Bombay High Court
Mohit Sanjay Pande vs The State Of Maharashtra Thr. Pso Ps ... on 5 August, 2024
2024:BHC-NAG:8612
1 48 apeal323.2024.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO. 323 OF 2024
APPELLANT: Mohit Sanjay Pande,
Aged 32 years, Occu: Private,
R/o Plot No.1, Santoshi Nagar,
Pipla Road, Ayodhya Nagar, S.O., Nagpur.
Maharashtra -440024.
(Presently at Nagpur Central Prison)
...V E R S U S...
RESPONDENTS 1] State of Maharashtra,
through Police Station Officer,
Police Station, Hudkeshwar, Nagpur.
2] XYZ (Complainant)
in Crime No.0140/2024
P.S. Hudkeshwar, Nagpur.
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Mrs. S.P. Chavhan, counsel for appellant.
Mrs. M.A.Barbde, APP for respondent/State.
Mr. B.H. Tekam, counsel for the respondent No.2.
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CORAM : URMILA JOSHI-PHALKE, J.
DATE : 05/08/2024
ORAL JUDGMENT :
1. Heard.
2. Admit.
3. Heard finally with the consent of learned counsel
appearing for the parties.
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4. By preferring this appeal, the appellant has
challenged the order passed by the Special Court under the
Scheduled Caste and Scheduled Tribes (Prevention of Atrocities)
Act, 1989, Nagpur in Criminal Bail Application No. 886/2024.
5. The accusation against the present appellant is on the
basis of a report lodged by the victim, aged about 31 years,
alleging that she got acquaintance with the present appellant. She
was doing work as a beautician. She was called by the present
appellant at his house on 24/09/2022, and she was administered
some stupefying substance by mixing it in the tea. After drinking
tea, she became drowsy, and when she regained consciousness, it
was revealed to her that she was subjected for sexual assault.
Thereafter, the present appellant promised her for marriage and
subjected her for sexual assault time and again, and subsequently,
he refused to marry her therefore, she approached the police
station and lodged a report.
6. Heard learned counsel for the appellant, she
submitted that there was a consensual sexual relationship between
the victim and the present appellant, which resulted into her
pregnancy. The victim has also obtained the divorce from her
husband, but for one or other reasons, marriage was not
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performed, and therefore, she has lodged the report. Now, they
have already performed the marriage, and the appellant and the
victim are residing together. The investigation is also completed
and charge-sheet is also filed. In view of that, the appellant be
released on bail.
7. Learned APP strongly opposed the said appeal on the
ground that merely because the appellant has shown his
willingness to perform the marriage with her, it is not sufficient to
release the appellant on bail. She submitted that considering the
nature of the crime, the application deserves to be rejected.
8. Learned counsel for the victim also submitted that
now that they have performed the marriage, there was a
consensual relationship, as the marriage was earlier not
performed, therefore the victim has lodged the report.
9. After hearing learned counsel for the appellant as well
as respondent No.2 and after considering the recitals of the FIR, it
reveals that there was a consensual relationship between the
victim and the present appellant, which resulted into a physical
relationship, and the victim was pregnant. As the appellant has not
performed the marriage and therefore, the report was lodged
against the appellant. Now, they have already performed the
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marriage. The affidavit to that extent is filed on record by the
appellant. Here in the present case, considering the peculiar
circumstances under which the alleged incident has taken place.
10. As far as the consensual sexual relationship is
concerned, it is observed by the Hon'ble Apex Court, in the case of
Dr. Dhruvaram Murlidhar Sonar vs The State Of Maharashtra, in
Criminal Appeal No. 1443 Of 2018, (Arising out of S.L.P.
(Criminal) No.6532 of 2018) decided on 12/11/2018, is
appropriate and is applicable in the present case. In para -20
of the said judgment which reads thus:
"Thus, there is a clear distinction between
rape and consensual sex. The court, in such cases,
must be 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 malafide
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intention and if he had clandestine motives, it is a
clear case of rape. The acknowledged consensual
physical relationship between the parties would not
constitute an offence under Section 376 of the Indian
Penal Code, 1860"
11. In view of the above, the case for grant of bail is
made out by the present appellant. In view of that, appeal
deserves to be allowed. Accordingly, I proceed to pass the
following order;
a) The criminal appeal is allowed.
b) The appellant - Mohit Sanjay Pande, shall be
released on bail, in connection with Crime No.
140/2024 registered with Police Station
Hudkeshwar, Nagpur for the offences punishable
under Sections 376(2)(n) of the Indian Penal
Code, 1860; and under Section 3(1)(w)(i)(ii),
3(2)(v) of the Scheduled Caste and Scheduled
Tribes (Prevention of Atrocities) Act, 1989, on
executing P.R. Bond of Rs. 25,000/- with one
solvent surety in the like amount.
c) The order passed by the Special Court under the
Scheduled Caste and Scheduled Tribes
6 48 apeal323.2024.odt
(Prevention of Atrocities) Act, 1989, Nagpur in
Criminal Bail Application No. 886/2024 is hereby
quashed and set aside.
d) The appellant shall attend the proceedings before
the Special Court without seeking any exemption
unless there are exceptional circumstances.
The Criminal Appeal is disposed of
accordingly.
[URMILA JOSHI-PHALKE, J.]
Signed by: Mr. R.K. NANDURKAR
Designation: PA To Honourable Judge
Date: 07/08/2024 10:56:47
