High Court

Legal Reasoning

-1- BA.2106.2024IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADBAIL APPLICATION NO. 2106 OF 2024Mangesh S/o. Suresh Lahunde, Age : 22 years, Occu. : Labour, R/o. : Saraswati Colony, Ward No.7, Shrirampur, Tq. Shrirampur, Dist. Ahmednagar.… ApplicantVersus1.The State of Maharashtra, Through Police Station In Charge, Shrirampur City Police Station,Tq. Shrirampur, Dist. Ahmednagar. 2.X.Y.Z.… Respondents.…...Mr. Vijay B. Jagtap, Advocate for ApplicantMr. N. D. Batule, APP for Respondent – StateMr. Joydeep Chatterji, Advocate for Respondent No.2…...CORAM : ABHAY S. WAGHWASE, J.RESERVED ON : 06 JANUARY, 2025PRONOUNCED ON : 08 JANUARY, 2025ORDER : 1.Applicant invokes section 483 of Bharatiya NagarikSuraksha Sanhita, 2023 (for short, “BNSS Act”) to seek relief ofregular bail on account of his arrest in Crime No.0889 of 2024registered at Shrirampur City Police Station, Shrirampur, Dist.Ahmednagar for offence punishable under sections 137(2), 64(i)(m) of BNSS Act and under sections 4, 8 and 12 of the Protection ofChildren from Sexual Offences Act, 2012 (for short, “POCSO Act”). -2- BA.2106.20242.Learned counsel for applicant pointed out that,applicant is arrested on 06.10.2024. That, after three days ofpolice custody, applicant is in M.C.R. Learned counsel pointed outthat, victim seems to be 17 years and some months old. That,initially her parents lodged missing report. That, there was loveaffair between applicant and victim. That, victim after 21 days ofmissing, lodged report implicating present applicant for aboveoffence. That, her narration is false and afterthought, and at thebehest of her parents and police. Learned counsel pointed out that,victim herself denied any sexual offence for any physical or mentaloffence while she was examined by medical authorities. That,document to that extent is also part of charge-sheet. That,informant mother and victim girl are changing versions time totime raising credibility of their versions. That, applicant, who is inhis early twenty’s, is behind bars since long period. Now, entireinvestigation is almost over. That, there is no recovery ordiscovery to be made for him and therefore, there is no need for hisfurther custody. It is pointed out that, learned trial court has onone hand observed about earlier statement of victim and statementgiven at later point of time under section 164 Cr.P.C., however,rejected the application without assigning plausible reasons.Hence, he urged for grant of bail. -3- BA.2106.20243.While opposing the bail application, learned APPpointed out that, victim is below 18 years of age. Her birthcertificate is on record. Therefore, according to him, the stand ofacquaintance or love affair loses its significant. He pointed out that,victim herself gave her statement and specifically stated whateveracts applicant indulged into. That, she was taken to places on thepretext of marriage. On this count, learned counsel took this courtthrough the statement of the victim. Alleging commission ofserious offence, learned APP prays to reject the application. Learned counsel for complainant also pointed out thatthough victim has given some initial statement, it was underpressure. That, there are clear observations to that extent in theorder of learned trial court and hence he too opposes theapplication for bail. 4.After considering the above submissions and on goingthrough the papers, it appears that, report is at the instance ofmother of victim on 14.09.2024 regarding missing of her daughterat Shrirampur City Police Station. She has specifically alleged that,she is sure that, some unknown person for unknown reason haslured her daughter. In the statement of victim, which seems to be recorded -4- BA.2106.2024on the next day i.e. on 15.09.2024, she has stated that, after failingin exam and on account of quarrel with mother, she herself left herhouse in anger and went to Shirdi and later on to Nashik and thatno one lured her and that she has no complaint. Injury certificatedated 16.09.2024 i.e. immediately her appearance in police stationissued by Sub District Hospital, Shrirampur carries remark that,“patient denies any king of physical, mental or sexual assault anddenied medical examination” . Thereafter, papers show that, on 15.09.2024,statement of informant was also recorded by Shrirampur CityPolice Station and she too reiterated that her daughter was notlured by anyone and that too due to domestic quarrel, her daughterleft the house and the girl is back with her and as such she has nocompliant.5.It further emerges that, again on 06.10.2024accompanied by her mother and grandmother, victim approachedpolice station and narrated that in April 2024, when her motherset up a food stall in a fare, present applicant came in her contact,initially approached her on Instagram and later on developedtelephonic contact. She further alleged that, in September 2024, heinitially called her at a temple, took her on his motorcycle at hisgrandmother’s place and there some quarrel taking place between -5- BA.2106.2024them. She has also alleged that during stay at his grandmother’splace, against her wish, he had physical relations with her and onnext day they went to Kopargaon and from there she was broughtby his aunt and again dropped at Shrirampur. Thus, her above statement is almost after three weeksof her alleged missing and after being back in custody of informantmother. Papers show that, as discussed above, during first medicalexamination, she did not report any act of sex either forceful orotherwise and moreover refuse to submit her medical examinationdenying any mental or physical assault. Papers also show that, shewas again produced before medical authorities on 06.10.2024 i.e.on allegation of sexual assault. Said report shows that opinionabout sexual assault is kept pending till receipt of FSL analysis.Learned APP did not point out current position as to when said FSLreport would be available, however, apparently victim is subjectedto medical examination after three weeks.6.Thus, what transpires from the papers and charge-sheet is that, on the day of occurrence, girl is 17 years and somemonths old. Initially, report is about missing, but victim herselfreported police that she had left the house on account of anger.Even mother confirms and gives a statement that she has nocomplaint against anyone i.e. by virtue of statement dated -6- BA.2106.202415.09.2024. on 06.10.2024, while in custody with parents andinformant, after 21 days, above allegations of physical intimacyagainst her wish are alleged. As pointed out that, both, victim andher mother appears to be changing their statements before policeas well as learned Magistrate. Therefore, with such material andwhen there is no concrete opinion about sexual assault and furtherwhen there is no convincing reason to further detain the applicant,relief as prayed deserves to be granted. Hence, the following orderis passed :- ORDER(i)Application is allowed. (ii)Applicant Mangesh S/o. Suresh Lahunde be released onbail in connection with Crime No.0889 of 2024 registeredwith Shrirampur City Police Station, Shrirampur, Dist.Ahmednagar on executing P.B. of Rs.15,000/- with one suretyin the line amount. (iii)Applicant shall attend the concerned police station asand when called by the Investigating Officer and shall co-operate in the investigation. (iv)Applicant shall not tamper prosecution evidence. (ABHAY S. WAGHWASE, J.) Tandale