Bombay High Court
Shubham S/O. Anil Metangale vs The State Of Mah. Thr. Pso, Ps Mankapur, ... on 29 January, 2024
2024:BHC-NAG:1241
J.57.cri.appeal.806.2023.odt 1/7
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.806 OF 2023
Shubham s/o Anil Metangale,
Aged about 23 years,
Occupation - Private,
R/o. Sawargaon, Tah. Narkhed,
District Nagpur (Presently Central
Prison at Nagpur)
...APPELLANT
VERSUS
1. The State of Maharashtra,
through Police Station Officer,
Police Station Mankapur,
District Nagpur
2. X.Y.Z. (Victim) in
Crime No.312/2023
registered with Police Station
Mankapur, District Nagpur
...RESPONDENTS
_______________________________________________________
Mr. L.B. Khergade, Advocate for the appellant.
Mr. S.S. Hulke, APP for the State.
Mr. A.G. Hunge, Advocate (appointed) for respondent No.2.
_______________________________________________________
CORAM : URMILA JOSHI-PHALKE, J.
DATED : JANUARY 29, 2024.
ORAL JUDGMENT :
ADMIT. Heard finally with the consent of learned Counsel for
the parties.
J.57.cri.appeal.806.2023.odt 2/7
2. By this appeal, the appellant has challenged the order passed
by the Special Court under the Scheduled Caste and Scheduled Tribe
(Prevention of Atrocities) Act, 1989 passed in Criminal Bail Application
No.2809/2023 by which the application of the appellant is rejected for
grant of bail dated 11th December, 2023. The present appeal is preferred
by the appellant under Section 14(A) of the Scheduled Caste and
Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter
referred as 'the Atrocities Act' for short).
3. The appellant came to be arrested on 10 th September, 2023 in
connection with Crime No.312 of 2023 registered under Sections 376,
376(2)(j), 376(2)(n) of the Indian Penal Code and Sections 4, 5(l) and 6
of the Protection of Children from Sexual Offences Act, 2012 and Section
3(1)(w)(i), 3(1),(w)(ii) and 3(2)(va) of the Scheduled Caste and
Scheduled Tribe (Prevention of Atrocities) Act, 1989.
4. It is alleged by the prosecution that in the year 2020 while
victim was studying in 11th standard, she got acquaintance with the
present appellant who was also taking education in the same college and
friendship was developed between them. Said friendship resulted into
the love affair. It is further alleged that the present applicant on the
promise of marriage took her at various places and subjected her for
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sexual assault. On the basis of said report, police have registered the
crime against the present appellant.
5. Learned Counsel for the appellant submitted that as far as the
allegations are concerned which are false in nature. The appellant is not
at all concerned with the alleged offence. Even for taking into
consideration, the allegations as it is, it is apparent that out of love affair
they come together and there was a physical relationship. The victim
was more than 16 years of age at the time of first incident and was
aware about the repercussions of her act. She at her own came along
with the appellant and whatever happened is out of the love
relationship. Now, investigation is completed and charge-sheet is filed.
Further incarceration of the present appellant is not required. In view of
that he be released on bail.
6. Learned Additional Public Prosecutor strongly opposed the
prayer on the ground that the victim is 16 years of age, her consent is
not relevant. The recitals of the FIR shows that the appellant has
promised her for marriage and subsequently denied to marry with her.
The intention of the appellant is since inception, in view of that the
appeal deserves to be dismissed.
7. Learned Counsel for respondent No.2 also endorsed the same
contentions and submitted that from the investigation papers and the
J.57.cri.appeal.806.2023.odt 4/7
recitals of the FIR, it is apparent that on the assurance of false promise of
marriage she was subjected for sexual assault. The consent of the victim
is not relevant. The learned trial Court has rightly considered this aspect
and rejected the application. Merely because charge-sheet is filed is not
sufficient ground to release the appellant on bail. If appellant is released
on bail he will tamper with the prosecution evidence. In view of that the
appeal deserves to be dismissed. He further submitted that the order
passed by the learned trial Court is reasoned order and no interference is
called for.
8. I have heard learned Counsel for the parties. Perused the
investigation papers. From the recitals of the FIR, it reveals that there
was a love affair between the informant and the present appellant. The
said love affair developed as they were studying in the same college. It
further reveals that the informant accompanied him at various places
and out of love affair there was a physical relationship between them. As
far as false promise is concerned, admittedly the consent of the victim is
not relevant as she is below 18 years of age, but it is also evident that
they come together for the physical relationship out of the love affair.
Whether there was a false promise since inception or not is to be
gathered from the circumstances. From the statement of the victim itself
shows that as there was a love affair she herself joined the company of
the present appellant and accompanied him at various places. Out of the
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love affair, they come together and out of physical attractions they had a
physical relationship. It is now well settled that consent may be express
or implied, coerced or misguided, obtained willingly or through deceit.
Consent is an act of reason, accompanied by deliberation, the mind
weighing, as in a balance, the good and evil on each side. There is a
clear distinction between rape and consensual act. There should be
adequate evidence to show that at the relevant time i.e. at the initial
stage itself, the accused had no intention whatsoever, of keeping his
promise to marry the victim. There may, of course, be circumstances,
when a person having the best of intentions is unable to marry the victim
owing to various unavoidable circumstances. The "failure to keep a
promise made with respect to a future uncertain date, due to reasons are
not sufficient to attract the contention that there was intention of the
appellant since inception to deceive the victim. From the recitals of the
FIR and the investigation papers, it reveals two young persons came
together out of the love relationship and had physical relationship. At
the most, it can be said that the intention of the appellant can be
gathered from the circumstances and if evidence is recorded before the
trial Court. At this stage, the investigation is completed and charge-sheet
is filed. Considering the circumstances under which the alleged incident
of physical relationship took place is out of love affair. Further
incarceration of the present appellant is not required and the prayer of
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the present appellant for grant of bail can be considered by imposing
certain conditions.
9. The learned trial Court has not considered this aspect and
rejected the bail application. Learned trial Court ought to have consider
that there was a love affair between the victim and the present appellant
and the investigation is completed. The basic rule is bail and rejection of
bail is an exception. The appellant cannot be sent behind bar by way of
punishment. Considering the investigation is completed and charge-
sheet is filed, further incarceration of the present appellant is not
required. The appeal deserves to be allowed by granting bail to the
appellant by imposing certain conditions. Hence, I proceed to pass
following order :
(i) The appeal is allowed.
(ii) The order passed by the trial Court in Criminal
Bail Application No.2809/2023 rejecting the bail application
of the appellant is hereby quashed and set aside.
(iii) The appellant - Shubham s/o Anil Metangale in
connection with Crime No.312 of 2023 registered under
Sections 376, 376(2)(j), 376(2)(n) of the Indian Penal Code
and Sections 4, 5(l) and 6 of the Protection of Children from
Sexual Offences Act, 2012 and Section 3(1)(w)(i), 3(1),(w)
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(ii) and 3(2)(va) of the Scheduled Caste and Scheduled Tribe
(Prevention of Atrocities) Act, 1989, be released on bail on
executing P.R. Bond in the sum of Rs.25,000/- (Rs. Twenty
five thousand) with one surety in the like amount.
(iv) The appellant shall attend concerned Police
Station as and when required for the investigation purpose.
(v) The appellant shall not directly or indirectly make
any inducement, threat or promise to any person acquainted
with the facts of the case and shall not tamper the
prosecution evidence.
(vi) The appellant shall not in any manner contact the
victim and shall not enter into the vicinity of Gajanan Nagar,
Sawargaon, Taluka Narkhed, District Nagpur till the
culmination of the trial.
10. The appeal is disposed of accordingly.
11. The fees of the appointed Counsel be quantified as per rules.
(URMILA JOSHI-PHALKE, J.)
*Divya
