Bombay High Court
Mahesh @ Rahul Balkrishna Gorade vs The State Of Maharashtra on 30 April, 2021
Bench: S.S. Jadhav
25..bast.4506.20.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION ST. NO. 4506 OF 2020
Mr. Mahesh @ Rahul Balkrishna Gorade. ... Applicant.
V/s.
State of Maharashtra. ... Respondent.
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Mr. Shailesh S. Kharat, advocate for applicant.
Ms. P.P. Shinde, APP for State.
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CORAM : SMT. SADHANA S. JADHAV.
DATE : APRIL 30, 2021.
(Through Video Conferencing)
P.C.
1 Heard the learned Counsel for the applicant and the
learned APP for State.
2 This is an application under section 439 of the Code of
Criminal Procedure, 1973. The applicant herein is arrested on
3/9/2019 in Crime No. 297 of 2019 registered at Khed Police Station
for offence punishable under section 363, 376 of the Indian Penal
Code. Investigation is completed and charge-sheet is filed.
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3 On 28/8/2019 Rahul Jachak lodged a report at the police
station alleging therein that his daughter Ms. X aged about 16 years
and 10 months was studying in 12 th Standard in Hutatma Rajguru
College. On 27/8/2019 his daughter Ms. X had not returned home.
An enquiry was made with all relatives and her friends. Her cellphone
was switched off and therefore, he suspected that his daughter Ms. X
was abducted by some unknown person. Crime No. 297/2019 was
registered for offence punishable under section 363 of the Indian
Penal Code against unknown person. On 28/8/2019 the statement of
mother of Ms. X was recorded and she had disclosed that her daughter
had called up from cellphone of the applicant and informed that she
cannot return home on that day. However, she had not disclosed her
whereabouts.
4 On 2/9/2019 she had returned home. Her statement was
recorded on the same day. She has stated that she was acquainted
with the applicant. On 26/8/2019 she had received a phone call from
the applicant asking her to come to Bhosari, Pune as he wants to take
her for a drive. She had obliged. At Bhosari he had forced her to
board his Swift car and thereafter, he had taken her to Pimpri
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Chinchwad. She wanted to return home. However, he had snatched
her cellphone. They had gone to Bird Valley park and they had slept in
the parking. On 27/8/2019 they had gone to Solapur. They had
travelled to Ahmednagar. He had ravished her in the car. Then they
had gone to Parali-Vaijnath. On the way, he had sold her cellphone at
Dhamangav. He had also sold his own phone. On their return
journey, they had come to Mumbai in Sleeper Coach and then went to
Kolhapur. On 1/9/2019 he had allowed her to return home.
5 Learned Counsel for the applicant has placed on record
photographs of the applicant with Ms. X, which clearly indicates that
they were in love for quite some time. Learned Counsel has also
placed on record almost 96 pages of the transcript of the voice call
recording between applicant and Ms. X, which clearly shows that she
was chatting with the applicant practically everyday and that they had
actually decided to leave house together to get married in future after
she attains majority. It is true that the consent of a minor cannot be
taken into consideration. However, from the transcript of the voice
call, it appears that she had in fact, attained the age of understanding
before she attained majority.
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6 Implicit reliance can be placed on the Judgment in the case
of S. Varadrajan v/s. State of Madras (1965 SC 942), wherein the
Hon'ble Apex Court held as follows :
"It must, however, be borne in mind that there is a
distinction between "taking" and allowing a minor to
accompany a person. The two expressions are not
synonymous though we would like to guard ourselves from
laying down that in no conceivable circumstance can the
two be regarded as meaning the same thing for the
purposes of s. 361 of the Indian Penal Code. We would
limit ourselves to a case like the present where the minor
alleged to have been taken by the accused person left her
father's protection knowing and having capacity to know
the full import of what she was doing voluntarily joins the
accused person. In such a case we do not think that the
accused can be said to have taken her away from the
keeping of her lawful guardian. Something more has to be
shown in a case of this kind and that is some kind of
inducement held out by the accused person or an active
participation by him in the formation of the intention of the
minor to leave the house of the guardian."
7 In view of the above, prima facie, the applicant deserves
enlargement on bail. Hence, following order is passed :
ORDER
(i) The application is allowed.
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(ii) The applicant be enlarged on bail on furnishing P.R. Bond
in the sum of Rs. 25,000/- with one or more solvent sureties in the like
amount.
(iii) The application is disposed of accordingly.
(SMT. SADHANA S. JADHAV, J)
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