Bombay High Court
Dr. Banshraj Shivbahadur Dwivedi vs The State Of Maharashtra on 28 February, 2020
Author: Sandeep K. Shinde
Bench: Sandeep K. Shinde
904-BA-432-
2020.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO.432 OF 2020
Dr. Banshraj Shivbahadur Dwivedi ... Applicant
Vs
The State of Maharashtra ... Respondents
...
Mr. Ganesh Gole i/by Mr. Ateet Shirodkar and Satish
Mishra for the Applicant.
Ms. P.P.Shinde , APP for the Respondent-State.
PI Madhusudan Naik attached to Meghwadi P.Stn.
Present.
CORAM : SANDEEP K. SHINDE J.
DATE : 28th FEBRUARY, 2020
P.C. :
Heard.
2 Applicant is seeking his enlargement on bail
in Crime No.215 of 2019 registered with Meghwadi
Police Station for the ofences punishable under
Sections 376(2)(n), 506, 500, 328 of the Indian Penal
Code, 1860 ('IPC' for short) along with Section 67-A of
the Information Technology Act, 2000.
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3 Applicant is a medical practitioner and is 58
years old. Victim, who was allegedly sexually exploited
by the applicant, was about 22 years old when the
alleged incident had taken place. It is her case that, in
May, 2015, when she had been to clinic of the
applicant for treatment, applicant had administered an
injection to her whereafter she fell, unconscious
whereupon she alleged that the applicant sexually
exploited her and recorded video clip of the alleged
act. She did not disclose about the said incident to
anyone, however, she alleged that on confronting the
applicant about the said video clips, he threatened to
make the video clip viral and under that guise, was
repeatedly sexually exploiting, even after her marriage.
It is her case that the alleged obscene video clip
recorded by the applicant was received on mobile of
her husband and thereafter, subject complaint was
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lodged and the ofence came to be registered as
aforesaid whereby the applicant came to be arrested
soon thereafter.
4 It is submitted that the investigation is over
and the trial is not likely to commence and/or conclude
in near future. Applicant has deep roots in the society
and he would be available for the trial. It is further
submitted that the applicant has been falsely
implicated in the case in-as-much as applicant never
forced the complainant to submit herself to his physical
desires.
5 In the course of the investigation, the alleged
video clip was recovered from the pen drive. It was
seen by the lady ofcer and accordingly, whereafter
she fled her report/statement. I have perused the
statement/communication received from the Assistant
Police Inspector attached to Meghwadi Police Station.
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This statement, prima-facie, shows that the victim
voluntarily submitted to the physical desires of the
applicant and further she was not administered any
injection in-as-much as she was found well oriented
and conscious in the video clip. Report/Communication
of the said ofcer is taken on record.
6 Thus, in view of the communication/report of
the lady ofcer, it may be stated that allegations of the
complainant that she was administered injection and
when she fell unconscious, she was sexually exploited
by the applicant, prima-facie, may not be correct.
Therefore, it is to be held that the victim consented to
physical relations with the applicant.
7 As far as the contention regarding any
material to show that the applicant had transmitted
alleged video clip containing sexually explicit act is
concerned, it may be stated that punishment for
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publishing or transmitting material containing sexually
explicit act in electronic form is punishable with
imprisonment, which may extend to fve years. In this
case, prima-facie, there is no evidence to suggest that
this clip was sent by the applicant on whatsapp
account of the complainant's husband. However, the
fact remains that this video clip is now available on
social platform. The learned counsel for the applicant
disputed that the applicant had recorded video of the
obscene act. As to whether it was recorded by the
applicant and/or by the complainant is a question to be
answered only after the evidence is led and after
receiving the report to that efect.
8 At the cost of repetition, it may be stated
that at the relevant time when the incident had taken
place, complainant was 22-23 years old and thus, was
aware of the consequences of the acts, she indulged
into. That since investigation is over and the trial is not
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likely to commence in future but since applicant's
presence for trial can be secured by imposing suitable
conditions and additionally in view of the facts of the
case and in view of the evidence available on record,
applicant is directed to be released on bail. Hence,
following order:
ORDER
(i) The applicant be enlarged on bail in Crime No.215 of 2019 registered with Meghwadi police station, on executing PR Bond in the sum of Rs. 50,000/- with one or two sureties in the like amount;
(ii) The applicant shall report to the Investigation Ofcer of the concerned Police Station on the second Monday of every month commencing from March, 2020 between 11:00 a.m. to 1:00 noon till the charge is framed;
(iii) The applicant shall inform his latest place of residence and contact number within two weeks from the date of his release on bail to the Investigating Ofcer of the concerned Police Station;
(iv) The applicant shall not tamper with the evidence or attempt to infuence or contact the complainant, witnesses or any person concerned with the case;
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(v) The State shall take all the steps to remove obscene video clip from the social media/platform.
9 The application is allowed and disposed of in the aforesaid terms.
10 Registry is directed to keep the statement/report of the lady ofcer in sealed envelope.
11 It is made clear that observations made hereinabove be construed as expression of opinion only for the purpose of granting bail and the same shall not in any way infuence the trial in other proceedings.
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