Ravindra Muralidhar More vs The State Of Maharashtra And ...
2021 Latest Caselaw 3722 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                         12 BAIL APPLICATION NO.43 OF 2021


                             RAVINDRA MURLIDHAR MORE
                                        VERSUS
                             THE STATE OF MAHARASHTRA
                                           ...
Mr. R.B. Ade, Advocate h/f Mrs. Chaitali R. Kutti Choudhary, Advocate for the
                                        applicant
                           Mr. N.T. Bhagat, APP for respondent
                                           ...

                                     CORAM :        SMT. VIBHA KANKANWADI, J.
                                     DATE :         01st MARCH, 2021.


ORDER :

1 Present applicant has been arrested, in connection with Crime

No.164/2019 dated 05.05.2019 registered with Chopda City Police Station,

Dist. Jalgaon, for the offence punishable under Section 363, 366-A, 376(1)

(A), 376(3) of The Indian Penal Code and under Section 4, 8 and 12 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

Additional Sessions Judge/Special Judge bearing Special Case No.5/2020.

Present application has been filed for regular bail under Section 439 of The

Code of Criminal Procedure, 1973.

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2              Heard learned Advocate Mr. R.B. Ade holding for learned

Advocate Mrs. Chaitali R. Kutti Choudhary for the applicant and learned APP

Mr. N.T. Bhagat 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

evidence against the applicant. He is aged 23. He has permanent place of

abode. Applicant is the only bread earner of his family. Applicant is a

migrant worker, doing work of cutting sugarcane. He is in jail since 11

months. His wife has taken divorce from him and married someone else. His

old mother and father reside along in their village, as applicant is in jail and

there is nobody to take care of his old aged parents.

4 It has been further submitted on behalf of the applicant that as

per the prosecution case, he kidnapped the victim out of the lawful

guardianship of informant, on the pretext of marriage with her in a temple

and he established physical relations with her many times during the period

from 26.04.2019 to 06.10.2019. Applicant further states that the mother of

the victim has lodged the FIR on 05.05.2019, informing the police that the

applicant has kidnapped her daughter from her house and after lodging the

report, during investigation the victim was found in the custody of applicant.

Applicant has no criminal antecedents. Investigation is over and charge sheet

3 BA_43_2021

has been filed. Therefore, physical custody of the applicant is not necessary

for the purpose of investigation. He, therefore, prayed for release of the

applicant on bail.

5 Per contra, the learned APP strongly opposed the application and

submitted that the applicant is aged 23. 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.

6 The learned Advocate appearing for the applicant has relied on

the order passed by this Court at Principal Seat in Sunil Mahadev Patil vs.

State of Maharashtra, 2015 (3) AIR Bom. R (Cri) 594 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.

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7              It is to be noted that the FIR has been lodged by the mother of

the victim.      It is specifically stated that victim is aged 12 years and 11

months. The mother was not aware, as to where the girl has gone, and

therefore, the FIR came to be lodged against the applicant 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 23. 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. Applicant has not tried

to give any reason, as to why he was with her. The FIR has been lodged on

05.05.2019 and the victim was brought to her mother on 06.10.2019. Thus,

when he has not given any reason, as to why he was with her during the said

period, then this fact has to be viewed against him. The statement of the

victim would show that under the promise of marriage the present applicant

had taken her away. Victim was only 12 years 11 months old at that time,

which is not even a marriageable age. She was not in a position, much less

legal position to give consent for anything. The medical report is in favour of

prosecution. Therefore, there is ample evidence against the present

applicant, apart from the recovery of the clothes, statements of witnesses and

5 BA_43_2021

the panchnamas.

8 Now, the applicant has tried to rely on the decision in Sunil

Mahadev Patil (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."

9 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

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

6 BA_43_2021

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."

10 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 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

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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 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

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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."

11 Therefore, taking into consideration the above said legal position

and the fact that there is ample evidence against the present applicant,

benefit of Sunil Mahadev Patil'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 on 26.04.2019 at about 12.30 a.m. applicant took her from her house to

Wadhoda, Tq. Yawal, got married with her and kept sexual relationship till

06.10.2019. 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