Bombay High Court
Bhashkar Balaji Borkute vs State Of Maharashtra Thr. Pso Gondpipri ... on 1 July, 2024
2024:BHC-NAG:6831
1 3appeal225.2024.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO. 225 OF 2024
APPELLANT: Bhashkar Balaji Borkute,
Aged about 31 Years, Occu: Agriculturist,
R/o Fulora Heti, Near Hanuman Mandir,
Ward No.2, Post-Bhangaram Talodi,
Tah. Gondpipari, District -Chandrapur.
...V E R S U S...
RESPONDENTS 1] The State of Maharashtra,
through P.S.O. Gondpipri,
District Chandrapur.
2] XYZ (Victim) in Crime No. 82/2024,
P.S.O. Gondpipri, District - Chandrapur.
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Mr. M.V. Rai, counsel for the appellant.
Mr. C.A. Lokhande, APP for respondent No.1.
Ms. Radha Mishra, counsel (appointed) for respondent No.2.
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CORAM : URMILA JOSHI-PHALKE, J.
DATE : 01/07/2024
ORAL JUDGMENT :
1. Heard. Admit. Heard finally with the consent of
learned counsel appearing for the parties.
2. By way of this appeal, the appellant has challenged
the order passed by the Special Judge, Chandrapur in Misc.
Criminal Application No. 204/2024 by which the anticipatory bail
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application of the present appellant is rejected.
3. The appellant is apprehending arrest at the hands of
police as crime is registered on the basis of report lodged by the
victim, alleging that she got acquaintance with the present
appellant in the year 2019 when she was studying in the 10th
standard. The said friendship resulted into love affair and out of
love affair she used to communicate with him as well as they used
to roam at various places. She further alleged that appellant on
28/03/2020 took her in one agricultural field and subjected her
for sexual assault. It is further alleged that on the various
occasions and on the promise of marriage, she was subjected her
sexual assault. On the basis of said report, the police have
registered the crime.
4. After registration of the crime, he approached to the
Special Court for grant of pre-arrest bail, however, the Special
Court has rejected the application by observing that in view of bar
under Section 18 of the Scheduled Caste and Scheduled Tribe
(Prevention of Atrocities) Act (for short 'the Atrocities Act'), the
application is rejected. Being aggrieved and dissatisfied with the
same the present appeal is preferred by the appellant.
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5. The learned counsel for the appellant submitted that
as far as the allegations are concerned it shows that out of love
affair there was a physical relationship between the appellant and
the victim and also consensual sexual relationship was developed
between the victim and the present appellant. Mere breach of
promise of the marriage, is not sufficient to attract the provisions
of the Atrocities Act. In view of that, the appellant be protected by
granting anticipatory bail.
6. The learned APP and learned appointed counsel for
the victim submitted that when initially sexual assault was
committed by the applicant, at the time, victim was minor and her
consent was not relevant. They further submitted that there is a
breach of promise and the intention of the present appellant can
be gathered from the circumstances. In view of that, the appeal
deserves to be dismissed.
7. After hearing learned counsel for the appellant,
learned appointed counsel and learned APP for the State, perused
the recitals of the FIR from which it reveals that victim got
acquaintance with the present appellant when she was minor. As
per her allegation, in November-2019 present appellant expressed
his feelings and also promised her for marriage and first incidence
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of sexual assault on her was 28/03/2020. From the recitals of the
FIR it reveals that, on the promise of marriage and out of love
affair there was a physical relationship. Now, it is well settled that
mere breach of promise is not sufficient to attract the provisions of
Section 376 of the Indian Penal Code. As far as the allegation of
the Atrocities Act is concerned, there is no statement that though
the appellant was aware that she belongs to the Scheduled Caste
and Scheduled Tribes with intent to humiliate or insult her, she
was subjected her for sexual assault. It is apparent that, out of love
affair, the physical relationship was there, and therefore, the
interim protection granted to the present appellant deserves to be
confirmed. Accordingly, I proceed to pass following order:
a. In the event of arrest, the appellant - Bhashkar Balaji
Borkute shall be released on anticipatory bail, in
connection with Crime No.82/2024 registered with
Police Station Gondpipri, District Chandrapur for the
offence punishable under Sections 376, 376(2)(n),
504 and 506 of the Indian Penal Code and Sections 4
and 6 of the Protection of Children from Sexual
Offences Act, 2012 and Sections 3 (1)(w), 3(2)(va) of
the Scheduled Caste and Scheduled Tribe (Prevention
of Atrocities) Act on executing a P.R. bond in the sum
of Rs.25,000/- with one solvent surety in the like
amount.
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b. The order passed by the learned Special Judge and
Additional Sessions Judge, Chandrapur dated
03/04/2024 in Misc. Criminal Application No.
204/2024 is hereby quashed and set aside.
c. The appellant shall attend the concerned police
station as and when required for the investigation
purpose and shall produce his motorcycle for the
investigation purpose and shall cooperate with the
investigating agency.
d. The appellant shall not induce, threat or promise any
witnesses who are acquainted with the facts of the
present case.
e. Breach of any condition would lead to the cancellation
of the bail.
f. The fees of the appointed counsel be quantified as per
the Rule.
The Criminal Appeal is disposed of accordingly.
[URMILA JOSHI-PHALKE, J.]
rkn
Signed by: Mr. R.K. NANDURKAR
Designation: PA To Honourable Judge
Date: 02/07/2024 17:49:02
