Bombay High Court
Omkar Abasaheb Gaikwad vs The State Of Maharashtra on 25 November, 2020
Author: Bharati Dangre
Bench: Bharati Dangre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
ANTICIPATORY BAIL APPLICATION ST. NO.4987 OF 2020
Omkar Abasaheb Gaikwad .. Applicant
versus
The State of Maharashtra .. Respondent
...
Mr. Shailesh S. Kharat for the applicant.
Mr. S. V. Gavand, APP for the State.
CORAM: SMT. BHARATI DANGRE, J.
DATED : 25th NOVEMBER 2020
P.C:-
1. The applicant is apprehending arrest in CR No.
1296/2020 registered with Chaturshringi Police Station, Pune.
The FIR is lodged on 20th October 2020 by the informant aged
20 years.
2. The informant alleged that on the date of the incident i.e.
on 19th October 2020, while she was in her house, the applicant
alongwith his wife, one Mandar and another person entered in
their house and started assaulting her parents. They also
uttered that they will not leave the shop and on the other hand
would register offences. It is then alleged that some physical
assault took place in which the applicant has alleged to have
tore the clothes worn by her and touched her chest
inappropriately. Similarly, it is alleged that he also touched
chest and private part of her younger sister, aged 17 years and
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abused them. It is this complaint which has resulted into the
registration of CR in which the applicant is arraigned as an
accused.
3. The said CR has preceding background.. A leave and
license agreement came to be executed between the applicant
as the licensee and the father of the complainant as the licensor
in respect of non residential shop. The agreement was
executed by which the licensee granted irrevocable leave and
license agreement in favour of the licensee i.e. the applicant to
occupy the premises without creating any tenancy rights or any
other right, title or interest in favour of licensee from the
months commencing from 1st August 2020 and came to an end
on 30th April 2023. The licensee was obliged to pay the licensor
the license fee as agreed in the agreement and it was to be paid
within first 5 days of the concerned months of leave and
license.
4. On the basis of the documents placed on record, it
appears that some dispute arose between the parties and on
24th September 2020 a notice was received by the applicant for
cancellation of leave and license agreement executed between
the parties. This notice was forwarded through the counsel
alleging that the applicant was using the shop premises for
other business activities without permission of licensor and it
was in clear violation of the terms of the agreement. The
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agreement executed was therefore revoked with immediate
effect and he was asked to vacate the premises. This notice was
received by the applicant through his counsel. The allegations
alleged in the notice are denied and it is replied that the shop is
being used for selling vegetables and fruits. It is also stated that
the agreement contain a locking period of 18 months from 28 th
July 2019 till 1st January 2020 and therefore, there was no
violation of terms of the agreement. The payment as per the
agreement was due and an attempt was made by seeking the
bank details so that the amount can be deposited in the bank
account and this was done by notice dated 12th October 2020.
5. It is on the backdrop of these events the present FIR will
have to be perused. It is pertinent to note that on 21 st October
2020 the wife of the applicant also lodged a complaint which
came to be registered as CR No. 1299/2020, wherein she
alleged that the father of the complainant had misappropriately
touched her by entering into her house alongwith his wife,
complainant and her sister on 19th October 2020. The alleged
FIR therefore implicated the informant, her parents and her
sister and resulted in the registration of offences under Sections
354, 504, 506, 34 of the IPC.
6. Against the present applicant, the offences punishable
under Sections 354, 354B, 452, 504, 506 read with Section 34
of the IPC and Sections 7 and 8 of the POCSO Act has been
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invoked and applied. If the FIR is read in the backdrop of the
transaction between the informant's family and applicant's
family, the discord appear to have ensued between two families
on account of leave and license agreement. It is alleged by the
complainant that her clothes were ripped off and she was
inappropriately touched by the applicant and also her sister,
who is aged 17 years. The complainant is aged 20 years and,
therefore, the provisions of Section 7 under the POCSO Act
cannot be invoked as regards her version. So far as her sister,
who is aged 17 years is concerned, Sections 7 and 8 of the
POCSO Act has been invoked and applied. It is alleged in the
complaint that the applicant has assaulted her sister and also
touched her private parts inappropriately. It is pertainant to
note that under Section 7 of the POCSO Act, whoever, with
sexual intent touches the the private part of the child or makes
the child touch the private part 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.
7. Considering the allegations levelled against the applicant,
as against the younger sister of the complainant is concerned,
he is alleged to have assaulted her and during this course he
touched her chest and private part and made her fell on the
ground. Prima facie the offence under Section 7 and the
punishment under Section 8 of the POCSO Act would not be
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attracted since unless and until the sexual intent is specifically
proved. This is a matter of trial since FIR do not make out any
sexual intent. As far as Section 354, 354A and 354B is
concerned, which can be invoked for the act attributed to the
applicant qua the informant and her sister is concerned, the
offence is punishable with Imprisonment which may extend to
7 years in case of Section 354B.
Prima facie, in absence of the sexual intent, being
exhibited by the applicant and in the backdrop of the
agreement which possibly is a point of discord between the
parties, the applicant is entitled for protection in anticipation of
his arrest. Hence, the following order :-
ORDER
a) Application is allowed. b) In the event of his arrest, the applicant Omkar Abasaheb
Gaikwad in connection with C.R.No. 1296/2020 registered with Chaturshringi Police Station, Pune 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.
c) The applicant shall report to the concerned police station once in a week as directed by the Investing Officer.
d) He shall not make any attempt to pressurize the informant or the victim girl.
e) He shall report to the concerned police station as and when called for.
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f) 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.
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