Bombay High Court
Kamlesh S/O Tulsiram Wagadre And ... vs The State Of Maharashtra Thr. Pso, ... on 7 August, 2025
Author: Anil L. Pansare
Bench: Anil L. Pansare
2025:BHC-NAG:7730-DB
1 jg.apl 1535.2024.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, AT NAGPUR.
Criminal Application (APL) No. 1535 of 2024
(1) Kamlesh s/o Tulsiram Wagadre,
Aged 56 years, occupation lawyer,
R/o Plot no. 81, "Shivshakti Layout"
Near C.G.H.S. Colony, Sonegaon,
Nagpur, 440 025.
(2) Aditya s/o Vijay Chaudhary,
aged 30 years, occupation private,
resident of Bhagwannagar, Nagpur. ... Applicants
- Versus -
(1) State of Maharashtra, through
Police Station Officer,
Gittikhadan, Nagpur.
(2) XYZ, in Crime No. 529/2022,
(Non-applicant no. 2/Victim) ... Non-applicants/
Respondents
-----------------------------------------------------
Mr. U. P. Dable, Advocate for the applicants
Ms. S. N. Thakur, APP for the State/non-applicant no. 1
Mr. M. N. Ali, Advocate for non-applicant no. 2
-----------------------------------------------------
CORAM : ANIL L. PANSARE AND
M. M. NERLIKAR, JJ.
Date of reserving judgment : 31-07-2025
Date of pronouncing judgment : 07-08 2025
JUDGMENT
Heard.
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2. Issue Rule, returnable forthwith. Ms. S. N. Thakur, learned
Additional Public Prosecutor waives service of notice for non-applicant
no. 1 and Mr. M. N. Ali, learned Advocate waives service of notice for
non-applicant no. 2. With consent of learned counsels for the parties,
the application is taken up for final hearing.
3. By present application, the applicants are seeking to quash
charge-sheet in Crime No. 529/2022 for the offences punishable under
Sections 376(2)(n), 377, 506, 509 and 323 read with Section 34 of the
Indian Penal Code, 1860 (for short 'IPC') and Sections 3(1)(w)(i), 3(1)
(w)(ii), 3(1)(r), 3(1)(r)(s), 3(1)(s), 3(2)(5), 3(2)(5)(v) of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,
1989 (for short 'the Atrocities Act').
4. We have heard Mr. U. P. Dable, learned counsel for the
applicants, Ms. S. N. Thakur, learned Additional Public Prosecutor for
non-applicant no. 1 and Mr. M. N. Ali, learned counsel for non-applicant
no. 2.
5. Mr. Dable submits that the applicant no. 1 and non-
applicant no. 2 are both Advocates by profession. He has then invited
our attention to First Information Report (FIR) lodged on 1-9-2022 by
non-applicant no. 2. The offence allegedly occurred during the period
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from 24-3-2014 to 27-8-2022. This span of time, according to
Mr. Dable, will have to be kept in mind to understand the real intent of
the non-applicant no. 2 to lodge FIR, which culminated into filing
charge-sheet.
6. He has taken us through the FIR. According to non-
applicant no. 2, she was preparing for the examination for appointment
as Public Prosecutor and/or a Judge. The applicant no. 1 assured her
help to prepare for the examination. Accordingly, both came in contact
with each other. On 24-3-2014, applicant no. 1 came to the house of
non-applicant no. 2. Her husband had gone out of station for work.
Her daughters had gone to school. The applicant no. 1 made an
attempt to catch hold of her and to establish physical relations. She
slapped him and asked him to leave the house. Accordingly, applicant
no. 1 left the house but while doing so, he said to her that he has taken
photographs and video of what happened between the two, and
threatened her of making it viral.
7. The applicant no. 1 insisted her to be with him on the
pretext of making the photos and video viral. The applicant no. 1
accordingly in his office established repetitive physical relations with
her. In October, 2018, applicant no. 1 quarreled with her on the ground
that she did not come to meet him. At that time, applicant no. 1 made a
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phone call to her husband and said that he will make photographs and
video viral. Husband took up quarrel with non-applicant no. 2 on the
said issue. The applicant no. 1, however, continued to establish physical
relations with non-applicant no. 2.
8. In August, 2021, the non-applicant no. 2 left the house of
her husband and began residing separately. The applicant no. 1 used to
come to her house and force her into unnatural sexual act. He used to
beat her if she refused to continue physical relations. The non-applicant
no. 2 was so frightened by the threatening behaviour of applicant no. 1
that she did not disclose her suffering to anybody.
9. The FIR further indicates that applicant no. 2 was a close
associate of applicant no. 1. They used to abuse non-applicant no. 2
over the phone after consuming liquor. The applicant no. 1 used to call
her from the bar itself saying that her existence is for his sexual
satisfaction, she is a prostitute and should remain within limits, she
belong to Scheduled Caste and her place is in his foot steps. He further
stated that he can maintain ten such prostitutes and accordingly, abused
her. The non-applicant no. 2 did not disclose the abuse and sufferance
out of fear of social stigma and defamation.
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10. The non-applicant no. 2, in November, 2021, rejoined her
husband. The applicant no. 1 quarreled with her on that count also.
On 3-1-2022, in the intervening night at about 1.30 Hours, both the
applicants came to the flat where non-applicant no. 2 was residing with
her husband. Applicant no. 1 verbally abused both the non-applicant
no. 2 and her husband and called them downstairs. Upon their arrival,
the applicant no. 2 physically assaulted her husband and asked non-
applicant no. 2 to sit down on knees and apologize to applicant no. 1,
asserting that until she does so, he will continue to assault her husband.
At that time, applicant no. 1 displayed iron rod kept in the vehicle and
indicated that he should not be compelled to use it. The non-applicant
no. 2 accordingly sat down on knees and apologized applicant no. 1. At
that time, applicant no. 2 said that this is where is her and her
husband's place and should always remain within limits. Thereafter
both left the place.
11. The applicants, after some days again threatened non-
applicant no. 2 by saying that they will kidnap her family members and
will make her sit in the nude in the market and will also kidnap her
daughter and will circulate her number in entire Maharashtra, if she
does not continue relations with applicant no. 1. The non-applicant
no. 2 then informed the said fact to her husband on phone, who had
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been to Raipur for work to which he said that once he comes back, they
will lodge complaint.
12. Thereafter on 18-6-2022, applicant no. 1 again called non-
applicant no. 2 and abused her. The non-applicant no. 2 then lodged
report with police. In response, applicant no. 1 apologized and
requested to withdraw the complaint. However, thereafter applicants
continued to harass her and on 27-8-2022, they again came to the
house of non-applicant no. 2 at about 11.30 p.m. Both were under
the influence of liquor. They abused both i.e. non-applicant no. 2
and her husband, gave threat of downloading photographs. Finally,
on 1-9-2022, a detailed report was lodged.
13. The argument is that the span of relationship as mentioned
in FIR itself reveals consensual relationship and, therefore, the
ingredients of Section 376 of IPC will not be attracted.
14. We are not at all impressed with the argument. Learned
Additional Public Prosecutor has rightly submitted that the contents of
the FIR, if taken together, the forcible physical relationship at the hands
of applicant no. 1 is writ large. The applicant no. 1 not only threatened
non-applicant no. 2 but also to her husband saying that he will circulate
photos and videos. Thus, in a way, applicant no. 1 disclosed to non-
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applicant no. 2's husband of his (applicant no. 1's) desire to continue
relations. He not only forced himself on non-applicant no. 2 for
physical relations but made her to kneel down and apologize employing
assault to her husband. The manner in which the couple has been
subjected to abuse, particularly, on the count of their caste constitutes a
grave violation of fundamental rights and represents an heinous act of
atrocity.
15. Mr. Dable submits that neither photographs nor videos
were found in the mobile of applicant no. 1, seized by the police.
Accordingly, he submits that the story put forth by non-applicant no. 2
is unbelievable. In our view, one cannot jump to such conclusion
merely because photographs and videos were not found in the mobile
of applicant no. 1. Firstly, it is nobody's case that applicant no. 1
continued to possess same mobile in which he had on 24-3-2014 took
photographs and videos. There could be multiple reasons why these
details are not available. Secondly, applicant no. 1 made non-applicant
no. 2 to believe that such photographs and videos were available in his
mobile. She continued to hold this belief. Most importantly, the first
applicant also threatened non-applicant no.2's husband with the
circulation of said photographs and videos, thereby maintaining the
impression that he possessed such material. Thus, from non-applicant
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no. 2's perspective, the first applicant possessed said material. The
question here is of belief of non-applicant no. 2 of applicant no. 1's
possessing photographs and videos, which applicant no. 1 successfully
made her to believe. In the circumstances, non recovery of photographs
and videos after a span of about eight years is of no significance.
16. At this stage, learned counsel for the applicants has invited
our attention to the report lodged by the non-applicant no. 2 of the
incident that occurred on 27-8-2022. It is registered as non cognizable
report (page no. 338) describing the abuse at the hands of the
applicants. Mr. Dable contends that, if the non-applicant no. 2 had
lodged this report on 27-8-2022, she could have well lodged detailed
report on that day itself. According to him, the report that was lodged
on 1-9-2022 is an after thought.
17. We do not find substance in the argument. It will be too
early to jump to such conclusion. Whether the report lodged on
1-9-2022 is an after thought or is an outcome of unbearable sufferings
is a matter that will be revealed in trial. We are not oblivious to delayed
report in sexual harassment matters. In the circumstances, though
delay is a ground that could be relevant, is not decisive for all purposes.
Here is a case where not only sexual harassment is reported, the
repetitive verbal and caste based abuse is also relevant. We therefore,
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do not find this case to be a case where on accepting the charge-sheet
on face value, the offence is not made out. Rather, we find that offence
is well spelt out in the report which is supported by the statement of
husband of non-applicant no. 2 at least on the incident that allegedly
occurred on 27-8-2022.
18. Mr. Dable has then invited our attention to the judgment of
Hon'ble Supreme Court in the case of Pramod Suryabhan Pawar Vs.
State of Maharashtra [(2019) 9 SCC 608] where the Hon'ble Supreme
Court clarified that the relationship that is consensual over a prolonged
period, with no evidence of deception at the time of sexual act, does not
automatically amount to an offence of rape or related offences, even if,
promises of marriage were made but not fulfilled later. The Court
further clarified that the legal principle is that a false promise of
marriage made with intent to deceive, and which significantly
influences consent, can vitiate consent and support charges of rape,
whereas consensual relationship over time, without evidence of initial
deception, does not necessarily constitute an offence.
19. Thus, the above case is based on sexual relationship on
false promise of marriage. Such is not the case here. Nonetheless, the
judgment has been cited to contend that the prolong period, for which,
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the parties indulged into sexual relationship, an offence of rape is not
made out.
20. In our view, the judgment will be of no help to the
applicants in as much as the manner in which the non-applicant no. 2
has put forth her apathy which to certain extent is supported by her
husband on incident of abuse, show that the applicant no. 1 continued
sexual assault by putting non-applicant no. 2 under threat. This case
appears to be one where non-applicant no. 2 when failed to continue
physical relationship, the applicants abused and assaulted the couple to
obtain consent. Further, the repeated abuse to the couple based on
their caste, amounts to separate limb of offence.
21. Another judgment, which Mr. Dable took help of is
judgment of Coordinate Bench of this Court in the case of Siddhodhan
alias Sudhodan s/o Namdeorao Kurule Vs. State of Maharashtra
[2023(2) Mh.L.J. (Cri.) 686] where the Court while quashing the
charge-sheet and FIR under Section 376 of IPC noted that the informant
therein herself has in supplementary statement disclosed that the
accused was her neighbour and was regularly visiting her house and
helped her many times. The relations were such that she had even
entrusted her ATM card to the accused. The Court also noted that
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theory put forth by informant was doubtful in as much as the
allegations of informant that accused has forcibly taken ornaments were
found to be apparently false because the jeweler to whom the
ornaments were mortgaged stated that both the informant and accused
had been to his shop for mortgaging ornaments and that it is informant
herself, who has handed over the ornaments. Thus, the version of
informant was found to be doubtful. Further, the relations were such
that showed confidence of informant in the accused and in such
circumstances, the long standing association was considered to be
nothing else but consensual relationship.
22. In the present case, there is nothing on record to indicate
such willful association between the applicant no. 1 and non-applicant
no. 2. The association appears to be one sided relationship, particularly
on the point of physical relations. Further, the caste based abuse by
both the applicants that required non-applicant no. 2 to kneel down
to apologize the applicant no. 1 will add to the theory of forcible
relationship between the parties.
23. That being so, we are no inclined to grant any relief, much
less, quashing the charge-sheet and FIR. The application is accordingly
rejected.
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24. The trial Court shall, however, continue with the
proceedings without getting influenced by the observations made in the
body of the order, which are made only in context with the prayers
made by the applicants to quash the proceedings.
25. The application is disposed of in above terms.
(M. M. NERLIKAR, J.) (Anil L. Pansare, J.)
wasnik
Signed by: Mr. A. Y. Wasnik
Designation: PS To Honourable Judge
Date: 07/08/2025 17:51:44
