Bombay High Court
Pratik Pravin Sathe vs The State Of Maharashtra And Another on 2 April, 2024
2024:BHC-AUG:7811
288.2024BA
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
908 BAIL APPLICATION NO. 288 OF 2024
Pratik Pravin Sathe
..APPLICANT
-VERUS-
1. The State of Maharashtra
2. XYZ
..RESPONDENTS
...
Advocate for Applicant : Mr. Karale Patil Sattyajeet S.
APP for Respondent/State : Mr.M.K. Goyanka
Advocate for Respondent no.2 : Ms.Neeta Mirajkar(appointed)
.....
CORAM : SANJAY A. DESHMUKH, J.
DATED : 2nd APRIL, 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.467 of 2023
registered with Supa Police Station, Dist. Ahmedangar, for the
offences punishable under sections 376(3), 354-D(2), 328 of the
Indian Penal Code, 1860 (For short, "IPC") and sections 4, 8 and 12
of the Prevention of Children from Sexual Offences Act, 2012 (For
short, "the POCSO Act").
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2. Informant-17 years old girl averred in the report that she
was residing in Ahmednagar city in a rented room for her education.
On 02.04.2023, there was birthday of her friend, therefore, she came
to Punewadi for attending it. After 2-3 days of birthday sister of her
friend made phone call to her and told her that the applicant is willing
to develop friendship with her. She flatly refused that proposal and
told her that she is concentrating on her study. Thereafter, she cut
the phone call of this applicant. The applicant was talking from the
same phone by conference call. Thereafter she got phone call from
unknown mobile phone no.7588975817. When she asked as to who
he is, he replied that he was the applicant. Again he put proposal
then she switched off phone and it was kept in the blacklist. 15 days
thereafter, again she got phone call from mobile phone
no.9699041469. That person told her that he is Vivek Rathod. He is a
friend of applicant. He told that the applicant has consumed poison.
He questioned her as to what is difficulty to her to accept his
friendship and told that because of her, his life is spoiling. He again
requested her to accept the friendship of the applicant and told her to
remove his phone number from blacklist, otherwise, he will die. The
informant was frightened. She removed his phone number from
blacklist. On 2nd day, she got phone call of this applicant. That time
he told her that he has to develop friendship with her.
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3. The applicant was frequently making phone call to her
but she was not talking more with him. When applicant tried to call in
order to convince her frequently, she blacklisted his phone number.
Thereafter, after completion of her examination in the summer
vacation, she went to Wagholi to stay with her maternal uncle. In
July, 2023, the informant joined the college. She was residing in the
rented room at Ahmednagar. She got phone call from unknown
phone. That person requested her to unblock the mobile phone
number of the applicant. She felt that the applicant might have
changed his attitude and she unblocked mobile phone number of
applicant.
4. In the month of August, 2023 at about 1.30 p.m. when
the informant was proceeding to her room, the applicant came to her
with Ertiga Car. That time one unknown person was with him. The
applicant requested her to come with him outside. She refused but
the applicant was not ready to go outside of that room, therefore, she
went to convince him to go from that area. Thereafter, the applicant
requested her to come for lunch. Therefore, the informant along with
her friend Rutuja become ready to go with him. The applicant took
them to Chandbibi Mahal hotel. Thereafter that unknown person
Vivek Rathod took some group photographs of them. Thereafter,
after 6-7 days the applicant started to blackmail her and said that
from the group photographs snapped at Chandbibi Mahal, he has
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created some photographs of the informant and him. He sent those
photographs to her and threatened that he will send those
photographs to her father and will viral it. He went to medical shop of
father of informant. Informant was not responding him. However, he
was frequently calling her and threatening her. Due to those threats
informant gave consent to talk with her. Thereafter the applicant was
calling her frequently for visit. He used to come to her room
frequently and used to close the door.
5. On 24.09.2024, at about 10.00 a.m., informant was
proceeding to her native place, that time the applicant made phone
call to her and requested her to come at stop at Supa. She stopped
at Supa S.T. stand. The applicant came there with Ertiga Car at
about 11.30 a.m. He brought Pulao (rice) with him. When both were
proceeding by a Car towards Parner, he took her to windmill near
Shahjanpur. She ate that Pulao. After eating that Pulao, she felt
dizziness. The applicant committed forcible sexual intercourse with
her in a Car. Because of dizziness, she became unconscious and
due to which she was unable to resist him. When she regained
consciousness on 2nd day of the incident, the applicant dropped her
to her room. That time informant asked her, as to how she suffered
dizziness. The applicant told her that the applicant has mixed some
stupefying substance in that Pulao. Therefore, she became
unconscious and thereafter, the applicant has committed sexual
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intercourse with her. Thereafter, also the applicant was trying to have
sexual intercourse with her. Informant was refusing for it. However,
he was continuously trying to visit her. Therefore, the informant
decided to leave that room. She told her parents that she is leaving
that room. When she came to her parents at the time of Navratri
holidays, she told that incident of sexual assault to her parents and
about leaving of that room. Her parents met the applicant and told
him not to meet informant and not to keep any relationship with her.
Thereafter he deleted photographs from the computer of his Photo
Studio and his mobile phone. Thereafter, he did not make any phone
call to the informant. After Dasara festival, the applicant went to her
school and shown the edited photographs to her practical partner
Prem Ashok Paval and other classmates. The informant lodged the
report on 14.11.2023. The applicant was arrested on 15.11.2023.
6. The learned advocate for the applicant submitted that it
is case of love affair. He pointed out some photographs which show
that the applicant and informant were in happy mood. He further
pointed out the WhatsApp chatting and submitted that once the
informant sent message that even if there is strong opposition then
also they will marry with each other. According to the applicant, it is a
case of pure love and now it is alleged that the applicant harassed
her. The learned advocate for the applicant further submitted that the
applicant had no criminal antecedents. There is no medical evidence
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of alleged sexual assault. The applicant has roots in the society. He
will not flee away from the trial. Trial will take long period.
7. The learned advocate for the applicant further pointed
out that the informant requested the applicant to deposit Rs.11,000/-
and Rs.4,000/-, which appears from the chatting dated 12.11.2023.
The learned advocate for the applicant submitted that the applicant
belongs to Scheduled Caste and the informant belongs to open
category, and therefore, there was opposition to their marriage and
that is the reason for lodging the report. The learned advocate for
the applicant further submitted that it is surprising to note that a
report was not lodged by the parents of the informant when she was
missing for two days. The applicant is 19 years old and he has no
criminal antecedents, therefore, the learned advocate for the
applicant lastly prayed to allow the application.
8. The learned advocate for the applicant is relying upon
the authority in the case of Imran Iqbal Shaikh Vs. The State of
Maharashtra and another in Bail Application No.997 of 2022,
decided on 26th April, 2023. Para no.4 of it reads as under :-
"4. It is true that the victim is a child within the meaning of section
2(d) of the POCSO Act. The Applicant was also a young boy of 22
years of age at the time of the incident. The statement of the first
informant prima facie indicates that the relationship was
consensual. It needs to be noted that the POCSO Act has been
enacted to protect children from offences of sexual assault, sexual
harassment etc., and contains stringent penal provisions as to
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safe guard the interest and the well being of the children. The
object is certainly not to punish minors in romantic or consensual
relationship and brand them as criminals."
9. The learned advocate for the applicant also relying upon
the authority in the case of Vishal S/o Omprakash Verma Vs. The
State of Maharashtra and another reported in 2021 All MR (Cri)
187. The paras 11 to 13 of it read as under :-
"11. This Court in the case of Sunil Mahadev Patil vs. State of
Maharashtra (supra) has observed thus: "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 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
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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 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 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. 12. The overall considerations while deciding such
applications can be summed up as- When a boy and a minor girl
are in love with each other and chose to live together without
consent of their parents, then the following factors are to be
considered: (i) What is the age of the 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
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chance of tampering with the material witnesses when their
statements are recorded. (vii) It is also to be taken into account in
such cases that a boy in his early 20's deserves to get
employment and to plan, stabilize and secure his future.
12. In the present matter, the victim is 15 years old girl, and in her
statement, she has admitted that she had love affair with the
appellant. The FIR and the statement of the respondent No.2
shows that there was a consensual relations between the
respondent No.2 and the appellant.
13. As far as, the promise of marriage is concerned, the Hon'ble
the Supreme Court of India in the case of Pramod Suryabhan
Pawar Vs. State of Maharashtra and another reported in 2019 (9)
SCC 608, has observed that the "consent" of a woman with
respect to Section 375 must involve an active and reasoned
deliberation towards the proposed act. To establish whether the
"consent" was vitiated by a "misconception of fact" arising out of
a promise to marry, two propositions must be established. The
promise of marriage must have been a false promise, given in
bad faith and with no intention of being adhered to at the time it
was given. The false promise itself must be of immediate
relevance, or bear a direct nexus to the woman's decision to
engage in the sexual act."
10. The learned advocate for the applicant is further relying
upon the authority in the case of Sunil Mahadev Patil Vs The State
of Maharashtra reported in 2016 All MR (Cri) 1712. The para 11 of
it read as under :-
"11. Today teenagers are exposed to more sex related issues
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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 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."
11. The learned APP for the respondent - State and learned
advocate for respondent no.2 strongly opposed the application and
submitted that the applicant has committed serious offence under
Special Act i.e. POSCO Act. The applicant's father is having a photo
studio and therefore, he has edited some photographs of the
applicant and informant. It is forceful love. By using the said edited
photographs, he was giving threats to the informant. He has
committed rape on the informant, who is child. Her consent is not
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legal consent. Therefore, considering the serious nature of the crime,
it is lastly prayed to reject the application.
12. Perused the charge-sheet, particularly, the report and
the statements of the witnesses. It is not disputed that the informant
is 17 years old and her birth date is 25.05.2006. Therefore, as per
the POCSO Act and Section 90 of the IPC, her consent for alleged
sexual intercourse is not a consent in the eyes of law. The conduct of
the applicant from the report and the statements of the witnesses
show that the applicant forced her for love. The informant is a child
as per POCSO Act. Though there is delay for lodging the report, it is
explained that the parents of informant tried to convince the
applicant. There are presumptions against the applicant under
sections 28 and 29 of the POCSO Act. The applicant produced
numerous photographs and whatsapp chats. Those are produced to
show that there was love affair. But the learned APP and learned
advocate for respondent no.2 submitted that the applicant's father
runs photo studio and the applicant must have developed it as
alleged by the informant.
13. To love is not an offence, however, overt act after love is
certainly an offence. Overt act of the applicant is specifically stated
by the informant in her report that he showed those photos to her
friends and defamed her. It is alleged by the informant that the
applicant has mixed the stupefying substance in the Pulao and it was
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given to her for eating prior to committing of the sexual assault and
due to which she felt dizziness. Thereafter that aggravated sexual
assault was committed in a car. After second day of incident, she
regained consciousness. She did not lodge report immediately. In
such a fact situation the medical evidence cannot be expected. The
report was not lodged immediately, however, it is admitted fact that
victim is a child and in Indian culture, Indian girls and womans are
not easily proceeding to file a report about such incident due to fear
of defamation and mental trauma etc. It is a matter of evidence and
at this stage, meticulous consideration of evidence is not expected.
14. Even if there has been an affair a woman or a girl child
may stop the love affair if temper of both are not adjustable. It is
choice of each one. However, the applicant's conduct shows that he
wanted to continue that love affair even after he was convinced by
the parents of informant to not to harass her. Having earlier love is
not a permanent licence to harass such child frequently only because
she loved earlier. A girl or child like applicant has right to refuse to
continue it. The applicant showed the photographs to the friends of
informant. This act of the applicant is illegal, serious criminal overt
act. It is kind of blackmail. This shows that he tried to defame her on
pretext of love showing her photographs to other shows that he want
to compel her to love with him forever. Thus it is forcible love, since
beginning.
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15. The learned advocate for the applicant also submitted
that after the sexual assault a report was not lodged by the parents of
the informant when she was missing for two days. But fact is that she
was not residing with them. However, it is a matter of evidence and
the facts of case show that the informant was not residing with her
parents. They were not knowing the facts. Further the conduct of
parents shows that they tried to convince the applicant to not to meet
the informant. But thereafter, the applicant tried to contact her, and
therefore, the report was lodged. All these facts if considered along
with the object of POCSO Act, the ratio laid down in the above
authorities (cited supra) by the applicant cannot be made applicable
to this case as the facts are different and it was not real love but
forcible love. Considering all these aspects, the argument of the
learned advocate for the applicant is not acceptable. If the applicant
is released on bail, there is possibility of pressurizing the prosecution
witnesses. Considering serious nature of the crime and in view of the
law laid down by the Hon'ble Apex Court in the cases of Deepak
Yadav Vs. State of Uttar Pradesh and another, (2022) 8 SCC
559Shahzad Hasan Khan Vs. Ishtiaq Hasan Khan and another,
(1987) 2 SCC 684, that applicant is involved in the serious crime.
The application deserves to be rejected.
16. It is also alleged that the applicant's father is having
photo studio, therefore, easily those photographs and WhatsApp
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chatting was developed. It is matter of evidence. As far as fabricated
photographs and alleged fabricated WhatsApp chat produced before
this Court are concerned, it is produced before this Court. The family
members of this applicant are having custody of those photographs
and chats. There is fear of showing those to others again. Therefore,
it would be proper to prohibit them from showing or using those
photographs and whatsapp chats except in defence in the Court.
Investigating Officer may consider this aspect in legal sense and
proceed further for use of the same as per the provisions of law. The
application deserves to be rejected. Hence the following order:-
ORDER
1. Application is rejected.
2. The fees of Ms.Neeta Mirajkar, the learned advocate appointed to represent cause of respondent no.2 be paid through the High Court Legal Services Sub-Committee, Aurangabad as per the schedule and rules.
(SANJAY A. DESHMUKH, J.) sga