Bombay High Court
Suresh Mohanlal Jain vs The State Of Maharashtra on 21 December, 2021
Bench: N. J. Jamadar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
ANTICIPATORY BAIL APPLICATION NO. 2471 OF 2019
Suresh Mohanlal Jain ...Applicant
Versus
The State Of Maharashtra ...Respondent
WITH
INTERIM APPLICATION NO.217 OF 2020
IN
ANTICIPATORY BAIL APPLICATION NO. 2471 OF 2019
Miss. Anita Ghanashyam Shrivastav Intervenor/
First Informant
IN THE MATTER BETWEEN :-
Suresh Mohanlal Jain ...Applicant
Versus
The State Of Maharashtra ...Respondent
Mr. Anish A. Desai a/w G. Lobo, C. Sawant, Advocate for the
Applicant in ABA.
Ms. Prajakta N. Deshmukh, Advocate for the applicant in
Interim Application.
Ms. Pallavi Dabholkar, APP for the Respondent - State.
CORAM : N. J. JAMADAR, J.
RESERVED ON : 4th DECEMBER, 2021.
PRONOUNCED ON : 21st DECEMBER, 2021.
PC :
1. The applicant, who has been arraigned for the
offences punishable under Sections 376 and 420 of the Indian
Penal Code, 1860 ("the Penal Code") in C.R. No.96 of 2019
Digitally
signed by
SAJAKALI
SAJAKALI LIYAKAT
LIYAKAT JAMADAR
Sajakali Jamadar 1 of 18
JAMADAR Date:
2021.12.21
18:22:39
+0530
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registered with Malbar Hill Police Station, Mumbai, has
preferred this application for pre-arrest bail.
2. The indictment against the applicant runs as
under :-
The prosecutrix and the applicant studied together at Dr.
Babasaheb Ambedkar Municipal School, Worli, Mumbai. In the
year - 2006, by a chance call on the cellphone of the
prosecutrix, the friendship revived. As the prosecutrix and the
applicant frequently met, the friendship blossomed into a
romantic relationship. They met at Priyadarshini Park Garden
and the sea shore. The prosecutrix alleged that, for the first
time in the year 2007, the applicant had physical relations with
her while she was 19 year old, on the promise of marriage.
Thereafter, the applicant had physical relations with her on
multiple occasions, on the promise of marriage.
In the year - 2009, the prosecutrix started independent
beautician's business. She earned sumptuous profit. When the
prosecutrix inquired with the applicant about marriage, the
applicant represented to her that he wished to start a new
business and demanded a sum of Rs.45.00 Lakhs for the same
and promised to marry her after the commencement of the said
business. The prosecutrix claimed to have arranged the said
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amount and paid it to the applicant.
The prosecutrix further alleged that, she and the
applicant visited Surat, Mount Abu and Delhi and the applicant
had forcible physical relations with her. The prosecutrix
further claimed that the applicant made her to part with a total
sum of Rs.1,12,00,000/- by making her to believe that he would
solemnize marriage with her. She was made to avail loan of
Rs.47 Lakhs from Bank of India and pay the amount in cash to
the applicant.
In the month of June - 2017, the applicant represented to
the prosecutrix that he was leaving for Delhi to run a business
thereat and had decided not to keep in touch with anybody for
one year and promised to marry the prosecutrix after the said
period of one year and settle at Delhi with her and that he would
also repay the loan which he had taken from the prosecutrix, till
then.
In the month of July - 2018, when the officers of the Bank
visited the prosecutrix's house to pursue the recovery of the
loan amount, the prosecutrix contacted sister of the applicant,
who apprised the prosecutrix that in the month of July-2017
itself, the applicant had solemnized marriage with another lady
and was residing with the family at Delhi. Realizing the
deception practiced by the applicant, the prosecutrix
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approached Malbar Hill Police Station, Mumbai and lodged the
report leading to registration of C.R. No.59 of 2019.
3. The applicant preferred application for anticipatory
bail before the Sessions Court, Greater Bombay. By an order
dated 18th November, 2019, the learned Additional Sessions
Judge was persuaded to reject the application holding that the
material on record, prima facie, indicated that the applicant,
under the false pretext of marriage, sexually harassed the
prosecutrix and also grabbed huge amount to the tune of
Rs.1,12,00,000/- and, therefore, for recovery of the said amount
and further investigation, custodial interrogation of the
applicant was warranted.
4. By an order dated 15th November, 2019, this Court
was persuaded to grant interim relief to the applicant and
direct that he be released on bail, in the event of arrest, subject
to certain conditions, opining that, prima facie, the FIR shows
that the relationship between the applicant and the prosecutrix
was consensual.
5. The prosecution has resisted the application on the
ground that, after the applicant was granted interim relief, on
29th November, 2019 two sisters of the applicant accosted and
intimidated the prosecutrix, in respect of which N.C. report was
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lodged with N. M. Joshi Marg Police Station and even the
applicant threatened and sexually harassed the applicant on
22nd December, 2020, in respect of which C.R. No.397 of 2020
came to be registered against the applicant at N.M.Joshi Marg
Police Station for the offences punishable under Sections 354-A,
and 506 of the Penal Code in which, after completion of
investigation, charge-sheet has been lodged against the
applicant.
6. It was further contended that to facilitate further
investigation, custodial interrogation of the applicant is
warranted. There is a strong possibility of tampering with
evidence and threatening the prosecutrix, in the event the
interim order is confirmed.
7. The prosecutrix has also taken out an interim
application being Interim Application No.217 of 2020 for
rejection of the prayer of pre-arrest bail.
8. I have heard Mr. Anish Desai, the learned counsel
for the applicant and Ms. Pallavi Dabholkar, the learned APP for
the state and Ms. Prajakta N. Deshmukh, the learned counsel
for the prosecutrix at length. With the assistance of the learned
counsels for the parties, I have also perused the material on
record, especially the First Information Report, the copies of the
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whats-app chats between the applicant and the prosecutrix, the
N.C. report lodged by the prosecutrix against the sisters of the
applicant and the FIR lodged by the prosecutrix against the
applicant in C.R. No.397 of 2020 at N.M.Joshi Marg Police
Station for the offences under Section 354-A, and 506 of the
Penal Code.
9. Mr. Desai, the learned counsel for the applicant
strenuously urged that, in the backdrop of the long standing
relationship between the applicant and the prosecutrix, as is
evident from the allegations in the FIR, no other inference than
that of consensual relationship is plausible. Emphasis was laid
on the fact that the relationship allegedly commenced in the
year - 2007 and lasted till the year 2017. In the light of such
long standing relationship, the allegation that the applicant had
forcible physical relations with the prosecutrix on the false
promise of marriage is simply unsustainable, urged Mr. Desai.
As regards the allegations of duping the prosecutrix to the tune
of Rs.1,12,00,000/-, Mr. Desai would urge that the allegations
are not borne out by the record. It was further submitted that
the real trigger for lodging the FIR, according to the first
informant, is the discovery of the fact that the applicant
allegedly solemnized marriage with another lady and was
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staying at Delhi. In this view of the matter, the custodial
interrogation of the applicant is not at all warranted, submitted
Mr. Desai.
10. In opposition to this, the learned APP would urge
that the allegations in the FIR are required to be read in their
entirety, and if so construed, it becomes evident that the
applicant not only sexually exploited the prosecutrix but also
financially robbed her by taking undue advantage of the
vulnerable position she found herself in, dishonestly. From this
stand point, according to learned APP, the delay is of little
significance. In any event, according to learned APP, the offence
of Section 420 of the Penal Code is ex-facie made out and the
custodial interrogation of the applicant is indispensable for
recovery of the huge amount, which the prosecutrix was
deceived to part with.
11. The learned counsel for the prosecutrix would urge
that the conduct of the applicant, after the grant of interim
protection by this Court, deserves to be taken into account. The
applicant had indulged in sexual harassment of the prosecutrix
and even threatened her out of her life. For this singular
reason, the interim relief deserves to be vacated and the
application rejected, urged the learned counsel for the
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prosecutrix.
12. I have given a careful consideration to the aforesaid
submissions. The allegations against the applicant are required
to be considered in the light of the fact that the applicant and
the prosecutrix, admittedly, shared relationship for almost ten
years. The material on record indicates that initial friendship
blossomed into romantic relationship, which further developed
into business relationship. The applicant allegedly first
exploited the prosecutrix in the year - 2007. There were
physical relations between the applicant and prosecutrix till the
year - 2017. The question which thus crops up for
consideration as to whether the consent of the prosecutrix for
the physical relations was vitiated on account of the
misconception of facts, as the prosecutrix believed the promise
of marriage allegedly given by the applicant.
13. The aforesaid question is required to be determined
in the light of the position in life of the parties, the time lag and
the attendant circumstances. The Court cannot lose sight of
the distinction between the offence of rape and consensual sex
between two adults. In the circumstances of the case, the long
standing relationship between the parties and their situation in
life renders it rather difficult to believe that the prosecutrix
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laboured under the misconception of facts for almost 10 years,
and, thus, the consent was vitiated.
14. A profitable reference in this context can be made to
the judgment of the Supreme Court in the case of Dr.
Dhruvaram Murlidhar Sonar vs. The State of Maharashtra and
Ors.1 wherein the distinction between "rape" and "consensual
sex" was expounded in the following words :-
" 20] Thus, there is a clear distinction between
rape and consensual sex. The court, in such cases,
must very carefully examine whether the
complainant had actually wanted to marry the victim
or had mala fide motives and had made a false
promise to this effect only to satisfy his lust, as the
later falls within the ambit of cheating or deception.
There is also a distinction between mere breach of a
promise and not fulfilling a false promise. If the
accused has not made the promise with the sole
intention to seduce the prosecutrix to indulge in
sexual acts, such an act would not amount to rape.
There may be a case where the prosecutrix agrees to
have sexual intercourse on account of her love and
passion for the accused and not solely on account of
the misconception created by accused, or where an
accused, on account of circumstances which he could
not have foreseen or which were beyond his control,
was unable to marry her despite having every
intention to do. Such cases must be treated
differently. If the complainant had any mala fide
intention and if he had clandestine motives, it is a
clear case of rape. The acknowledged consensual
1 AIR 2019 SUPREME COURT 327.
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physical relationship be- tween the parties would not
constitute an offence under Section 376 of the IPC."
(emphasis supplied)
15. A useful reference can also be made to the judgment
of the Supreme Court in the case of Pramod Suryabhan Pawar
vs. The State of Maharashtra and Anr.2 wherein, after reference
to the previous pronouncements, the Supreme Court
enunciated the legal position as regards the consent of woman
for sexual act under misconception of fact as under
" 18] To summarise the legal position that emerges from
the above cases, 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."
(emphasis supplied)
16. If the facts of the instance case are considered
through the prism of aforesaid pronouncements, prima facie, it
2 AIR 2019 SUPREME COURT 4010.
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would be difficult to draw an inference that the alleged false
promise of marriage was of immediate relevance or bore a
direct nexus to the prosecutrix's decision to engage in a sexual
act.
17. Moreover, the question of consent under
misconception of fact cannot be determined bereft of the
proximity of allegations to the time of the occurrence. To put it
in other words, misconception of fact to vitiate the consent
ought to be proximate to the occurrence. The long standing
relationship also bears upon the potency of allegations of sexual
exploitation on a false promise of marriage. If a relationship
continues for over 10 long years, it may be audacious to draw an
inference that the consent was under a misconception of fact.
18. The aforesaid aspect of long standing relationship
was adverted to by the Supreme Court in the case of
Maheshwar Tigga vs. The State of Jharkhand3 wherein the
Supreme Court laid emphasis on the element of proximity of
time to the occurrence. The observations in para 14 are
instructive and, thus, extracted below :
" 14] Under Section 90 IPC, a consent given under a
misconception of fact is no consent in the eyes of law. But
the misconception of fact has to be in proximity of time to
3 AIR 2020 SUPREME COURT 4535.
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the occurrence and cannot be spread over a period of four
years. It hardly needs any elaboration that the consent by
the appellant was a conscious and informed choice made
by her after due deliberation, it being spread over a long
period of time coupled with a conscious positive action not
to protest. The prosecutrix in her letters to the appellant
also mentions that there would often be quarrels at her
home with her family members with regard to the
relationship, and beatings given to her."
(emphasis supplied)
19. In the backdrop of the aforesaid exposition of law,
reverting to the facts of the case, prima facie, I am of the view
that the claim of the applicant that the relationship was
consensual cannot be brushed aside lightly. Undoubtedly, the
question as to whether the physical relations were consensual is
a question of fact and is a matter for trial. However, on balance,
I am of the considered view that the applicant has made out a
prima facie case for grant of pre-arrest bail qua the allegations
of rape.
20. As regards, the allegations of cheating, the learned
APP and the learned counsel for the prosecutrix strenuously
urged that there is material on record, in the form of whats-app
chats between the applicant and prosecutrix, which indicates
that the applicant had repeatedly demanded money from the
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prosecutrix. Attention of the Court was also invited to the
notice dated 30th November, 2017, addressed by Chief Manager,
Bank of India, Mazgaon Branch, to the prosecutrix demanding
repayment of the loan advanced to Anita Embroidery
Enterprises. Cumulatively, according to learned APP and the
learned counsel for the prosecutrix, these documents lend
unflinching corroboration to the claim of the prosecutrix that
she was made to part with huge amount on a false promise of
marriage.
21. In contrast, it was submitted on behalf of the
applicant that there is no material on record to indicate that the
prosecutrix had advanced the amount and the applicant, in
turn, acknowledged the same.
22. In the light of the relationship which the applicant
and the prosecutrix shared, for 10 long years, the claim of the
prosecutrix that she had advanced money to the applicant
cannot be brushed aside for want of formal acknowledgment on
the part of the applicant. However, the applicant claims to have
advanced a huge sum of Rs.1,12,00,000/-. The quantum of
amount advanced is essentially a matter for trial. On a proper
construction, prima facie, even the notice dated 30th November,
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2017 addressed by the Bank of India, seeking repayment of the
amount, would indicate that the loan was advanced to the entity
of the prosecutrix. It is indeed a matter of evidence as to
whether the prosecutrix did, in turn, pay the loan amount so
availed, to the applicant.
23. The submission on behalf of the prosecutrix that the
whats-app chats lend support to the claim that the applicant
had been pestering the prosecutrix to advance money, appears
sustainable. To add to this, in the application itself, (ground
"O"), the applicant conceded that the applicant had taken a
friendly loan to the tune of Rs. 18 to 20 Lakhs from the
prosecutrix and had every intention to repay the same.
24. When the learned counsel for the applicant was
confronted with the said stand of the applicant, the learned
counsel for the applicant, on instructions, made a statement
that the applicant is ready to deposit the sum of Rs.18 Lakhs
provided a time of 6 months was given to the applicant for the
deposit of the said amount, in installments.
25. The situation which thus obtains is that, during the
course of the relationship which the applicant and the
prosecutrix shared, there were financial dealings. The question
that wrenches to the fore is whether the applicant had
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dishonest intention since the inception of the relationship. The
applicant might not have been able to repay the amount as
agreed. But the moot question is, was these an element of
criminality ?
26. In the circumstances of the case, in my considered
view, the answer, prima facie, seems to be in the negative. In
any event, the custodial interrogation of the applicant does not
seem warranted to facilitate investigation, qua the offence
punishable under Section 420 as well.
27. So far as the aspect of the recovery of the amount,
even if acceded to, a useful reference in this context can be
made to the Constitution Bench judgment in the case of Sushila
Aggarwal and Ors. vs. State (NCT of Delhi) and Anr. 4 wherein
"deemed custody" was held sufficient for the purpose of fulfilling
the provisions of section 27 of the Evidence Act. Paragraph
92.8 of the said Judgment reads as under.
"92.8] The observations in Gurubaksh Singh Sibbia vs.
State of Punjab regarding "limited custody" or "deemed
custody" to facilitate the requirements of the
investigative authority, would be sufficient for the
purpose of fulfilling the provisions of Section 27, in the
event of recovery of an article, or discovery of a fact,
which is relatable to a statement made during such
event (i.e deemed custody). In such event, there is no
question (or necessity) of asking the accused to
separately surrender and seek regular bail. Sibbia (s)
had observed that :
4 (2020) 5 Supreme Court Cases 1.
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19. ...... if and when the occasion arises, it may be possible for
the prosecution to claim the benefit of section 27 of the
Evidence Act in regard to a discovery of facts made in
pursuance of information supplied by a person released on bail
by invoking the principle stated by this Court in State of U.P. vs.
Deoman Upadhyaya."
(emphasis supplied)
28. Lastly, it must be noted that the allegations of
threatening the prosecutrix levelled against the sister of the
applicant and the sexual harassment and criminal intimidation
levelled against the applicant are required to be appreciated in
the context of the strained relationship between the parties.
Nonetheless the concern of the prosecution, can be taken care of
by imposing stringent conditions.
29. For the forgoing reasons, I am impelled to exercise
the discretion in favour of the applicant. Resultantly, the
interim order deserves to be confirmed, subject to the applicant
depositing the amount of Rs.20 Lakhs in the Court of Session,
Greater Bombay. Hence, the following order :-
ORDER
1. The application stands allowed.
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2. The interim order passed by this Court on 15 th
November, 2019 stands confirmed, subject to the
applicant depositing a sum of Rs. 20 Lakhs in the
Court of Session, Grater Bombay, in four equal
installments of Rs. 5 Lakhs each on or before 5th Day of
each month, commencing from January - 2021.
3. The aforesaid deposit shall abide the order which may
be eventually passed in the resultant prosecution by
the jurisdictional Court.
4. In addition to the conditions imposed in the interim
order dated 15th November, 2019, the applicant shall
not either himself or through any other person contact
the prosecutrix or any other person and/or shall not
give threats or inducement to the prosecutrix or any
other prosecution witness.
5. In the event the charge-sheet is filed, the applicant
shall regularly attend the proceedings before the
jurisdictional Court.
6. The applicant shall furnish his current address and
contact numbers to the Investigating Officer.
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7. The applicant shall surrender his passport if he holds,
and if not, file an undertaking that he does not hold the
passport, before the Court of Session and shall not
leave the country without prior permission of the Court
of Session.
8. In the event of default in complying with any of the
aforesaid conditions, the prosecution shall be at liberty
to seek cancellation of the bail.
9. In view of the disposal of the application, interim
application No. 217 of 2020 does not survive and
accordingly stands disposed of.
(N. J. JAMADAR, J.)
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