High Court
Legal Reasoning
465.2024BA-3- applicant. This Court in the case of Vishal S/o Omprakash VermaVs. The State of Maharashtra and anr. reported in 2021 All MR(Cri) 187, in para nos.11 and 12 held as under :- “11. This Court in the case of Sunil Mahadev Patil vs. State of Maharashtra[2016 ALL MR (Cri) 1712] (supra) has observed thus:"9. In view of the increasing offences against the women especially ofrape, the legislature and judiciary both found it obligatory to deal theseoffences with severe punishment and women can be protected if thelaws are made rigorous. Therefore, report of Justice Verma Committeewas accepted and necessary and significant amendments were madein these two sections. A wrong doer is to be punished, guilty is to beconvicted. However, at the stage of bail, the Court has to considerprima facie under what circumstances the offence is committed by theaccused. In the Criminal law, the Court cannot ignore the intention ormotive behind the act and that is an important factor in the commissionof offence so also to decide the quantum of sentence at the end of trial,so in the case of bail.10. The offence of rape can be distinguished on the basis of theintention of the accused. There are incidents of rapes committed bygang like the case of Nirbhaya or Maya Thagi or Mathura which cannotbe forgotten by Indian Society. So also rape committed in a savagemanner or repeatedly by a single accused. There are some instancesof rape which take place as a man wants to satisfy his lust and animalwithin him overpowers his reason. There are instances of rape where aman and a woman both are in love with each other and get involvedinto sexual relationship due to either physical or psychological needand in such type of rape, there is no violence which exists in othertypes of rape.11. Today teenagers are exposed to more sex related issues and lot ofmaterial is also available to them to know the sexual relationshipbetween a man and a woman. Because of their impressionable age,girls and boys both may tend to get provoked and there can be acurious and very compelling demand of the body to get into such kindof relationship. Sexual urge differs from person to person and there 465.2024BA-4- cannot be any mathematical formula in respect of sexual behavioralpattern of teenagers, as biologically whenever the child turns intopuberty, the child starts understanding his or her sexual needs. Thenature of response depends on the upbringing, peer pressure, howcivilized the environment is etc. Sex requires proper physical andemotional preparation, as it results in many physical and emotionalconsequences. This is all considered as a sexual maturation.Therefore, some sects with view to regularize sexual behaviour of thecommunity have acknowledged this biological factor and therefore, theearly age marriages are performed in some religions or communities.Taking into consideration this social and biological factors, the lawmakers have considered the age of 15 as a age of consent when themarriage is performed. Taking into consideration this background, thetrial Judge has to pass an order of bail in such cases.12. The overall considerations while deciding such applications can besummed up as-When a boy and a minor girl are in love with each other and chose tolive together without consent of their parents, then the followingfactors are to be considered:(i) What is the age of the prosecutrix, who is minor.(ii) Whether the act is violent or not.(iii) Whether there are antecedents or not.(iv) Whether the offender is capable of repeating the Act or not.(v) Whether there is likelihood of threats or intimidation, if at all theboy is released.(vi) Whether any chance of tampering with the material witnesseswhen their statements are recorded.(vii) It is also to be taken into account in such cases that a boy in hisearly 20's deserves to get employment and to plan, stabilize andsecure 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 the appellant. TheFIR and the statement of the respondent No.2 shows that there was aconsensual relations between the respondent No.2 and the appellant.” 465.2024BA-5- 7.In the case of Nitin Damodar Dhaberao Vs State ofMaharashtra and another reported in 2024 (2) ABR (Cri) 503, inpara no.6, this Court held as under :- “6. Having heard learned Counsel for the applicant and learned APP forthe State. Perused the investigation papers. There is no dispute as to thefact that applicant is arrested on 30.08.2020 and there is no progress inthe trial though charge sheet is filed on 26.10.2020. As far as merit isconcerned, admittedly victim is of 13 years of age and her consent is notrelevant. However, the statements which are recorded by the InvestigationOfficer shows that victim has left her house at her own accord on thepretext of bringing the book from friend and not returned back at home.She also joined the company of the present applicant and also admittedher love relationship with the present applicant in her statement. From herstatement it reveals that, she stayed along with the present applicant atvarious places and not made any grievance as she was taken by thepresent applicant by using some force. Thus it is apparent that, out of thelove affair, she joined the company of the present applicant. The applicantis also of a tender age of 26 years and out of love affair they cometogether. It seems that, the alleged incident of sexual relationship is out ofthe attraction between the two young persons and it is not the case thatapplicant has subjected the victim for a sexual assault out of lust.Considering the fact that, though charge sheet is filed long back in the year2020 and there is no progress in the trial and trial will take its own time forfinal disposal. In view of that, further incarceration of the present applicantis not required and no purpose will be served by keeping him behind bar.In view of that, the application deserves to be allowed by imposing certainconditions.” 8.It is case of love affair. To love is not an offence. Butovert acts like forced, compelled, or one sided love etc., is seriousoffence. Further sexual assaults on child is made punishable byPOSCO Act irrespective of consent. Our girl child is not safeanywhere. Further the consensual sex between girl child and such 465.2024BA-6- applicant is not excluded from the punishment. Such defence is notavailable to the accused under any statute and such defence wouldbe against the object of POSCO Act. No any criminal force is used bythe applicant. But it does not mean that applicant is entitled foracquittal as a matter of right. The applicant has roots in the society.He will not flee away from the trial. Custody of the applicant is notnecessary. The trial would take long period. Considering the natureof the allegations and ratio laid down in the above authorities as wellas the peculiar set of facts and to prevent further sexual assault, itwould be proper to direct the applicant to not to enter into villageKhudaj, Tq.Sengaon, Dist. Hingoli, till the conclusion of the trial. Theapplication deserves to be allowed on stringent conditions. Hence,the following order. O R D E RI.Application is allowed.II.The applicant in connection with crime No.127 of 2023registered with Narshi Police Station, Tq. & Dist. Hingoli, for theoffences punishable under sections 363, 376(2)(I) of the IndianPenal Code and sections 4, 6, 8, 12 of the Protection ofChildren from Sexual Offences Act, 2012 be released on bailon furnishing personal bond of Rs.25,000/- with one surety ofthe like amount on following conditions:- 465.2024BA-7- a)The applicant shall not pressurize the prosecutionwitnesses and shall not tamper with the prosecutionevidence in any manner. b)The applicant shall not enter in village Khudaj,Tq.Sengaon, Dist. Hingoli, till the conclusion of the trialwithout permission of the trial Court. c)The applicant shall not indulge into same nature ofcrimes again. d)The applicant shall attend the trial regularly. III.If any breach of the above conditions is noticed by the trialCourt, it is at liberty to cancel the bail granted to this applicant withoutfurther reference to this Court. IV.All these observations are prima facie in nature and the trialCourt shall not be influenced by it. V.Fees of Ms.Vanita H. Sangole (Jaitmal), the learned advocateappointed to represent the cause of respondent no.2 be paid throughthe High Court Legal Services Sub-Committee, Aurangabad as perrules and schedule. (SANJAY A. DESHMUKH, J.) sga
Arguments
465.2024BA-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD909 BAIL APPLICATION NO. 465 OF 2024Vishal Subhash Bobade ..APPLICANT -VERSUS-1.The State of Maharashtra2.ABC..RESPONDENTS ...Advocate for Applicant : Mr. Chondhekar Balaji S. APP for Respondent/State : Mrs.Dipali S. Jape Ms.Vanita H. Sangole (Jaitmal), advocate for respondent no.2(appointed). ….. CORAM : SANJAY A. DESHMUKH, J. DATED : 3rd MAY, 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.127 of 2023registered with Narshi Police Station, Tq. & Dist. Hingoli, for theoffences punishable under sections 363, 376(2)(I) of the Indian PenalCode and sections 4, 6, 8, 12 of the Protection of Children fromSexual Offences Act, 2012. 2.It is averred in the report that the daughter of theinformant, who is 15 years and 4 months old, was enticed by theapplicant to have sexual intercourse with her. There were love affairbetween them. 465.2024BA-2- 3.Informant averred in the report that one day earlier to theincident, this applicant came towards the house of the informant andran away. Thereafter, on 2nd day in the afternoon, he enticed hisdaughter. They were out of house for two days. Thereafter, thestatement of the victim child was recorded wherein she stated thatthree times sexual intercourse between the applicant and victim childtook place. 4.The learned advocate for the applicant submits that theapplicant has roots in the society. It is case of love affair. Theapplicant will not flee away from the trial. The trial will take longperiod. It is lastly prayed to allow the application. 5.The learned APP for the respondent-State and thelearned advocate appointed to represent the cause of respondentno.2 strongly opposed the application. He submitted that a child of15 years and 4 months was sexually abused by aggravated sexualassault by this applicant. The applicant is involved in serious crime.The incident of enticing to the child also took place earlier and thewords of understanding were given to the applicant. However, herepeated the same crime. It is lastly prayed to reject the application. 6.Perused the charge-sheet, particularly the report and thestatement of the victim child. The medical examination report of thevictim/prosecutrix is silent as to the aggravated sexual assault, whichis because there was love affair between the prosecutrix and