High Court
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2237.2023BA-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD923 BAIL APPLICATION NO. 2237 OF 2023Pawan Subhash Solanke ..APPLICANT -VERSUS-1.The State of Maharashtra2.XYZ..RESPONDENTS ...Advocate for Applicant : Mr. Chavan Rajendra N.APP for Respondent/State: Mrs.Pratibha J. Bharad Advocate for Respondent no.2 : Mr. Patil Bipinchandra K. (appointedThrough Legal Aid) ….. CORAM : SANJAY A. DESHMUKH, J. DATED : 8th FEBRUARY, 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.340 of 2023registered with Yawal Police Station, Bhusawal, Dist.Jalgaon, for theoffences punishable under Sections 363, 366, 376 of the IndianPenal Code and sections 3 and 4 of the POCSO Act. 2.It is the prosecution case that the applicant taken away theprosecutrix, the daughter of the applicant, who is 16 years and 11 2237.2023BA-2- months. She is student of ITI. The applicant is resident of samevillage. He took her first to Nashik and thereafter to Mumbai. Theywere out of the house from 22/06/2023 to 29/06/2023. Both of themwent to Faizpur Police Station. 3.It is alleged that the applicant committed sexual intercoursewith the prosecutrix, and therefore, section 4 of the POCSO Actalong with section 376 of the Indian Penal Code were invokedagainst the applicant. 4.The learned advocate for the applicant submitted that from sixmonths, the applicant is behind bars. He has roots in the society.Charge-sheet is filed. Trial would take long period. He is relyingupon the authority of Sunil Madhav Patil Vs State of Maharashtra,reported in ABC 2016 (I) 34 BOM, in which law is laid down in paranos.9, 10 and 11 as under :- “9.In view of the increasing offences against thewomen especially of rape, the legislature and judiciaryboth found it obligatory to deal these offences with severepunishment and women can be protected if the laws aremade rigorous. Therefore, report of Justice VermaCommittee was accepted and necessary and significantamendments were made in these two sections. A wrongdoer is to be punished, guilty is to be convicted. However,at the stage of bail, the Court has to consider prima facie 2237.2023BA-3- under what circumstances the offence is committed by theaccused. In the Criminal law, the Court cannot ignore theintention or motive behind the act and that is an importantfactor in the commission of offence so also to decide thequantum of sentence at the end of trial, so in the case ofbail. 10. The offence of rape can be distinguished on the basisof the intention of the accused. There are incidents ofrapes committed by gang like the case of Nirbhaya orMaya Thagi or Mathura which cannot be forgotten byIndian Society. So also rape committed in a savagemanner or repeatedly by a single accused. There aresome instances of rape which take place as a man wantsto satisfy his lust and animal within him overpowers hisreason. There are instances of rape where a man and awoman both are in love with each other and get involvedinto sexual relationship due to either physical orpsychological need and in such type of rape, there is noviolence which exists in other types of rape.11. Today teenagers are exposed to more sex relatedissues and lot of material is also available to them to knowthe sexual relationship between a man and a woman.Because of their impressionable age, girls and boys bothmay tend to get provoked and there can be a curious andvery compelling demand of the body to get into such kindof relationship. Sexual urge differs from person to personand there cannot be any mathematical formula in respectof sexual behavioral pattern of teenagers, as biologicallywhenever the child turns into puberty, the child startsunderstanding his or her sexual needs. The nature ofresponse depends on the upbringing, peer pressure, how 2237.2023BA-4- civilized the environment is etc. Sex requires properphysical and emotional preparation, as it results in manyphysical and emotional consequences. This is allconsidered as a sexual maturation. Therefore, some sectswith view to regularize sexual behaviour of the communityhave acknowledged this biological factor and therefore,the early age marriages are performed in some religionsor communities. Taking into consideration this social andbiological factors, the law makers have considered theage of 15 as a age of consent when the marriage isperformed. Taking into consideration this background, thetrial Judge has to pass an order of bail in such cases”. 5.The learned advocate also relying upon the authority of thisCourt in the case of Manohar Balaji Kadam Vs. The State ofMaharashtra and another in Bail Application No.2045 of 2023,dated 5th January, 2024 and in which in para no.5, it is held asunder:- “5.Perused the charge-sheet. The contradictorystatements of the prosecutirx, recorded under Section161 and 164 of Cr.P.C. Learned advocate for theapplicant pointed out that the prosecutrix age proof i.e.birth certificate is not available and therefore, schoolleaving certificate is filed on record. The statement oflandlord of the applicant and prosecutrix shows that theapplicant and prosecutrix stayed in his room as husband 2237.2023BA-5- and wife. The prosecutrix is having the age ofunderstanding and the consequences. Considering thedifferent set of facts, the authority in the case of SatishKumar Jayanti Lal Dabgar vs. State of Gujarat, cited(supra) is no helpful to respondent No.2.” 6.In the case in hand, there are contradictory statements of theprosecutrix. In her statement dated 30.06.2023, she has stated thatthe prosecutrix insisted him to run away and accordingly herstatement was recorded before the Woman and Child WelfareCommittee, Jalgaon. Initially, the prosecutrix was not willing to gowith her parents but she stayed there only for one night. Thereafter,she was brought to her parents house. Thereafter her version waschanged and her statement was recorded before the Police as wellas the learned Magistrate under section 164 of the CriminalProcedure Code, wherein she alleged that the applicant taken awayher. 7.Criminal antecedents of the applicant is pointed out that hewas an accused in Crime No.463 of 2022 registered under sections279, 379, 337, 427 etc of the Indian Penal Code etc., for commissionof theft of sand. The learned advocate for respondent no.2, therefore,objected to allow this application. 2237.2023BA-6- 8.The learned APP has also strongly opposed the application bycontending that the prosecutrix is child as defined in the POSCO Act.It is lastly prayed to reject the application. 9.Perused the charge-sheet, particularly the report andstatements of the prosecutrix recorded immediately after the incidentby Woman and Child Welfare Committee, Jalgaon. The prosecutrixhas stated that she insisted the applicant to run away. Consideringthe fact that the applicant has roots in the society, he will not fleeaway from the trial, trial will take long period and in view of the lawlaid down in the above authorities Sunil Patil and Manohar Kadam(cited supra), the application therefore, deserves to be allowed oncertain conditions. Hence the following order :- O R D E RI.Application is allowed.II.The applicant in connection with crime No.340 of 2023registered with Yawal Police Station, Bhusawal, Dist.Jalgaon,for the offences punishable under Sections 363, 366, 376 ofthe Indian Penal Code and sections 3 and 4 of the POCSO Actbe released on bail on furnishing personal bond of Rs.50,000/-with one surety of the like amount on following conditions:- a)The applicant shall not pressurize the prosecutionwitnesses and shall not tamper with the prosecutionevidence in any manner.
Legal Reasoning
2237.2023BA-7- b)The applicant shall not enter into village Kolnhavi,Tq.Yawal, Dist. Jalgaon till the decision of the trial. III.Fees of Mr. Patil Bipinchandra K., learned advocate appointedto represent the cause of respondent no.2 be paid through the HighCourt Legal Services Sub-Committee, Aurangabad as per rules. (SANJAY A. DESHMUKH, J.) sga