Bombay High Court
Rajkumar Uttam Padvi vs The State Of Maharashtra on 12 October, 2021
Bench: M. G. Sewlikar
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
BAIL APPLICATION NO. 890 OF 2021
Rajkumar Uttam Padvi Applicant
Versus
The State of Maharashtra & another Respondents
Mr. Menezes Joslyn, Advocate holding for Mr. P.S. Paranjape,
Advocate for the applicant.
Mr. S.D. Ghayal, APP for respondent/State.
Mr. Y.H. Jadhav, Advocate for respondent No. 2.
CORAM : M.G. SEWLIKAR, J.
DATE : 12th October, 2021.
PER COURT :
1. Heard.
2. Victim was 16 years and 4 months of age at the time of
the incident. Informant is the father of the victim. On 19 th
November, 2020, at 3.00 pm, when informant was on duty, he got a
call from his wife that victim was not being seen in the house and she
was searched everywhere but her whereabouts were not known.
Informant immediately came home and conducted search of the
victim. Informant came to know that applicant was also not there in
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the village. Therefore, he lodged First Information Report on
suspicion that victim was kidnapped by the applicant. On the basis
of this First Information Report, offence under Sections 363 of the
Indian Penal Code came to be registered and after investigation,
charge-sheet came to be fled under Sections 363, 376(2)(n) of the
Indian Penal Code and Sections 5(L) and 6 of Protection of Children
from Sexual Offences Act came to be registered against the applicant.
3. Shri Menezes, learned counsel for the applicant submits
that the age of the victim at the time of the incident was 16 years and
4 months which means she was of the age of understanding. She has
given statement under Section 164 of the Code of Criminal Procedure
that she is in love with the applicant and she had travelled with the
applicant at many places. He submits that applicant is 23 years of
age. He places reliance on the judgment of this Court (Coram : Mrs.
Mridula Bhatkar, J.) in the matter of Sunil Mahadev Patil vs. State of
Maharashtra in Bail Application No. 1036/2015 dated 3rd August,
2015, and the case of Anirudha Radheshyam Yadav vs. The State of
Maharashtra reported in LAWS(BOM) 2020-1-302 (Coram : Sandeep
K. Shinde, J.) dated 9th January, 2020.
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4. Learned APP and learned counsel for the informant
submit that the victim being minor was not capable of giving consent.
Applicant had sexual intercourse with the victim. Therefore, offences
as alleged have been clearly made out.
5. This Court in the matter of Sunil Mahadev Patil vs. State
of Maharashtra (supra), has laid down the considerations for deciding
bail application under Protection of Children from Sexual Offences
Act. In paragraph No. 12 of the said judgment it is held thus :
12. The overall considerations while deciding such
applications can be summed up as -
When a boy and a minor girl are in love with
each other and chose to live together without consent
of their parents, then the following factors are to be
considered :
(i) What is the age of the prosecutrix, who is
minor
(ii) Whether the act is violent or not.
(iii) Whether there are antecedents or not.
(iv) Whether the offender is capable of
repeating the Act or not.
(v) Whether there is likelihood of threats or
intimidation, if at all the boy is released.
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(vi) Whether any chance of tampering with
the material witnesses when their
statements are recorded.
(vii) It is also to be taken into account in such
cases that a boy in his early 20's
deserves to get employment and to plan,
stabilize and secure his future.
6. In the case of Anirudha Radheshyam Yadav vs. The State
of Maharashtra (supra), it is held thus :-
4. So far as the offences punishable under Section
4, 6, 8 of POCSO Act (Special law) is concerned, it may
be stated that the provisions of this law are, though,
stringent in nature, would not deter the Court to
grant or refuse bail in order to secure the ends of
justice. The conduct of the victim is indicative of the
fact that she had left the home of her parents by her
own will and that she had surrendered to the physical
desires of the applicant out of her love and affection
for him. It is not the case of the prosecution that the
applicant had promised to marry her. Additionally, it
is also not a case where under the misconception of
the fact, she had served herself to the desire of the
applicant for physical relations. No doubt, that the
applicant, under the preview of POCSO Act, is a
minor, however, the facts of the present case indicate
that she had suffcient knowledge and capacity to
know full import of what she was doing and had only
thereafter voluntarily joined the complainant.
7. In the case at hand, statement of the prosecutrix shows
that she is in love with the applicant. She states that she is in love
with the applicant since last three years but her parents are against
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the same. Therefore, she eloped with the applicant. On 19 th
November, 2020, at about 3.00 pm, she went to Navapur Chaufuli
from her house. Accused was already present there. Both of them
went to Bardoli (Gujrat). They stayed there for one day and thereafter
they went to village Loni Kalbhor, Dist. Pune. They stayed there from
21st November, 2020 to 28th January, 2021. She further stated in the
statement that the applicant used to do work of sugarcane cutting in
the feld of Rama Kalbhor and both of them had sexual intercourse
from 21st November 2020 to 28th January, 2021.
7. It is not in dispute that the age of the prosecutrix at the
time of the incident was 16 years and 4 months. She was of the age
of understanding and was capable of understanding the
consequences of her act. In view of this, and in view of the law laid
down by this Court in the matter of Sunil Mahadev Patil vs. State of
Maharashtra (supra) and Anirudha Radheshyam Yadav vs. The State
of Maharashtra (supra), I am inclined to release the applicant on bail.
Hence the following order :-
ORDER
I) Application is allowed.
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ii) Applicant be released on PR Bond of
Rs.15,000/- (Rs. Fifteen Thousand) with one solvent
surety in the like amount in connection with Crime
No. 1496/2020 registered with Nandurbar City
Police Station, Dist. Nandurbar, for the offences
punishable under Sections 363, 376(2)(n) of the
Indian Penal Code and under Sections 5(L), 6 of
Protection of Children from Sexual Offences Act.
Iii) Application is disposed of.
iv) It is clarifed that the observations made in
the above order are restricted to the decision of this
application only and the trial Court shall not get
influenced by the same and can come to its
independent conclusion during trial.
( M. G. SEWLIKAR )
Judge
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