Bombay High Court
Apoorv Omkar Pande vs The State Of Maharashtra on 22 December, 2020
Author: Bharati Dangre
Bench: Bharati Dangre
Digitally
Manali
signed by
Manali P.
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P. Date:
Tilak 2020.12.22
20:09:30 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
+0530
CRIMINAL APPELLATE JURISDICTION
CRIMINAL ANTICIPATORY BAIL APPLICATION (ST)
NO.7308 OF 2020
Apoorv Omkar Pande .. Applicant
Versus
The State of Maharashtra .. Respondent
...
Mr.Ranjeet Pawar for the Applicant.
Mrs.M.M. Deshmukh, APP for the State.
CORAM: BHARATI DANGRE, J.
DATED : 22nd DECEMBER, 2020
P.C:-
1 The applicant is incriminated in C.R. No. 469 of
2020 registered with Baramati City Police Station which invoke
Sections 341, 354, 354B, 452, 504, 506, 509 read with Section
34 of the IPC along with Sections 8, 12 and 17 of the Protection
of Children from Sexual Offences Act, 2012 (for short 'POCSO
Act'). Barring Section 354 of IPC and Section 8 of the POCSO
Act, all the other sections are bailable. As far as Section 452 of
the IPC and Section 17 of POCSO are concerned, the applicant is
not indicted.
2 The complaint is lodged by the prosecutrix, aged 17
years, pursuing her education. She has stated that when she used
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to go for the tuition classes, the applicant who is her neighbour
restrained her and expressed his love towards her. When she
ignored him, he in an attempt to persuade her, held her right
hand and expressed feelings of love towards her. The
complainant alleged that she was scared and somehow escaped
from his clutches. It is then alleged that she was threatened that
he should not report the incident to anyone. It is also alleged that
in the month of February, the applicant had forwarded messages
on the mobile of her father which was used by her and text
messages were also forwarded from different SIM numbers. It is
stated that the applicant also threatened her that he would malign
her image in her friend circle. An Instragram account is also
alleged to have been opened by him in the name of the applicant
on which her friends used to chat. It is further alleged in
complaint that he used to send messages and by standing in front
of her flat, he used to stare at her in a manner which would
disgrace her and this is how it is alleged that he outraged her
modesty. Attempts were made by the father of the complainant
to pacify the situation and the applicant was given an
understanding that he should not indulge into such act but he
was persistent in his behaviour and he even threatened her father.
It is alleged that he also went to the extent of saying that he was in
love with the girl and he would entice her away. After going
through the ordeal for almost 8 months, she approached the
police station and lodged the complaint.
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3 The applicant is aged 27 years and the submission is
to the effect that he had expressed his love towards the informant,
who is a girl in her adolescence, but he had no sexual intent. It
was plain exhibition of his feelings, which, in any case, would not
attract Section 12 of the POCSO Act since it make the act of
sexual harassment punishable if it is made with sexual intent. In
any case, the said section is bailable.
4 The application of the applicant has been rejected by
the Sessions Court only on the ground of Section 8 of the
POCSO Act being a non-bailable offence since it adumbrate that
whoever committed sexual assault is liable for punishment either
described of a term which shall not be less than three years but
which may extend to five years is liable for fine. Section 7 of
POCSO Act read as under :-
Section 7 "Whoever, with sexual intent touches the
vagina, penis, anus or breast of the child or makes the child
touch the vagina, penis, anus or breast of such person or
any other person, or does any other act with sexual intent
which involves physical contact without penetration is said
to commit sexual assault".
Perusal of the said section would reveal that whoever
touches the parts of the body of a child as mentioned in the said
section, or makes the child touch any part of such person as
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mentioned in the Section or commits any act with the sexual
intent, which involves physical contact without penetration is said
to have committed sexual assault. The said section is imposed to
cater to grave instances of sexual assault i.e. touching the private
parts of the child or making the child touch the private part of
such person or any other person. The words " or does any other
act with sexual intent which involves physical contact without
penetration" will have to be read ejusdem generis with the first
part of the said section and therefore, any physical touch
inadvertently or without any sexual intent could not be brought
within the sweep of the said section.
Prima facie, looking at the allegations levelled in the
FIR, the applicant expressed his feeling of love towards the
complainant by holding her hand on one occasion. This by itself
cannot be said to be falling within the sweep of Section 7, since
prima facie the ingredients of Section 7 are not made out in the
wake of allegations in the complaint or attempting to contact her
by use of electronic communication. Section 354D - Stalking has
been inserted in the penal code by Act No.13 of 2013. Any man
who follows a woman and contacts or attempts to contact her to
foster personal interaction repeatedly despite a clear indication of
disinterest by such woman commits the offence of Stalking. The
said offence is made punishable on first conviction with
Imprisonment of either description for a term which may extend
to three years. This offence is bailable.
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5 The learned APP Ms.Deshmukh make a feeble
attempt to seek custodial interrogation for the purpose of tracing
out the various sim cards from which the applicant had forwarded
the messages to the complainant, in my opinion, this can very
well be ascertained without custody of the applicant as the mobile
numbers have featured in the complaint. The custodial
interrogation of the applicant for the said purpose is not
warranted. Subject to the stipulation that the applicant will in no
manner pressurize the complainant, he is entitled for being
released on bail in anticipation of his arrest. Hence, the following
order :-
ORDER
Application is allowed.
(a) In the event of his arrest, the Applicant - Apoorv Omkar Pande in connection with C.R. No. 469 of 2020 registered with Baramati City Police Station shall be released on bail on furnishing P.R. bond to the extent of Rs.25,000/- with one or two sureties of the like amount.
(b) The applicant will not enter into the area of Dalinde Nagar, Baramati, where the complainant is residing, till filing of charge-sheet.
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(c) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with facts of case so as to dissuade him from disclosing the facts to Court or any Police Officer and should not tamper with evidence.
(d) The Applicant shall make himself available as and when required by the Investigating Officer.
SMT. BHARATI DANGRE, J Tilak