexual urge differs from person to person and therecannot be any mathematical formula in respect of sexualbehavioral pattern of teenagers, as biologically whenever thechild turns into puberty, the child starts understanding his or hersexual needs. The nature of response depends on theupbringing, peer pressure, how civilized the environment is etc.Sex requires proper physical and emotional preparation, as itresults in many physical and emotional consequences. This is allconsidered as sexual maturation. Therefore, some sects withview to regularize sexual behaviour of the community haveacknowledged this biological factor and therefore, the early agemarriages are performed in some religions or communities.Taking into consideration this social and biological factors, thelaw makers have considered the age of 15 as a age of consentwhen the marriage is performed. Taking into consideration thisbackground, the trial Judge has to pass an order of bail in suchcases. 12. The overall considerations while deciding suchapplications can be summed up as- When a boy and a minor girlare in love with each other and chose to live together withoutconsent of their parents, then the following factors are to beconsidered: (i) What is the age of the prosecutrix, who is minor.(ii) Whether the act is violent or not. (iii) Whether there areantecedents or not. (iv) Whether the offender is capable ofrepeating the Act or not. (v) Whether there is likelihood of threatsor intimidation, if at all the boy is released. (vi) Whether any 288.2024BA-9- chance of tampering with the material witnesses when theirstatements are recorded. (vii) It is also to be taken into account insuch cases that a boy in his early 20's deserves to getemployment and to plan, stabilize and secure his future.12. In the present matter, the victim is 15 years old girl, and in herstatement, she has admitted that she had love affair with theappellant. The FIR and the statement of the respondent No.2shows that there was a consensual relations between therespondent No.2 and the appellant.13. As far as, the promise of marriage is concerned, the Hon'blethe Supreme Court of India in the case of Pramod SuryabhanPawar Vs. State of Maharashtra and another reported in 2019 (9)SCC 608, has observed that the "consent" of a woman withrespect to Section 375 must involve an active and reasoneddeliberation towards the proposed act. To establish whether the"consent" was vitiated by a "misconception of fact" arising out ofa promise to marry, two propositions must be established. Thepromise of marriage must have been a false promise, given inbad faith and with no intention of being adhered to at the time itwas given. The false promise itself must be of immediaterelevance, or bear a direct nexus to the woman's decision toengage in the sexual act.”10.The learned advocate for the applicant is further relyingupon the authority in the case of Sunil Mahadev Patil Vs The Stateof Maharashtra reported in 2016 All MR (Cri) 1712. The para 11 ofit read as under :- “11. Today teenagers are exposed to more sex related issues 288.2024BA-10- and lot of material is also available to them to know the sexualrelationship between a man and a woman. Because of theirimpressionable age, girls and boys both may tend to getprovoked and there can be a curious and very compellingdemand of the body to get into such kind of relationship. Sexualurge differs from person to person and there cannot be anymathematical formula in respect of sexual behavioral pattern ofteenagers, as biologically whenever the child turns into puberty,the child starts understanding his or her sexual needs. Thenature of response depends on the upbringing, peer pressure,how civilized the environment is etc. Sex requires proper physicaland emotional preparation, as it results in many physical andemotional consequences. This is all considered as a sexualmaturation. Therefore, some sects with view to regularize sexualbehaviour of the community have acknowledged this biologicalfactor and therefore, the early age marriages are performed insome religions or communities Taking into consideration thissocial and biological factors, the law makers have considered theage of 15 as a age of consent when the marriage is performed.Taking into consideration this background, the trial Judge has topass an order of bail in such cases.”11. The learned APP for the respondent – State and learnedadvocate for respondent no.2 strongly opposed the application andsubmitted that the applicant has committed serious offence underSpecial Act i.e. POSCO Act. The applicant’s father is having a photostudio and therefore, he has edited some photographs of theapplicant and informant. It is forceful love. By using the said editedphotographs, he was giving threats to the informant. He hascommitted rape on the informant, who is child. Her consent is not 288.2024BA-11- legal consent. Therefore, considering the serious nature of the crime,it is lastly prayed to reject the application. 12.Perused the charge-sheet, particularly, the report andthe statements of the witnesses. It is not disputed that the informantis 17 years old and her birth date is 25.05.2006. Therefore, as perthe POCSO Act and Section 90 of the IPC, her consent for allegedsexual intercourse is not a consent in the eyes of law. The conduct ofthe applicant from the report and the statements of the witnessesshow that the applicant forced her for love. The informant is a childas per POCSO Act. Though there is delay for lodging the report, it isexplained that the parents of informant tried to convince theapplicant. There are presumptions against the applicant undersections 28 and 29 of the POCSO Act. The applicant producednumerous photographs and whatsapp chats. Those are produced toshow that there was love affair. But the learned APP and learnedadvocate for respondent no.2 submitted that the applicant’s fatherruns photo studio and the applicant must have developed it asalleged by the informant. 13.To love is not an offence, however, overt act after love iscertainly an offence. Overt act of the applicant is specifically statedby the informant in her report that he showed those photos to herfriends and defamed her. It is alleged by the informant that theapplicant has mixed the stupefying substance in the Pulao and it was 288.2024BA-12- given to her for eating prior to committing of the sexual assault anddue to which she felt dizziness. Thereafter that aggravated sexualassault was committed in a car. After second day of incident, sheregained consciousness. She did not lodge report immediately. Insuch a fact situation the medical evidence cannot be expected. Thereport was not lodged immediately, however, it is admitted fact thatvictim is a child and in Indian culture, Indian girls and womans arenot easily proceeding to file a report about such incident due to fearof defamation and mental trauma etc. It is a matter of evidence andat this stage, meticulous consideration of evidence is not expected. 14.Even if there has been an affair a woman or a girl childmay stop the love affair if temper of both are not adjustable. It ischoice of each one. However, the applicant’s conduct shows that hewanted to continue that love affair even after he was convinced bythe parents of informant to not to harass her. Having earlier love isnot a permanent licence to harass such child frequently only becauseshe loved earlier. A girl or child like applicant has right to refuse tocontinue it. The applicant showed the photographs to the friends ofinformant. This act of the applicant is illegal, serious criminal overtact. It is kind of blackmail. This shows that he tried to defame her onpretext of love showing her photographs to other shows that he wantto compel her to love with him forever. Thus it is forcible love, sincebeginning. 288.2024BA-13- 15.The learned advocate for the applicant also submittedthat after the sexual assault a report was not lodged by the parents ofthe informant when she was missing for two days. But fact is that shewas not residing with them. However, it is a matter of evidence andthe facts of case show that the informant was not residing with herparents. They were not knowing the facts. Further the conduct ofparents shows that they tried to convince the applicant to not to meetthe informant. But thereafter, the applicant tried to contact her, andtherefore, the report was lodged. All these facts if considered alongwith the object of POCSO Act, the ratio laid down in the aboveauthorities (cited supra) by the applicant cannot be made applicableto this case as the facts are different and it was not real love butforcible love. Considering all these aspects, the argument of thelearned advocate for the applicant is not acceptable. If the applicantis released on bail, there is possibility of pressurizing the prosecutionwitnesses. Considering serious nature of the crime and in view of thelaw laid down by the Hon’ble Apex Court in the cases of DeepakYadav Vs. State of Uttar Pradesh and another, (2022) 8 SCC559Shahzad Hasan Khan Vs. Ishtiaq Hasan Khan and another,(1987) 2 SCC 684, that applicant is involved in the serious crime.The application deserves to be rejected. 16.It is also alleged that the applicant’s father is havingphoto studio, therefore, easily those photographs and WhatsApp 288.2024BA-14- chatting was developed. It is matter of evidence. As far as fabricatedphotographs and alleged fabricated WhatsApp chat produced beforethis Court are concerned, it is produced before this Court. The familymembers of this applicant are having custody of those photographsand chats. There is fear of showing those to others again. Therefore,it would be proper to prohibit them from showing or using thosephotographs and whatsapp chats except in defence in the Court.Investigating Officer may consider this aspect in legal sense andproceed further for use of the same as per the provisions of law. Theapplication deserves to be rejected. Hence the following order:- O R D E R1.Application is rejected.2.The fees of Ms.Neeta Mirajkar, the learned advocate appointedto represent cause of respondent no.2 be paid through theHigh Court Legal Services Sub-Committee, Aurangabad as perthe schedule and rules. (SANJAY A. DESHMUKH, J.) sga
Arguments
288.2024BA-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD908 BAIL APPLICATION NO. 288 OF 2024Pratik Pravin Sathe ..APPLICANT -VERUS-1.The State of Maharashtra2.XYZ..RESPONDENTS ...Advocate for Applicant : Mr. Karale Patil Sattyajeet S.APP for Respondent/State : Mr.M.K. Goyanka Advocate for Respondent no.2 : Ms.Neeta Mirajkar(appointed) ….. CORAM : SANJAY A. DESHMUKH, J. DATED : 2nd APRIL, 2024. PER COURT :- 1.The applicant is seeking bail under section 439 of theCriminal Procedure Code, 1973 (for short, “Cr.P.C.”). The applicanthas been arrested in connection with crime No.467 of 2023registered with Supa Police Station, Dist. Ahmedangar, for theoffences punishable under sections 376(3), 354-D(2), 328 of theIndian Penal Code, 1860 (For short, “IPC”) and sections 4, 8 and 12of the Prevention of Children from Sexual Offences Act, 2012 (Forshort, “the POCSO Act”). 288.2024BA-2- 2.Informant-17 years old girl averred in the report that shewas residing in Ahmednagar city in a rented room for her education.On 02.04.2023, there was birthday of her friend, therefore, she cameto Punewadi for attending it. After 2-3 days of birthday sister of herfriend made phone call to her and told her that the applicant is willingto develop friendship with her. She flatly refused that proposal andtold her that she is concentrating on her study. Thereafter, she cutthe phone call of this applicant. The applicant was talking from thesame phone by conference call. Thereafter she got phone call fromunknown mobile phone no.7588975817. When she asked as to whohe is, he replied that he was the applicant. Again he put proposalthen she switched off phone and it was kept in the blacklist. 15 daysthereafter, again she got phone call from mobile phoneno.9699041469. That person told her that he is Vivek Rathod. He is afriend of applicant. He told that the applicant has consumed poison.He questioned her as to what is difficulty to her to accept hisfriendship and told that because of her, his life is spoiling. He againrequested her to accept the friendship of the applicant and told her toremove his phone number from blacklist, otherwise, he will die. Theinformant was frightened. She removed his phone number fromblacklist. On 2nd day, she got phone call of this applicant. That timehe told her that he has to develop friendship with her. 288.2024BA-3- 3.The applicant was frequently making phone call to herbut she was not talking more with him. When applicant tried to call inorder to convince her frequently, she blacklisted his phone number.Thereafter, after completion of her examination in the summervacation, she went to Wagholi to stay with her maternal uncle. InJuly, 2023, the informant joined the college. She was residing in therented room at Ahmednagar. She got phone call from unknownphone. That person requested her to unblock the mobile phonenumber of the applicant. She felt that the applicant might havechanged his attitude and she unblocked mobile phone number ofapplicant. 4.In the month of August, 2023 at about 1.30 p.m. whenthe informant was proceeding to her room, the applicant came to herwith Ertiga Car. That time one unknown person was with him. Theapplicant requested her to come with him outside. She refused butthe applicant was not ready to go outside of that room, therefore, shewent to convince him to go from that area. Thereafter, the applicantrequested her to come for lunch. Therefore, the informant along withher friend Rutuja become ready to go with him. The applicant tookthem to Chandbibi Mahal hotel. Thereafter that unknown personVivek Rathod took some group photographs of them. Thereafter,after 6-7 days the applicant started to blackmail her and said thatfrom the group photographs snapped at Chandbibi Mahal, he has 288.2024BA-4- created some photographs of the informant and him. He sent thosephotographs to her and threatened that he will send thosephotographs to her father and will viral it. He went to medical shop offather of informant. Informant was not responding him. However, hewas frequently calling her and threatening her. Due to those threatsinformant gave consent to talk with her. Thereafter the applicant wascalling her frequently for visit. He used to come to her roomfrequently and used to close the door. 5.On 24.09.2024, at about 10.00 a.m., informant wasproceeding to her native place, that time the applicant made phonecall to her and requested her to come at stop at Supa. She stoppedat Supa S.T. stand. The applicant came there with Ertiga Car atabout 11.30 a.m. He brought Pulao (rice) with him. When both wereproceeding by a Car towards Parner, he took her to windmill nearShahjanpur. She ate that Pulao. After eating that Pulao, she feltdizziness. The applicant committed forcible sexual intercourse withher in a Car. Because of dizziness, she became unconscious anddue to which she was unable to resist him. When she regainedconsciousness on 2nd day of the incident, the applicant dropped herto her room. That time informant asked her, as to how she suffereddizziness. The applicant told her that the applicant has mixed somestupefying substance in that Pulao. Therefore, she becameunconscious and thereafter, the applicant has committed sexual 288.2024BA-5- intercourse with her. Thereafter, also the applicant was trying to havesexual intercourse with her. Informant was refusing for it. However,he was continuously trying to visit her. Therefore, the informantdecided to leave that room. She told her parents that she is leavingthat room. When she came to her parents at the time of Navratriholidays, she told that incident of sexual assault to her parents andabout leaving of that room. Her parents met the applicant and toldhim not to meet informant and not to keep any relationship with her.Thereafter he deleted photographs from the computer of his PhotoStudio and his mobile phone. Thereafter, he did not make any phonecall to the informant. After Dasara festival, the applicant went to herschool and shown the edited photographs to her practical partnerPrem Ashok Paval and other classmates. The informant lodged thereport on 14.11.2023. The applicant was arrested on 15.11.2023. 6.The learned advocate for the applicant submitted that itis case of love affair. He pointed out some photographs which showthat the applicant and informant were in happy mood. He furtherpointed out the WhatsApp chatting and submitted that once theinformant sent message that even if there is strong opposition thenalso they will marry with each other. According to the applicant, it is acase of pure love and now it is alleged that the applicant harassedher. The learned advocate for the applicant further submitted that theapplicant had no criminal antecedents. There is no medical evidence 288.2024BA-6- of alleged sexual assault. The applicant has roots in the society. Hewill not flee away from the trial. Trial will take long period. 7.The learned advocate for the applicant further pointedout that the informant requested the applicant to deposit Rs.11,000/-and Rs.4,000/-, which appears from the chatting dated 12.11.2023.The learned advocate for the applicant submitted that the applicantbelongs to Scheduled Caste and the informant belongs to opencategory, and therefore, there was opposition to their marriage andthat is the reason for lodging the report. The learned advocate forthe applicant further submitted that it is surprising to note that areport was not lodged by the parents of the informant when she wasmissing for two days. The applicant is 19 years old and he has nocriminal antecedents, therefore, the learned advocate for theapplicant lastly prayed to allow the application. 8.The learned advocate for the applicant is relying uponthe authority in the case of Imran Iqbal Shaikh Vs. The State ofMaharashtra and another in Bail Application No.997 of 2022,decided on 26th April, 2023. Para no.4 of it reads as under :- “4. It is true that the victim is a child within the meaning of section2(d) of the POCSO Act. The Applicant was also a young boy of 22years of age at the time of the incident. The statement of the firstinformant prima facie indicates that the relationship wasconsensual. It needs to be noted that the POCSO Act has beenenacted to protect children from offences of sexual assault, sexualharassment etc., and contains stringent penal provisions as to