Bombay High Court
Pawan Subhash Solanke vs The State Of Maharashtra And Another on 8 February, 2024
2024:BHC-AUG:2751
2237.2023BA
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
923 BAIL APPLICATION NO. 2237 OF 2023
Pawan Subhash Solanke
..APPLICANT
-VERSUS-
1. The State of Maharashtra
2. 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. (appointed
Through Legal Aid)
.....
CORAM : SANJAY A. DESHMUKH, J.
DATED : 8th FEBRUARY, 2024.
PER COURT :-
1. The applicant is seeking bail under section 439 of the
Criminal Procedure Code, 1973 (for short, "Cr.P.C."). The applicant
has been arrested in connection with crime No.340 of 2023
registered with Yawal Police Station, Bhusawal, Dist.Jalgaon, for the
offences punishable under Sections 363, 366, 376 of the Indian
Penal Code and sections 3 and 4 of the POCSO Act.
2. It is the prosecution case that the applicant taken away the
prosecutrix, the daughter of the applicant, who is 16 years and 11
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months. She is student of ITI. The applicant is resident of same
village. He took her first to Nashik and thereafter to Mumbai. They
were out of the house from 22/06/2023 to 29/06/2023. Both of them
went to Faizpur Police Station.
3. It is alleged that the applicant committed sexual intercourse
with the prosecutrix, and therefore, section 4 of the POCSO Act
along with section 376 of the Indian Penal Code were invoked
against the applicant.
4. The learned advocate for the applicant submitted that from six
months, the applicant is behind bars. He has roots in the society.
Charge-sheet is filed. Trial would take long period. He is relying
upon the authority of Sunil Madhav Patil Vs State of Maharashtra,
reported in ABC 2016 (I) 34 BOM, in which law is laid down in para
nos.9, 10 and 11 as under :-
"9. In view of the increasing offences against the
women especially of rape, the legislature and judiciary
both found it obligatory to deal these offences with severe
punishment and women can be protected if the laws are
made rigorous. Therefore, report of Justice Verma
Committee was accepted and necessary and significant
amendments were made in these two sections. A wrong
doer is to be punished, guilty is to be convicted. However,
at the stage of bail, the Court has to consider prima facie
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under what circumstances the offence is committed by the
accused. In the Criminal law, the Court cannot ignore the
intention or motive behind the act and that is an important
factor in the commission of offence so also to decide the
quantum of sentence at the end of trial, so in the case of
bail.
10. The offence of rape can be distinguished on the basis
of the intention of the accused. There are incidents of
rapes committed by gang like the case of Nirbhaya or
Maya Thagi or Mathura which cannot be forgotten by
Indian Society. So also rape committed in a savage
manner or repeatedly by a single accused. There are
some instances of rape which take place as a man wants
to satisfy his lust and animal within him overpowers his
reason. There are instances of rape where a man and a
woman both are in love with each other and get involved
into sexual relationship due to either physical or
psychological need and in such type of rape, there is no
violence which exists in other types of rape.
11. Today teenagers are exposed to more sex related
issues and lot of material is also available to them to know
the sexual relationship between a man and a woman.
Because of their impressionable age, girls and boys both
may tend to get provoked and there can be a curious and
very compelling demand of the body to get into such kind
of relationship. Sexual urge differs from person to person
and there cannot be any mathematical formula in respect
of sexual behavioral pattern of teenagers, as biologically
whenever the child turns into puberty, the child starts
understanding his or her sexual needs. The nature of
response depends on the upbringing, peer pressure, how
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civilized the environment is etc. Sex requires proper
physical and emotional preparation, as it results in many
physical and emotional consequences. This is all
considered as a sexual maturation. Therefore, some sects
with view to regularize sexual behaviour of the community
have acknowledged this biological factor and therefore,
the early age marriages are performed in some religions
or communities. Taking into consideration this social and
biological factors, the law makers have considered the
age of 15 as a age of consent when the marriage is
performed. Taking into consideration this background, the
trial Judge has to pass an order of bail in such cases".
5. The learned advocate also relying upon the authority of this
Court in the case of Manohar Balaji Kadam Vs. The State of
Maharashtra and another in Bail Application No.2045 of 2023,
dated 5th January, 2024 and in which in para no.5, it is held as
under:-
"5. Perused the charge-sheet. The contradictory
statements of the prosecutirx, recorded under Section
161 and 164 of Cr.P.C. Learned advocate for the
applicant pointed out that the prosecutrix age proof i.e.
birth certificate is not available and therefore, school
leaving certificate is filed on record. The statement of
landlord of the applicant and prosecutrix shows that the
applicant and prosecutrix stayed in his room as husband
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and wife. The prosecutrix is having the age of
understanding and the consequences. Considering the
different set of facts, the authority in the case of Satish
Kumar 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 the
prosecutrix. In her statement dated 30.06.2023, she has stated that
the prosecutrix insisted him to run away and accordingly her
statement was recorded before the Woman and Child Welfare
Committee, Jalgaon. Initially, the prosecutrix was not willing to go
with her parents but she stayed there only for one night. Thereafter,
she was brought to her parents house. Thereafter her version was
changed and her statement was recorded before the Police as well
as the learned Magistrate under section 164 of the Criminal
Procedure Code, wherein she alleged that the applicant taken away
her.
7. Criminal antecedents of the applicant is pointed out that he
was an accused in Crime No.463 of 2022 registered under sections
279, 379, 337, 427 etc of the Indian Penal Code etc., for commission
of theft of sand. The learned advocate for respondent no.2, therefore,
objected to allow this application.
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8. The learned APP has also strongly opposed the application by
contending 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 and
statements of the prosecutrix recorded immediately after the incident
by Woman and Child Welfare Committee, Jalgaon. The prosecutrix
has stated that she insisted the applicant to run away. Considering
the fact that the applicant has roots in the society, he will not flee
away from the trial, trial will take long period and in view of the law
laid down in the above authorities Sunil Patil and Manohar Kadam
(cited supra), the application therefore, deserves to be allowed on
certain conditions. Hence the following order :-
ORDER
I. Application is allowed.
II. The applicant in connection with crime No.340 of 2023 registered with Yawal Police Station, Bhusawal, Dist.Jalgaon, for the offences punishable under Sections 363, 366, 376 of the Indian Penal Code and sections 3 and 4 of the POCSO Act be 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 prosecution witnesses and shall not tamper with the prosecution evidence in any manner.
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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 appointed to represent the cause of respondent no.2 be paid through the High Court Legal Services Sub-Committee, Aurangabad as per rules.
(SANJAY A. DESHMUKH, J.) sga