Bombay High Court
Vaibhav S/O. Shankarrao Pise vs The State Of Mah. Thr. Pso, Ps Wani Dist. ... on 12 January, 2024
2024:BHC-NAG:501
50.apeal.724.2023.judgment.odt
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.724 OF 2023
Vaibhav s/o Shankarrao Pise,
Aged : 28 Years,
Occu.:- CRPF Constable,
R/o Niljai, Taluka - Warora,
District Chandrapur.
At present : Delhi dadri (National Thermal
Power Corporation) ..... APPELLANT
// VERSUS //
1. The State of Maharashtra,
Through Police Station Officer,
Police Station, Wani, District Yavatmal.
2. XYZ (Victim),
Age 22 Years, Occu - Student,
In Crime No.1043/2023
Through Police Station Officer,
Police Station, Wani,
District - Yawatmal. .... RESPONDENTS
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Mr. K. d. Bhende, Advocate for appellant.
Mrs. M. H. Deshmukh, APP for respondent No.1/State.
Ms. Dipali Sahare, appointed Advocate for respondent No.2.
---------------------------------------------------------------------------------------
CORAM : URMILA JOSHI-PHALKE, J.
DATED : 12.01.2024
ORAL JUDGMENT :
1. Heard.
2. Admit.
50.apeal.724.2023.judgment.odt
3. By this appeal, the appellant has challenged the order
passed by the Special Court in Criminal Bail Application
No.166/2023 on 20.10.2023 by which the application for
anticipatory bail is rejected.
4. The crime is registered against the present appellant on
the basis of report lodged by the victim alleging that she got
acquaintance with the present appellant in a marriage of one relative
in April 2021. Thereafter, they had communicated with each other
through the mobile phone. The friendship resulted into love
relationship. The appellant is working with CISF. On 10.08.2022
appellant came to Wani and called the complainant and went in the
hotel. Out of the said love relationship, the appellant promised her
for marriage and there was a physical relationship between them on
that count. Subsequently, present appellant denied performing
marriage with her and therefore, she approached to the police and
lodged the report.
5. It is submitted by the learned Counsel for the appellant
that the relationship between the present appellant and the victim
was for two years. Out of love relationship, they had a physical
relationship. The recitals of the FIR nowhere show that the appellant
was knowing the victim belongs to the Scheduled Castes or
Scheduled Tribes. The recitals of the FIR further nowhere shows that
50.apeal.724.2023.judgment.odt
she was subjected for the sexual assault as the appellant was knowing
she belongs to the particular caste which covers under the Scheduled
Caste. The recitals of the FIR shows that there was a consensual
relationship between them and out of love affair, they came together
and had a physical relationship. Thus, custodial interrogation of the
present appellant is not required. Merely, because, there is a breach
of promise is not sufficient to attract the provision under Section 376
of the Indian Penal Code. In support his contention he placed
reliance on Shambhu Kharwar Vs. State of Uttar Pradesh and another
reported in 2022 SCC OnLine SC 1032. He further submitted that as
from the recitals of the FIR the offence is not made out under the
provisions of Scheduled Castes and the Scheduled Tribes (Prevention
of Atrocities) Act (hereinafter referred as to 'the 1989 Act' for short)
under Section 3(1)(w)(i), 3(1)(w)(ii) and 3(2)(va) and therefore,
the application for anticipatory bail is maintainable.
6. In support of his contention, he placed reliance on
Prathvi Raj Chauhan Vs. Union of India and others reported in (2020)
4 SCC 727 and submitted that in view of the decisions of the Hon'ble
Apex Court, no offence is made out against the present applicant and
there is no bar under Section 18A the 1989 Act to entertain the
application and therefore, appellant be released on bail, in the event
of his arrest, by allowing this appeal.
50.apeal.724.2023.judgment.odt
7. Learned APP strongly opposed the application and the
appeal on the ground that the victim belongs to the Scheduled Caste
and the appellant was knowing about the same. He subjected her for
sexual assault by promising her for marriage. The bar under Section
18 of the 1989 Act, is attracted. Moreover, there was no free consent
for the sexual relationship. The consent is obtained on the promise of
marriage, therefore, application for anticipatory bail is not
maintainable and learned trial Court has rightly rejected the same.
No interference is called for in the order passed by the trial Court.
8. Learned appointed Counsel for the respondent No.2
endorsed the same contention and submitted that there is a bar
under Section 18A of the 1989 Act, and therefore, appeal is not
maintainable and prays for dismissal of the of the appeal.
9. Having heard learned Counsel for the appellant and
learned APP for the Sate, perused the recitals of the FIR. From the
recitals of the FIR, it reveals that the victim has not stated that the
appellant was knowing she belongs to the Scheduled Caste. It
appears from the recitals of the FIR that, she got acquaintance with
the present appellant in the marriage of one of the relative and
thereafter, they developed friendship which resulted into the love
affair. Admittedly, victim is age of understanding and has attained
the age of majority. It further reveals that as there was a promise of
50.apeal.724.2023.judgment.odt
marriage, there was a physical relationship between them and they
visited various places and it continued for two years. However,
subsequently, the appellant denied to perform marriage with her.
Learned Counsel for the appellant submitted that due to the dispute
between them the appellant denied to perform marriage with her. As
far as the scope of Section 18 of the 1989 Act are concerned, he
submitted that when there is no prima facie case finds out from the
allegation in the FIR, the application for anticipatory bail is
maintainable. Admittedly, from the recitals of the FIR it appears that,
there was a love relationship between them and out of the said love
relationship they have developed a physical relationship. Whether
the consent was obtained by misconception of the fact or not is to be
considered. The Hon'ble Apex Court in the case of Shambhu Kharwar
(supra) dealt with this issue and held that to establish whether the
"consent" was vitiated by a "misconception of fact" arising out of a
promise to marry, two propositions must be established. The promise
of marriage must have been a false promise, given in bad faith and
with no intention of being adhered to at the time it was given. The
false promise itself must be of immediate relevance, or bear a direct
nexus to the woman's decision to engage in the sexual act.
10. In the present case, the issue which had to be addressed
is whether there was a false promise or not. Admittedly, the
50.apeal.724.2023.judgment.odt
appellant and the victim were in a consensual relationship for two
years. They both are educated and adults. They entered into the
relationship with understanding of the consequences of the said
relationship. It is well settled that mere breach of promise is not
sufficient to attract the provisions. Taking into consideration the
allegations in the FIR and the investigation papers, the crucial
ingredients of the offence under Section 375 of the Indian Penal Code
(IPC), are absent. The relationship between the parties are purely of
consensual nature. The relationship as noted above was in existence
till filing of the FIR i.e. for two years.
11. As far as bar under Section 18A of the 1989 Act is
concerned, now it is well settled that when prima facie case is not
made out anticipatory bail can be granted in appropriate
circumstances. The Hon'ble Apex Court in the case of Prathvi Raj
Chauhan (supra) by referring to the various judgments held that
grant of anticipatory bail under Section 438 of Cr. P. C. is barred in
respect of offences under the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, however where prima facie case not
made, anticipatory bail can be granted in appropriate circumstances
with a cautious exercise of power. Section 18 and 18A of the 1989
Act have no application where prima facie case is not made out.
50.apeal.724.2023.judgment.odt
However, for evaluating the prima facie case reappreciation of the
evidence is not required.
12. In the light of the well settled principle laid down by
Hon'ble Apex Court, if the facts of the present case are taken into
consideration, there is no material to show that the appellant was
knowing that victim belongs to the Scheduled Caste and Scheduled
Tribes. The relationship between the appellant and victim was
developed as they got acquaintance with each other which resulted
into the love affair and by consent they had a physical relationship
with each other. It is the settled law now that mere breach of
promise is not sufficient to attract the provisions under Section 375
of the IPC. Thus, appellant has made out the case for grant of
anticipatory bail. The learned Court below has not considered that
bar is not attracted and mere promise of marriage is not sufficient to
attract the provision i.e. to make out the offence under Section 375 of
the IPC. In view of that, appeal deserves to be allowed. Accordingly,
I proceed to pass following order.
ORDER
(i) The appeal is allowed.
(ii) The order passed by the Special Court in Criminal
Bail Application No.166/2023 dated 20.10.2023 is
quashed and set aside.
50.apeal.724.2023.judgment.odt
(iii) The appellant Vaibhav s/o Shankarrao Pise be
released on anticipatory bail in the event of his arrest in
connection with Crime No.1043/2023 registered with
Police Station, Wani, District Yavatmal for the offences
punishable under Sections 376(2)(n), 417 and 506 of the
Indian Penal Code and under Sections 3(1)(w)(i), 3(1)(w)
(ii), 3(2)(va) of the Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act, 1989, on executing
PR bond in the sum of Rs.25,000/- with one solvent surety
in the like amount.
(iv) The appellant shall attend Police Station as and
when required for the investigation purpose and the
Investigating Officer shall issue advance notice of seven
days to the present appellant to secure his presence.
(v) The appellant shall not induce, threat or promise any
witnesses who are acquainted with the facts of the case.
13. The fees of the appointed Counsel for respondent No.2 be
quantified as per rules.
(URMIL A JOSHI-PHALKE, J.)
Sarkate.
Signed by: Mr. A.R. Sarkate
Designation: PA To Honourable Judge
Date: 15/01/2024 18:37:44
