Bombay High Court
Anilkumar L. Gitte vs The State Of Maharashtra And Anr on 5 April, 2021
Bench: S.S. Shinde, Manish Pitale
This Order is modified/corrected by Speaking to Minutes Order dated 09/04/2021
cri.apeal-185.21.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.185 OF 2021
ABC : Appellant.
Versus
1] State of Maharashtra
2] XYZ. : Respondents.
Mr. Avinash B Avhad for the Appellant.
Ms. Priyanka Chavan, appointed, for Respondent No.2.
Smt. A S Pai, APP for the Respondent/State.
CORAM : S. S. SHINDE,
MANISH PITALE, JJ
Reserved on : 23rd March 2021
Pronounced on : 05th April 2021
P. C.
1 At the outset it is required to be noted that since the allegations
against the appellant are in respect of the alleged sexual assault, the identity of
the appellant and respondent no.2 needs to be concealed, and they are referred
to "ABC" and "XYZ". The Registry is directed to maintain the record
accordingly.
2 By this Criminal Appeal, the Appellant seeks the following relief:-
(a) That the present Appeal be allowed and the present
Appellant be released on Bail in connection with the F.I.R.
No.0292 with the Vishrambaug Police Station, Pune for
the offense punishable under Sections 376, 354, 504,
323, 506(2) of the Indian Penal Code and u/s. 3(2)9va)
and 3(2)(v) of the Scheduled Caste and Scheduled Tribe
(Prevention of Atrocities) Act, 1989.
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3 The facts leading to filing of this Criminal Appeal can, in brief, be
stated thus :-
4 The Respondent No.2 herein is the original Complainant. She is a
medical practitioner having degree in Bachelor of Homeopathic Medicine and
Surgery (BHMS). The first informant is originally from Nanded, however, for
preparing Maharashtra Public Service Commission (MPSC) examination she
has been residing in Pune since last 10 years. In the month of June 2016 she
met the present Appellant who was also studying for competitive examination.
Thereafter the complainant and the appellant used to jointly study for The Civil
Service Aptitude Test (CSAT) in the tuition of Mr. Vatamda, at Navi Peth behind
Behere Class. Thereafter they became good friends. One day the appellant told
the informant that he likes her, upon which, the informant replied that if he is
going to marry her, she would think about him. At that time, the appellant
assured her that he would marry the informant. Based on assurance given by
the appellant, the informant and accused were frequently meeting. It is the
allegation of the informant that in December 2016 the Appellant called the
complainant at his residence i.e. 1489, Khamkar Wada, Near Renuka Swaroop
Girls Hostel and the appellant committed sexual intercourse with her. It is the
allegation of the informant that since then the appellant has been continuously
deceiving her on the false promise of marriage and on such false promise he
had physical relation with her from time to time, due to which the informant
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had become pregnant, and after becoming pregnant, she was insisting the
appellant to marry her, however, the appellant kept her avoiding and told her
that first both of them would make their career and then only think about their
marriage. It is the case of the informant that believing the said assurance from
the appellant, she took the medicines which caused her abortion. It is alleged
that the appellant, on the false promise of marriage, kept physical relations
with the informant from time to time till March 2020. Thereafter when the
informant asked for marriage, he avoided her, and later on told her that, he
cannot marry her as she is from different caste. Thereafter he started avoiding
her by not taking her phone calls and started quarreling with her. When she
demanded her photographs and video clips from appellant, he threatened her
that he will show said video clips and photographs to her parents and also
threatened her to kill her family members. It is further alleged by the
informant that on 27/05/2020 at about 1.30 am the appellant came to her
house and when she asked for her photographs and video clipping, the accused
abused her in filthy language and also sent abusing messages and also abused
her referring to her caste. The informant therefore went to police station and
lodged the F.I.R. No.0292 with the Vishrambaug Police Station, Pune for the
offense punishable under Sections 376, 354, 504, 323, 506(2) of the Indian
Penal Code and u/s. 3(2)9va) and 3(2)(v) of the Scheduled Caste and
Scheduled Tribe (Prevention of Atrocities) Act, 1989.
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5 On the basis of the impugned FIR lodged by the Respondent No.2,
the Appellant came to be arrested and remanded to police custody for 6 days
from 04/12/2020 to 10/12/2020, and thereafter on 10/12/2020 the appellant
was remanded to judicial custody and since then he is in Yerwada Jail, Pune.
It is submitted after completion of investigation, charge-sheet has been filed in
the said case.
6 Thereafter the appellant applied for regular bail under section 439
of the Criminal Procedure Code, which came to be rejected by the learned
Special Judge and Additional Sessions Judge, Pune vide order dated
16/01/2021. Hence this Appeal.
7 The learned counsel appearing for the appellant submits that the
the appellant and the informant were goods friends and the appellant had
never assured the complaint for marriage. He further submitted that the
physical relations between the appellant and the informant were consensual It
is also submitted that neither the Appellant has used any filthy and abusive
words against the informant nor he has any intention to insult her on her caste.
He also submitted that the appellant has not committed any offence as alleged
in the impugned FIR. The learned counsel appearing for the Appellant submits
that the Respondent No.2 - Informant has given her consent for quashing the
impugned FIR. He, therefore, prays that the appellant may be released on bail.
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8 The learned counsel appearing for the Respondent No.2 -
informant submitted that, in Writ Petition ASDB-LD-VC No.232 of 2020 filed by
the Appellant, the Respondent No.1 - informant filed her affidavit giving her
consent for quashing the FIR and charge-sheet. Therefore, the learned counsel
appearing for the Respondent No.2, on instructions submits that there is no
objection to release the Appellant herein on bail. In support of her aforesaid
submission learned counsel appearing for the Respondent No.2 - Informant
has tendered across the bar the affidavit of the Respondent No.2 filed in
Criminal Writ Petition ASDB LD VC No.232 of 2020, the same is taken on
record.
9 Heard learned counsel appearing for the Appellant, the learned
counsel appearing for the Respondent No.2 - Informant and the learned APP
appearing for the Respondent/State. With their able assistance, perused the
grounds taken in the Appeal Memo, annexures thereto, the impugned order
passed by the concerned Court, the charge-sheet and the affidavit filed by the
Respondent No.2 in the said Writ Petition No.232 of 2020.
10 We have also perused the affidavit filed by the Respondent No.2 -
informant in Writ Petition No.232 of 2020. It would be apt to reproduce
herein below the paragraphs 3 to 5 of the said affidavit of Respondent No.2 for
ready reference. The same are reproduced herein under :-
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"3 I submit that I no longer wish to pursue the said FIR and
further give my consent for quashing of the said FIR for
the aforesaid reasons.
a) I submit that the physical relations between the Petitioner
and I were consensual in nature and that the allegations
made in the said FIR arose due to a misunderstanding. I
submit that the misunderstanding and differences
betwe4en the Petitioner and me have now been
amicably resolved. We further intend to live our separate
lives without interference or contact from each other.
b) I submit that I wish to move on with my life as this
episode has caused great mental anguish to me and my
parents; my mother has even started suffering from
cardiac issues. I further intend on getting married and
therefore wish to put this behind me.
4 I submit that considering my future, and the amicable
settlement between the Petitioner and I, I no longer wish
to pursue the said FIR and therefore give my consent for
the quashing of the said FIR.
5 I submit that I have not been co-erced, forced,
intimidated or threatened by the Petitioner or any other
party to make these submissions and to withdraw the
allegations made in the said FIR, and submit that I am
doing so of my own free will."
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11 After considering the offences alleged to have been committed by
the Appellant and in the light of the judgment of the Supreme Court in the
case of Giansingh v. State of Punjab and Another 1 wherein it has held that,
the High Courts in serious offences like rape, murder, dacoity, robbery etc. shall
not quash the FIR on the basis of amicable settlement by the parties, the prayer
of the Appellant, who is the Petitioner in the said Writ Petition No.232 of 2020,
for quashing the FIR on the basis of amicable settlement between the Petitioner
and the 2nd Respondent was turned down.
12 It is pertinent to mention at this stage that the Appellant is in jail
since his arrest and the charge-sheet has been filed. There is no possibility of
appellant tampering with the prosecution witnesses and/or evidence in view of
the affidavit filed by the 2nd Respondent in the said Writ Petition No.232 of
2020. The learned counsel for the Appellant submits that the appellant is
originally from Parli Vaijnath, District Beed and the 2 nd Respondent is originally
from Nanded District, and therefore, the possibility of further repetition of
offence may not arise in future.
13 In that view of the matter, in the peculiar facts and circumstances
of the present case, the appellant deserves to be released on bail. Hence the
following order.
1 2012 (10) SCC 303
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A] The Appellant is directed to be released on regular bail in
connection with FIR No.292 registered with Vishrambaug Polie
Station Pune on his furnishing P R bond of Rs.20,000/- with one
or more sureties in the like amount to the satisfaction of the Trial
Court i.e. Special Judge and Additional Sessions Judge, Pune
B] The Appellant shall be immediately released on furnishing
personal bond of Rs.20,000/- with undertaking that he will furnish
the surety/sureties as stated in the clause (A) above within six
weeks from his release.
C] The Appellant shall attend the nearest police station once in a
week for two months and thereafter once in a fifteen days for
three months and shall file proof of such attendance to the
concerned trial court.
D] The Appellant shall attend each and every date fixed by the trial
court for framing the charge/trial as the case may be and shall not
directly or indirectly contact the 2nd Respondent - Informant and
the prosecution witnesses, as also shall not tamper with the
prosecution witnesses.
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E] The Appellant shall not send any message on whatsapp of the
Respondent No.2 - Informant and shall not try to establish any
communication with her in furture.
F] The Appellant shall furnish his correct residential address, phone/
cell numbers to the concerned trial Court as well as to the
concerned Investigating Officer.
G] In case there is any incriminating material including photographs,
whatsapp messages, messages, and/or video clips of the 2 nd
Respondent in the mobile phone of the Appellant an the letters,
documents, etc. the Appellant shall immediately
remove/delete/destroy the said incriminating material.
H] The Criminal Appeal is allowed to the aforesaid extent and,
disposed of accordingly.
[MANISH PITALE, J] [S. S. SHINDE , J]
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