Bombay High Court
Prashant ( Kalu) Khagen Bishwas vs State Of Mah. Thr P.So. Ashti, ... on 12 June, 2019
Author: Manish Pitale
Bench: Manish Pitale
ba381.2019.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (BA) NO. 381 OF 2019
Prashant (Kalu) Khagen Bishwas
-Vs.-
State of Maharashtra, thru. P.S. Ashti, Tah. Charmorshi, Distt. Gadchiroli
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders.
or directions and Registrar's orders.
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Mr R. M. Tahaliyani and Mr J. S. Chilotra, counsel for the
applicant.
Mr J. Y. Ghurde, APP for the State.
CORAM : MANISH PITALE, J.
DATE : 12.06.2019.
The applicant herein has approached this Court for grant of bail in respect of the offences, with which he has been charged as per FIR dated 31/12/2018. The case against the applicant is that he allegedly kidnapped and raped a minor girl i.e. the daughter of the complainant. Initially, the FIR was registered for offence punishable under section 363 of the Indian Penal Code 1860, but later, on the statement of the prosecutrix being recorded, the offences under Section 376 of the Indian Penal Code, 1860 and the provisions of the Protection of Children from Sexual Offences Act, 2012 were also added.
2] The case against the applicant in brief is that the complainant found his daughter missing since 22/12/2018 and he eventually reported the matter to the Police leading to registration of FIR dated 31/12/2018 against the applicant. The material on *Namrata ::: Uploaded on - 13/06/2019 ::: Downloaded on - 14/06/2019 02:57:38 ::: ba381.2019.odt 2/5 record shows that there has been a backdrop to the said registration of FIR in the sense that even as per the prosecutrix herein, she had eloped with the applicant on an earlier occasion and they had gone to the State of Andhra Pradesh but, they had returned back to their place of residence.
3] On the basis of the FIR registered against the applicant, investigation was undertaken. In fact, the applicant alongwith the prosecutrix were finally apprehended on 16/01/2019 and the applicant was arrested. He has been behind the bars since then.
4] The investigation undertaken in pursuance of registration of the aforesaid FIR is complete with the charge sheet was filed in the month of March 2019. A perusal of the statement of the prosecutrix, particularly the statement given by her to the Doctor during her medical examination shows that even according to her, she had willingly gone with the applicant, as they were in love with each other and that they had travelled to city of Mathura, where they got married. It is also stated by the prosecutrix before the Doctor that when she had eloped with the applicant on the earlier occasion and gone to the State of Andhra Pradesh, they had sexual intercourse. Therefore, it is not surprising that the medical record shows the fact that there had been sexual intercourse with the prosecutrix.
5] The material on record shows that the investigation is complete and that the charge sheet has *Namrata ::: Uploaded on - 13/06/2019 ::: Downloaded on - 14/06/2019 02:57:38 ::: ba381.2019.odt 3/5 also been filed. The material also shows that this appears to be a case of the prosecutrix and the applicant having love affair and leaving their place of residence in order to get married. Although, it cannot be denied that if the prosecutirx is found to be a minor in the present case it could certainly be a case of statutory rape but, at present, this court is dealing with the question as to whether the applicant deserves to be enlarged on bail, in view of the material that has come on record, particularly the statement made by the prosecutrix.
6] In view of the facts of the present case, reliance placed by the learned counsel appearing for the applicant on the judgment of this Court in the case of Sunil Mahadev Patil .v/s. The State of Maharashtra reported in 2016 ALL MR(Cri.)1712, appears to be appropriate. In the said case, while considering the question of grant of bail to the accused in similar circumstances where a minor girl had eloped with the accused as they were in love with each other, this court observed as follows:
"12. The overall consideration while deciding such applications can be summed up as-
(i) What is the age of prosecutrix, who is minor.
(ii) Whether the act is violent or not.
(iii) Whether there are antecedents or not.
(iv) Whether the offender is capable of repeating the Act or not.
(v) Whether there is likelihood of threats or intimidation, if at all the boy is released.
(vi) Whether any chance of tampering with the material witnesses when their statements are recorded.
(vii) It is also to be taken into account in such *Namrata ::: Uploaded on - 13/06/2019 ::: Downloaded on - 14/06/2019 02:57:38 ::: ba381.2019.odt 4/5 cases that a boy in his early 20's deserves to get employment and to plan stabilize and secure his future.
13. In the present case, the prosecutrix is 15 years old and the accused is 20 years old. It appears from the record, statement of the prosecutrix and witnesses that they were in love with each other, so they eloped and went to the temple. There they garlanded each other and according to them they performed marriage and thereafter they started residing together in the house of their relative. In between prosecutrix called her distant aunt and requested her to make arrangement of some money and she disclosed that she is married and wants to stay with applicant/accused. In this case there are many mitigating factors. Under such circumstances, I am inclined to grant bail to the applicant/accused on the following terms and conditions."
7) The material on record in the present case clearly shows that a similar approach could be adopted in the present case and that the applicant deserves to be granted bail on specific conditions.
8] Accordingly, the present application is allowed and the applicant is directed to be released on bail on the following conditions.
(a) The applicant shall furnish PR bond of Rs.25,000/- and surety in the like amount.
(b) The applicant shall attend the proceeding before the trial Court on each and every date.
(c) The applicant shall not abscond and he shall not pressurize witnesses in any manner.
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(d) The applicant shall not leave the jurisdiction of the trial Court without permission of the Court.
The application is disposed of in the above terms.
JUDGE *Namrata ::: Uploaded on - 13/06/2019 ::: Downloaded on - 14/06/2019 02:57:38 :::