Bombay High Court
Akash Raosaheb Sarode vs The State Of Maharashtra on 11 January, 2021
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
22 BAIL APPLICATION NO.1447 OF 2020
AKASH RAOSAHEB SARODE
VERSUS
THE STATE OF MAHARASHTRA
...
Mrs. S.G. Sonawane, Advocate for applicant
Mr. S.Y. Mahajan, APP for respondent
...
CORAM : SMT. VIBHA KANKANWADI, J.
DATE : 11th JANUARY, 2021.
ORDER :
1 Present applicant has been arrested, in connection with Crime
No.4563/2020 dated 26.06.2020 registered with Kotwali Police Station, Tq.
& Dist. Ahmednagar, for the offence punishable under Section 363, 366,
376(2)(i)(n) of The Indian Penal Code and under Section 4 and 6 of The
Protection of Children from Sexual Offences Act, 2012. It appears that the
investigation is over and charge sheet has been filed before the learned
Special Judge under POCSO Act bearing Special Case No.282/2020. Present
application has been filed for regular bail under Section 439 of The Code of
Criminal Procedure, 1973.
2 Heard learned Advocate Mrs. S.G. Sonawane for the applicant
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and learned APP Mr. S.Y. Mahajan for the respondent.
3 It has been vehemently submitted on behalf of the applicant that
perusal of the First Information Report would show that there is no direct or
indirect evidence or even circumstantial evidence against the accused. The
victim had herself left the house of her father without any inducement by the
present applicant. The applicant merely allowed her to accompany him, and
therefore, Section 363 of the Indian Penal Code is not attracted, as the facts
do not amount to (taking or inducing away) of a minor from the lawful
custody of the guardian, which is an essential ingredient. As per the birth
certificate, the age of the victim is 14 years 03 months. She had left the
company of her parents and accompanied the applicant. She did not even
raise alarm while travelling despite the opportunity of running away. On this
count also it shows that when it was by her consent; ingredients of Section
366 of the Indian Penal Code are not attracted. The statement of the
landlord Niyamat Pathan would show that the victim had given her consent
to reside with the applicant. Further, it appears that she voluntarily
consented for the sexual relationship with the applicant. The victim was
knowing the applicant since five months prior to the incident and it appears
to be a love affair. Now, the investigation is over and the further physical
custody of the applicant is not required. She, therefore, prayed for release of
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the applicant on bail.
4 Per contra, the learned APP strongly opposed the application and
submitted that the applicant is aged 25. He is presumed to have every
understanding capacity, but then the victim is minor. He has taken
disadvantage of the innocence of the victim and took her away from the
lawful custody of her guardian. The medical report of the victim supports the
prosecution story. When there is sufficient evidence on record the applicant
does not deserve any kind of sympathy.
5 The learned Advocate appearing for the applicant has relied on
the order passed by this Court at Principal Seat in Criminal Bail Application
No.2632 of 2019, Anirudha Radheshyam Yadav vs. The State of Maharashtra,
wherein after relying on the decision in S. Varadarajan vs. State of Madras,
AIR 1965 942, the applicant therein, who was facing similar offence, has
been released on bail. Per contra, the learned APP submitted that the facts of
those cases were different and at that time the POCSO Act was not in force.
Specific legislation has been enacted to protect the minors, and therefore, the
same criterion need not be applied.
6 It is to be noted that the FIR has been lodged by the father of the
victim. It is specifically stated that victim is 14 years of age. The father was
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not aware, as to where the girl has gone, and therefore, the FIR came to be
lodged against unknown person under Section 363 of the Indian Penal Code.
No doubt, now, the investigation is over and charge sheet has been filed,
therefore, the further physical custody only for the purpose of investigation is
not required. But, at the same time, now, we are required to consider what is
the evidence, that is collected against the present applicant. Applicant is
aged 25. In his bail application, there is no specific word or sentence, which
states that he had love affair with the victim. Therefore, the said angle
cannot be inferred, though tried to be canvassed on his behalf. In a way the
applicant is admitting that he was with the victim since she left her house
and till they were apprehended. He has not tried to give any reason, as to
why he was with her. The FIR has been lodged on 26.06.2020 and the victim
was brought by police on 01.07.2020. Thus, when he has not given any
reason, as to why he was with her during the said period, he cannot try to say
that he had not taken and enticed her away. The statement of the victim
would show that under the promise of marriage the present applicant had
taken her away and even prior to that, on the terrace of his house, he had
sexual intercourse with her and after the medical examination was done of
the victim, it was found that she is pregnant of five months. No doubt, now,
the DNA test has been conducted and it will not be out of place to mention
here that the pregnancy of the victim appears to have been terminated under
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the orders passed by Division Bench of this Court in Writ Petition No.4886 of
2020. The DNA report of the fetus, applicant and the victim is positive and
the opinion given is that the present applicant and the victim are concluded
to be the biological parents of the abortus of victim. Therefore, there is
ample evidence against the present applicant, apart from the recovery of the
clothes, statements of witnesses and the panchnamas.
7 Now, the applicant has tried to rely on the decision in Anirudha
Radheshyam Yadav (supra) for giving equal treatment to him, by giving
advantage of the decision in S. Varadarajan (supra). At the outset, it can be
said that after entire evidence, that is on record, the Hon'ble Apex Court had
observed -
"Where a minor girl alleged to be taken away by the accused person,
had left her father's protection knowing and having capacity to know
the full import of what she was doing and voluntarily joined the
accused, it could not be said that the accused had taken her away
from the keeping of her lawful guardian within the meaning of
section 361 of the Indian Penal Code, 1860 ("IPC" for short).
Something more had to be done in a case of that kind, such as an
inducement held out by the accused person or an active participation
by him in the formation of the intention either immediately prior to
the minor leaving her father protection or at some earlier stage."
8 Here, we are at the prima facie stage, first. Secondly, the recent
pronouncement by the Hon'ble Apex Court is required to be considered. In
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Criminal Appeal No.1919 of 2020, Anversinh @ Kiransinh Fatesinh Zala vs.
State of Gujarat, decided by Three Judge Bench of Hon'ble Supreme Court on
12.01.2021, it has been observed -
"17. The ratio of S. Varadarajan (supra), although attractive at first
glance, does little to aid the appellant's case. On facts, the case is
distinguishable as it was restricted to an instance of "taking" and not
"enticement". Further, this Court in S. Varadarajan (supra) explicitly
held that a charge of kidnapping would not be made out only in a
case where a minor, with the knowledge and capacity to know the full
import of her actions, voluntarily abandons the care of her guardian
without any assistance or inducement on part of the accused. The
cited judgment, therefore, cannot be of any assistance without
establishing: first, knowledge and capacity with the minor of her
actions; second, voluntary abandonment on part of the minor; and
third, lack of inducement by the accused."
9 As regards the defence of consensual affair taken by the accused
is concerned, it has been observed -
"12. A perusal of Section 361 of IPC shows that it is necessary that
there be an act of enticing or taking, in addition to establishing the
child's minority (being sixteen for boys and eighteen for girls) and
care/keep of a lawful guardian. Such 'enticement' need not be direct
or immediate in time and can also be through subtle actions like
winning over the affection of a minor girl. However, mere recovery of
a missing minor from the custody of a stranger would not ipso-facto
establish the offence of kidnapping. Thus, where the prosecution fails
to prove that the incident of removal was committed by or at the
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instigation of the accused, it would be nearly impossible to bring the
guilt home as happened in the cases of King Emperor v. Gokaran and
Emperor v. Abdur Rahman.
13. Adverting to the facts of the present case, the appellant has
unintentionally admitted his culpability. Besides the victim being
recovered from his custody, the appellant admits to having established
sexual intercourse and of having an intention to marry her. Although
the victim's deposition that she was forcefully removed from the
custody of her parents might possibly be a belated improvement but
the testimonies of numerous witnesses make out a clear case of
enticement. The evidence on record further unequivocally suggests
that the appellant induced the prosecutrix to reach at a designated
place to accompany him.
14. Behind all the chaff of legalese, the appellant has failed to
propound how the elements of kidnapping have not been made out.
His core contention appears to be that in view of consensual affair
between them, the prosecutrix joined his company voluntarily. Such a
plea, in our opinion, cannot be acceded to given the unambiguous
language of the statute as the prosecutrix was admittedly below 18
years of age.
15. A bare perusal of the relevant legal provisions, as extracted
above, show that consent of the minor is immaterial for purposes of
Section 361 of IPC. Indeed, as borne out through various other
provisions in the IPC and other laws like the Indian Contract Act,
1872, minors are deemed incapable of giving lawful consent. Section
361 IPC, particularly, goes beyond this simple presumption. It
bestows the ability to make crucial decisions regarding a minor's
physical safety upon his/her guardians. Therefore, a minor girl's
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infatuation with her alleged kidnapper cannot by itself be allowed as
a defence, for the same would amount to surreptitiously undermining
the protective essence of the offence of kidnapping.
16. Similarly, Section 366 of IPC postulates that once the
prosecution leads evidence to show that the kidnapping was with the
intention/knowledge to compel marriage of the girl or to
force/induce her to have illicit intercourse, the enhanced punishment
of 10 years as provided thereunder would stand attracted."
10 Therefore, taking into consideration the above said legal position
and the fact that there is ample evidence against the present applicant,
benefit of Anirudha Radheshyam Yadav's case (supra) cannot be given to the
applicant. Further fact, that is, required to be noted from the statement of
the victim is that by giving phone call on 26.06.2020 on the phone of the
mother of victim, applicant had called her along with her clothes, and
therefore, this amounts to active role played by him. Therefore, when there
is ample evidence against him, he does not deserve discretionary relief to be
released on bail. He was not supposed to take disadvantage of the innocence
of the innocent girl. Application stands rejected.
( Smt. Vibha Kankanwadi, J. )
agd
