Bombay High Court
Aman S/O. Arun Borkar vs State Of Mah. Thr. Pso, Ps Ramnagar, ... on 19 January, 2024
2024:BHC-NAG:816
1 24-ABA-783-23.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (ABA) NO. 783 OF 2023
AMAN S/O ARUN BORKAR
Vrs.
STATE OF MAHARASHTRA
--------------------------------------------------------------------------------------------------------
Office Notes, Office Memoranda of Court's or Judge's Order
Coram, appearances, Court's Orders
or directions and Registrar's order
---------------------------------------------------------------------------------------------------------
Shri A. M. Chandekar, Advocate for applicant.
Ms. Sneha Dhote, A. P. P. for Non-applicant-State.
CORAM: URMILA JOSHI-PHALKE, J.
DATE : 19/01/2024.
1. Apprehending the arrest at the hands of
police in connection with Crime No.344/2023 registered
under Sections 376(2)(n), 323 and 506 of the Indian
Penal Code, the applicant approached to this Court for
grant of anticipatory bail.
2. The crime is registered on the basis of report
lodged by the victim aged about 26 years on the allegation
that she got acquaintance with the present applicant on
Face Book and thereafter, there was friendship between
them, which resulted into the love affair. The applicant
from his marriage, she alleged that in the month of
May, 2022, the applicant subjected her sexual assault on
the promise of marriage and also, obtained her photos and
videos and also, assaulted him by slaps. On the basis of
said report, police have registered a crime against the
present applicant.
2 24-ABA-783-23.odt
3. Learned counsel for the applicant submitted
that it was a consensual relationship between the
applicant and the victim. Subsequently, the said
relationship was broken and therefore, false FIR was
lodged. As far as allegations regarding photos and videos
are concerned, he is ready to furnish his mobile phone
before the Investigating Officer. He further submitted that
mere breach of the promise is not sufficient to attract the
provisions of Section 376 of the IPC. The custodial
interrogation of the applicant is not required and the
relationship was of consensual nature, the applicant be
protected by granting anticipatory bail.
4. Learned APP strongly opposed the said
application on the ground that the victim was sexually
assaulted on various occasions on the promise of
marriage. The prima facie case is made out against the
present applicant. The custodial interrogation is required
to ascertain the fact regarding the photos and photographs
and prays for rejection of the application.
5. Having heard learned counsel for the
applicant and learned APP for the State, perused the
investigation papers. During the investigation, the
Investigating Officer has recorded the statement of the
victim as well as she was referred for the medical
examination. The nature of the allegation against the
present applicant is that she got acquaintance with the
present applicant through the Face Book and developed
3 24-ABA-783-23.odt
the love relationship. It appears that there was physical
relationship between them out of the said love affair. The
victim is a grown-up lady and with her consent, the
relationship was developed, appears from the
investigation papers. Now, it is well settled that mere
breach of promise to marry is not sufficient to attract the
provisions of Section 375 of the IPC. The Hon'ble Apex
Court in the case of Shambhu Kharwar Vrs. State of Uttar
Pradesh and another, reported in 2022 SCC On-Line SC
1032, wherein by referring the Judgment of Pramod
Suryakant Pawar Vrs. State of Maharashtra and others,
reported in 2021 SCC On-Line SC 315, it is held that to
establish whether the consent was vitiated by
misconception of fact arising out of promise to marry must
be established. The false promise given in bad faith with
intention to adhere, at the time it was given. The first
promise itself must be of immediate relevance or bears a
direct nexus to the woman's decision to engage in the
consensual acts. In view of the observations of the Hon'ble
Apex Court and on perusal of the facts of the present case,
admittedly, the relationship was consensual relationship.
Considering these facts, the applicant can be protected by
granting anticipatory bail by imposing certain conditions.
Accordingly, I proceed to pass following order :-
ORDER
i] The application is allowed.
4 24-ABA-783-23.odt
ii] The applicant be released on anticipatory bail,
in the event of his arrest in Crime No.344/2023
registered under Sections under Sections 376(2)(n),
323 and 506 of the Indian Penal Code, on executing
PR bond in the sum of Rs.25,000/- with one solvent
surety in the like amount.
iii] The applicant shall produce his mobile phone
before the Investigating Officer for investigation
purpose and the period of the production will be
considered as his custody for the purpose of his
custody in view of Section 27 of the Indian Evidence
Act.
iv] The applicant shall furnish his cell phone
number and address with address proof.
v] The applicant shall not induce, threat or
promise to any person acquainted with the facts of
the present case.
vi] The applicant shall also attend the Police
Station on Sunday between 10.00 a.m. to 1.00 p.m.
and shall co-operate with the investigating agency, till
filing of the charge sheet.
6. Application is disposed of.
[URMILA JOSHI-PHALKE, J.]
Choulwar
Signed by: V.M. Choulwar (VMC)
Designation: PS To Honourable Judge
Date: 20/01/2024 17:28:23
