The High Court
Case Details
1 ba1864.23IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABADBAIL APPLICATION NO. 1864 OF 2023TEJAS MANOHAR NETKEVERSUSTHE STATE OF MAHARASHTRA AND ANOTHER…Advocate for Applicant : Mr. S.S. ThombreAPP for Respondent No. 1/State : Mr. A.S. ShindeAdvocate for Respondent No. 2 : Mr. D.B.Pokale... CORAM : S.G. CHAPALGAONKAR, J. Date of Reservation : 11.12.2023 Date of Pronouncement : 19.12.2023. PER COURT : 1. The applicant seeks regular bail in connection withCrime No. 385 of 2022, registered with Ashti police station,Tq.Ashti District Beed for the offences punishable undersections 363, 376(2)(N), 323, 344, 506 of the Indian Penal Codeand Sections 4,6,8,12 and 17 of the Protection of Children FromSexual Offences Act, 2012 (for short the “POCSO”) Act.2. Investigation was set in motion on the basis of theinformation given by the victim’s father, who alleges that on 2 ba1864.2327.11.2022 his minor daughter gone missing from his home.Inspite of several efforts to find out her whereabouts, she couldnot be traced out. It is further alleged that theapplicant/accused might have kidnapped the victim, sincepreviously similar offence has registered against him.3.On the basis of such information an offencepunishable under Section 363 of the Indian Penal Code hasbeen registered against the applicant. 4.It appears that on 17.07.2023 when victim isbrought back her, statement is recorded wherein, she disclosedthat she had love affair with the applicant. Previously she hadflee away with applicant to Kolhapur, however, on registration ofoffence under Crime No. 191 of 2022 against the applicant andhis consequential arrest, she was residing with her parents.However, when the applicant was enlarged on bail, she hadfrequent conversation with the applicant through the socialmedia. 5.On 27.10.2022 her parents had been to Faltan. Inthe night at about 1.00 hrs. she flee away along with the 3 ba1864.23applicant on his motorcycle leading to registration of Cr. No.385 of 2022 on complaint of informant/father of victim. Thevictim went to Majalgaon and stayed together for a period of onemonth in a rented premises. During this period they hadphysical relations. After one month’s stay at Majalgaon theywent to Velu, Taluka Bhor, District Pune on motorcycle. Theystayed with maternal aunt of the applicant for a night. Theapplicant got employment in a Company along with the facilityof accommodation. They stayed together for two months in thesaid accommodation and had established physical relations.After two months the applicant left the job and resided at Velu,Tq Bhor in a rented premises for a period of four months.During stay, they had consistent physical relations. Thereafter,they stayed in a rented premises of one Anil Ghumre.Meanwhile, she got employment in Namdev Textile and residedat Kodanpur Phata. On 12.07.2023, she went to maternal auntof the applicant, where uncle of the applicant namely Anil Dhuspersuaded her to go back to parents. He called her uncle i.e.Kishor Mastud At Velu and asked him to take her back. So as toavoid uncle, both of them went to Kolhapur and stayed there ata lodge and then came back to Arvi. When she had been to thework, her father reached at Arvi, called police and brought back
Legal Reasoning
6 ba1864.23to condition Nos. 2(i), 2(iii), 2(iv) and 3 and submit that thesubsequent conduct of the applicant lead to registration ofpresent crime. It constitutes breach of conditions of bail grantedto him vide order dated 04.10.2022 in Crime NO. 191 of 2022.Learned APP further invited attention of this Court to thestatement of victim dated 25.07.2023 recorded under Section164 of Cr.P.C., which indicates that the applicant had inducedthe minor victim and persistently raped her under threats. 9.Having considered the submissions advanced andafter perusal of the record, it is apparent that the victim isminor, her date of birth is stated to be 20.05.2006. PreviouslyCrime No. 191 of 2022 has been registered against the applicantfor the offences punishable under Sections 363, 376, 376(2) (j)(n) read with Section 34 of the Indian Penal Code and Section 4,8, and 12 of the POCSO Act, 2012, wherein he is alleged tohave kidnapped minor victim and thereby committed aforesaidoffences. In that case the learned Additional Sessions Judge,Beed enlarged the applicant on regular bail vide order dated04.10.2022. The release of the applicant was subject to variousconditions however, the condition No. 2(i), 2(iii), 2(vi) and 3 arerelevant, which reads thus : 7 ba1864.23“2(i) The applicant shall not tamper with theprosecution witnesses and evidence. 2(iii) The applicant shall not directly orindirectly make any inducement, threat orpromise to any person acquainted with thefacts of the case so as to dissuade him fromdisclosing such facts to the Court or to anypolice officer. 2(vi) Applicant shall not enter in the area ofvillage Takalsing, Tq. Ashti, Dist. Beed tillconclusion of trial of this case.3) If applicant breached any condition thenhis bail will be canceled.”10.It is pertinent that after release of the applicant hewas consistently in contact with the victim through social mediaand again flee away with the victim in the night of 27.10.2022.The victim on her own volition accompanied the applicant. Theytravelled together on a motorcycle from village of the victimtowards Majalgaon and stayed for a period of one month in arented premises. Then they proceeded towards village Velu Tq.Bhor, District Pune. The applicant got a job in a company withfacility of stay in the compound, where the applicant and victimresided together for a period of two months. Thereafter,applicant changed his job and resided in a rented premisesalong with victim for a period of four months. Meanwhile, thevictim had also searched a job for her and worked at Kodanpur 8 ba1864.23Phata with Namdeo Textile. Thereafter, father of the victimcame to know about her whereabouts and brought her backwith the help of police. All the aforesaid circumstances clearlydepicts that the applicant and victim are deeply involved witheach other and eager to continue their relationship as husbandand wife. The informant, the father of the victim might havesome reservations. Naturally, since the victim is minor thefather would make an endeavour to protect the victim fromcontinuing of relationship with the applicant. Looking to thedate of birth of the victim, yet she has not attained the majority.Technically speaking offences levelled in this case would attractagainst the applicant. However, considering the conduct of thevictim and her affinity towards the applicant it is apparent thatfather’s efforts or recourse of law are failing short to preventrelationship.11.The fact remains that the applicant and the victimstayed together for a period of eight months as husband andwife, apparently the applicant’s parents are in favour of suchrelationship and because of technical hurdle of minority of thevictim the marriage could not be performed. 9 ba1864.2312.It is true that the applicant was enlarged on bail inprevious crime subject to the aforesaid conditions. The learnedAPP informs that proceeding is initiated for cancellation of bailbefore the Special Court. Whether the conduct of the applicantconstitutes breach of conditions is a subject matter forconsideration of the Special Court if an application is movedseeking cancellation of bail by the prosecution. However, whileconsidering the plea for bail in present crime, this Court cannotignore the conduct of the victim and the fact that the victim onher own volition resided for a period of eight months with theapplicant at different places. The contents of victim’s statementrecorded under Section 161 of Cr.P.C. clearly depicts that she isin deep love with the applicant and she want to continue withher relationship with him. Although, victim’s statementrecorded under Section 164 of the Cr.P.C., after she is handedover to parents in advance, at this stage the veracity of suchstatement need not be gone into. In the peculiar facts of thecase, a case is made out for grant of bail subject to certainconditions. Hence following order :-O R D E R i. Bail Application is hereby allowed.
Arguments
4 ba1864.23her. 6.It appears that the applicant has been arrested inpursuance of aforesaid crime on 07.09.2023. He was remandedto police custody till 11.09.2023, since then he is behind thebar.7.Mr. Thombre, learned Advocate appearing for theapplicant would submit that it is a case of love affair betweenthe applicant and the victim and by now, the victim hasattended the age of majority. Although she was minor, she hadflee away with the applicant on her own voliation, however,because of the resistance of her father previously, an offencewas registered vide Crime No. 191 of 2022 against the applicant.He was accordingly arrested, however, looking to thecircumstances he was enlarged on bail. Again the victimpersuaded the applicant to visit her and maintainedcommunication through social media. Due to persistent followup of the victim, both of them decided to flee away. Accordinglyon 27.11.2022 both of them left home and resided together ashusband and wife for a period of eight months. The victimnever complained about the behaviour of the applicant. 5 ba1864.23However, after eight months of continuous stay her fatherbrought her back. Her statement under Section 161 of the Codeof Criminal Procedure (for short ‘Cr.P.C.’) is recorded on17.07.2023 and offences punishable under Section 376 of I.P.C.r/w POCSO Act, 2012 are added. The brother and father of theapplicant are also added as accused in the present crime. Mr.Thombre, learned Advocate for the applicant would submit thatalthough the applicant and victim have strong bond and wish tocontinue their relationship, the father of the victim is coming intheir way and creating hurdles. He would submit that after thevictim is given in the custody of her father, she has been forcedto record statement under Section 164 of Cr.P.C., which isinconsistent with her statement under Section 161 of theCr.P.C. Some allegations are sought to be made against theapplicant which needs to be ignored.8.Learned APP strongly opposed the prayer for grant ofbail. He would submit that the applicant has no respect for law.He do not deserve discretionary relief of bail. The victim is stillminor. Previously the applicant has committed similar offences,however, he was released on bail in Crime No. 191 of 2022 videorder dated 04.10.2022, subject to certain conditions. He refers
Decision
10 ba1864.23ii. The applicant – Tajas s/o Manohar Netke,be released on bail in connection with Crime No.385 of 2022, registered with Ashti police station,Tq. Ashti, District Beed, for the offencespunishable under sections 363, 376(2)(N), 323,344, 506 of the Indian Penal Code and Sections4, 6, 8, 12 and 17 of the Protection of ChildrenFrom Sexual Offences Act, 2012, on hisfurnishing P.B. & S.B. of Rs.50,000/- (Rs. FiftyThousand), on the following conditions :-a] The applicant shall not tamper theprosecution evidence. b] The applicant shall not indulged insimilar offences.iii. Bail application is accordingly disposed off. ( S.G. CHAPALGAONKAR ) JUDGE mahajansb/