Bombay High Court
Ishan Manojkumar Shah vs The State Of Maharashtra on 28 March, 2023
Bench: R. G. Avachat
31-ABA.359.2023.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
ANTICIPATORY BAIL APPLICATION NO.359 OF 2023
Ishan s/o. Manojkumar Shah ..Applicant
Vs.
The State of Maharashtra
and ors. ..Respondents
----
Mr.R.S.Wani, Advocate for applicant
Mr.A.S.Shinde, APP for respondent no.1
Mr.K.N.Shermale, Advocate for respondent no.2
----
CORAM : R.G. AVACHAT, J.
DATE : MARCH 28, 2023
PER COURT :-
This is an application for anticipatory bail. The applicant
claims to have apprehension of arrest in connection with Crime
No.0350 of 2022 registered with Muktainagar Police Station, Dist.
Jalgaon, for the ofences punishable under Sections 377, 498-A, 504
and 506 read with Section 34 of the Indian Penal Code.
2. Heard learned counsel for the parties. Perused the First
Information Report ("FIR", for short).
3. The FIR has been lodged by the wife of the applicant on
21.10.2022. It has been alleged therein that she married the applicant
on 08.12.2020. Initially, for some days after the marriage, she was
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treated well by the applicant and in-laws. It has been alleged that
the applicant subjected her to unnatural sexual intercourse. The
applicant is serving in Qatar. He left India for Qatar on 29.01.2021.
It has further been alleged in the FIR that the parents-in-law of the
informant did not treat her well post the applicant left for Qatar. She,
therefore, left her matrimonial home on 12.02.2021 and since then,
she is residing at her parental house.
4. Rejection of this application is mainly urged on the
ground that the applicant had subjected his wife (informant) to
unnatural sexual intercourse. Those alleged acts did take place in
the initial days of the marriage, i.e. in frst three months of the year
2021. It is true that after the informant left the matrimonial home,
she immediately lodged an application under Section 12 of the
Protection of Women from Domestic Violence Act, 2005, wherein she
has alleged to have been subjected to such relationship. It has also
been alleged in the FIR that the applicant snapped photographs of
such acts and threatened to make them viral.
5. Learned counsel for the informant would submit that the
applicant had been unsuccessful in his attempt to seek quashment of
the FIR. The judgment and order of the Division Bench of this
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Court, turning down the applicant's prayer, has been relied on.
According to learned counsel, when the Division Bench refused to
grant the applicant relief, it suggests that there is substance in the
averments in the FIR. The applicant's custody is required for his
medical examination. His cell phone wherein the alleged
photographs have been saved, is also required to be seized.
Learned counsel also relied the following authorities of this Court to
suggest that in those cases, prayer of the applicants therein for
anticipatory bail in case of offence under Section 377 of I.P.C., has
been turned down:-
(i) Amir Mehaj Shaikh and anr. Vs. The State of
Maharashtra, Bombay High Court order dated 14.07.2022 in
Anticipatory Bail Application No.1848 of 2022;
(ii) Dhananjoy Suresh Chandra Sarkar Vs. The State
of Maharashtra and anr., Bombay High Court order dated
19.09.2014 in Anticipatory Bail Application No.1213 of 2014;
(iii) Kalpesh Bhimrao Mahale Vs. The State of
Maharashtra, Bombay High Court, Aurangabad Bench order
dated 01.02.2022 in Anticipatory Bail Application No.1553 of
2021;
(iv) Krushna Prakash Khande Vs. The State of
Maharashtra and anr., Bombay High Court, Aurangabad
Bench order dated 05.08.2022 in Anticipatory Bail
Application No.523 of 2022;
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(v) Ebrahim Mohd. Iqbal Lakdawala Vs. The State
of Maharashtra, Bombay High Court order dated 21.10.2020
in Anticipatory Bail Application (Stamp) No.2224 of 2020
6. Learned APP would submit that the statements of the
parents of the informant have been record. They reiterated what has
been alleged in the FIR. On the question of medical examination of
the informant, he submits that the informant was referred for
medical examination. He is, however, not armed with the medical
examination report.
7. Considered the submissions advanced and the
documents relied on.
8. It is a matrimonial dispute. The applicant is alleged to
have had unnatural sexual intercourse with his wife in frst three
months of 2021. It is true that the informant preferred an application
under Section 12 of the Protection of Women from Domestic Violence
Act, 2005 and made allegations in that regard. Section 377 of I.P.C.
stood diluted post Apex Court judgment in the case of Navtej Singh
Johar and ors. Vs. Union of India, Through Secretary, Ministry of Law
and Justice, (2018)10 SCC 1. As per the said judgment, consensual
relationship between the two adults covering ingredients of offence
under Section 377 of I.P.C. is no longer an offence. Whether the
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alleged acts committed by the applicant with his wife during
subsistence of the marriage were without consent of the wife, can
only be decided during trial of the case, since the wife has come out
with those allegations only after she realised that her marriage has
now been on rocks and there is no possibility of reunion.
9. In the circumstances, custodial interrogation of the
applicant is not necessary. The applicant shall do well to appear
before the Investigating Officer as and when required and subject
him for medical examination. He is also directed to submit the
cellphone, which he has been making use of from the date of the
marriage. The applicant shall not leave India without permission of
the trial Court.
10. With the aforesaid directions, the order dated
14.03.2023, granting the applicant ad-interim anticipatory bail, is
hereby made absolute. The applications is allowed.
11. Failure of the applicant to comply with the aforesaid
directions, may entail rejection of grant of the anticipatory bail to
the applicant.
[R.G. AVACHAT, J.]
kbp
