Bombay High Court

Xyz vs The State Of Maharashtra Through Pso Ps ... on 11 March, 2025

2025:BHC-NAG:2619


               J.53.appeal.484.24.odt                                             1/9


                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                               NAGPUR BENCH, NAGPUR.

                               CRIMINAL APPEAL NO.484 OF 2024

                      XYZ (Crime No.56/2024)
                                                                         ...APPELLANT

                                                  VERSUS

               1.     State of Maharashtra,
                      through PSO, Police Station,
                      Kapil Nagar, Nagpur

               2.     Vijayprakash @ Pankaj s/o
                      Ramnarayan Gupta,
                      Aged about 35 years,
                      R/o. Plot No.82,
                      Dipak Nagar, Kapil Nagar,
                      Nagpur
                                                                       ...RESPONDENTS
               _______________________________________________________

                      Ms V.B. Manvatkar, Advocate for the appellant.
                      Mrs. H.N. Prabhu, APP for the State.
                      Mr. A.S. Band, Advocate for respondent No.2.
               _______________________________________________________

                                           CORAM : URMILA JOSHI-PHALKE, J.
                                           DATED : MARCH 11, 2025.

               ORAL JUDGMENT :

ADMIT. Heard finally with the consent of learned Counsel

for the parties.

2. By preferring this appeal, the appellant who is the original

complainant has challenged the order passed by the Special Court

granting bail to present respondent No.2 in Special Case No.209/2024

by passing the order below Exhibit-3 on 12/06/2024 allowing the

application and releasing him on bail on executing P.R. Bond of

Rs.1,00,000/- with solvent surety in the like amount.

3. The brief facts, which are necessary for the disposal of the

appeal are as under:

A] The crime No.56 of 2024 is registered on the basis of the

report lodged by the victim aged about 40 years for the offence

punishable under Sections 376(1), 506(2), 504 of the IPC and Sections

3(1)(W)(i)(ii), 3(2)(v), 3(1)(r) and 3(1)(s) of the Scheduled Caste and

Scheduled Tribes (Prevention of Atrocities) Act, 1989.

B] It was alleged that the victim got acquaintance with the

present appellant and present appellant projected himself that he is of a

'Brahmin' community and also expressed his feelings to her. Thereafter,

they started communicating with each other and love relationship was

developed between them. On 29/08/2023, on the promise of marriage,

he subjected her for the forceful sexual assault and subsequent thereto

on multiple occasions. On the basis of the said report, police have

registered the crime against the present appellant. During investigation,

the present appellant was arrested on 21/03/2024. He applied for the

grant of bail and the learned trial Court considered that there was a love

affair between the victim and the present appellant and the FIR alleges

that the accused had forcible sexual intercourse with the victim on the

pretext of marriage but the said incident remained unreported for more

than five months and that too without any reasonable grounds and by

considering that it is a consensual relationship, released him on a bail.

4. Being aggrieved and dissatisfied with the same, present

appeal is preferred for cancellation of bail on the ground that the

appellant has suppressed the fact regarding his criminal antecedents.

The further ground raised is that he has not abided with the condition

imposed by the trial Court and the trial Court has not considered the

material aspect while releasing him on bail, and therefore, the bail

granted to the present appellant deserves to be cancelled.

5. Heard learned Counsel for the appellant/victim. She

reiterated the contention that the victim was represented by the present

appellant that he is unmarried person and on the promise of marriage he

subjected her for the forceful sexual assault. Thus, under the

misconception of fact, her consent was obtained and she was subjected

for the forceful sexual assault. This aspect is not considered by the trial

Court while releasing the present appellant on bail. Moreover, the

appellant has suppressed the fact regarding his criminal antecedents.

Thus, considering that the material considerations are ignored by the

trial Court while releasing him on bail. The bail granted to him deserves

to be cancelled.

6. Learned APP supported the contention of the

appellant/victim whereas learned Counsel for respondent No.2 strongly

opposed the said appeal on the ground that on merits considering the

nature of the relationship between the victim and the present appellant,

learned trial Court by observing that it is a consensual relationship,

granted the bail. He further submitted that the law regarding the

cancellation of bail and it is well settled that considerations for grant of

bail and cancellation of bail are different. There are no supervening or

the overwhelming circumstances brought on record for the cancellation

of bail. In view of that, the appeal is devoid of merits and liable to be

dismissed.

7. I have heard learned Counsel for both the sides. Perused the

recitals of the FIR from which it reveals that the FIR is lodged by the

victim after five months of the incident, alleging that the present

appellant projected himself as an unmarried person. Thereafter love

relationship was developed between them and on the promise of

marriage, the present appellant has subjected her for the forceful sexual

assault. During the investigation, such statement of the various

witnesses, including the statement of the friend of the victim, is also

recorded who was aware about the relationship of the present appellant

with respondent No.2. The statement of the friend also shows that there

was a love affair between the victim and respondent No.2 and out of

that love affair, it was disclosed by the victim to her that she had the

physical relationship with present respondent No.2. Thus, the entire

investigation papers show that, out of love affair, they come together and

physical relationship was developed between them. Now, this aspect

regarding whether it is a breach of promise or intentionally under the

misconception of fact, the victim was subjected for the sexual assault is

settled by the Hon'ble Apex Court in the case of Dr. Dhruvaram

Murlidhar Sonar Vs. The State of Maharashtra & Ors. in Criminal Appeal

No.1443/2018 (Arising Out Of S.L.P. (Criminal) No.6532 Of 2018) in

para number 20 which reads as under:

"20. Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the later falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made

the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 of the IPC."

8. Thus, considering the various statements of the witnesses,

including the statement of the victim and her friend it reveals that out of

love affair, the physical relationship was developed between the victim

and responded No.2. As far as the law regarding the cancellation of bail

is concerned, it is well settled that the considerations for grant of bail

and cancellation of bail are different. As far as the cancellation of bail is

concerned the considerations for cancellation of bail are considered by

the Hon'ble Apex Court in catena of decisions including Myakala

Dharmarajam & Ors., v. State of Telangana & Anr., [(2020) 2 SCC 743],

wherein it is held that "it is trite law that cancellation of bail can be done

in cases where the order granting bail suffers from serious infirmities

resulting in miscarriage of justice. If the court granting bail ignores

relevant material indicating prima facie involvement of the accused or

takes into account irrelevant material, which has no relevance to the

question of grant of bail to the accused, the High Court or the Sessions

Court would be justified in cancelling the bail.

9. In Deepak Yadav vs. State of Uttar Pradesh and another

[(2022) 8 SCC 559] wherein also it is held that "there is certainly no

straight jacket formula which exists for courts to assess an application

for grant or rejection of bail but the determination of whether a case is

fit for the grant of bail involves balancing of numerous factors, among

which the nature of the offence, the severity of the punishment and a

prima facie view of the involvement of the accused are important.

10. The Hon'ble Apex Court laid down illustrative

circumstances where the bail can be cancelled are as follows:

a) Where the court granting bail takes into account

irrelevant material of substantial nature and not trivial

nature while ignoring relevant material on record.

b) Where the court granting bail overlooks the influential

position of the accused in comparison to the victim of abuse

or the witnesses especially when there is prima facie misuse

of position and power over the victim.

c) Where the past criminal record and conduct of the

accused is completely ignored while granting bail.

d) Where bail has been granted on untenable grounds.

e) Where serious discrepancies are found in the order

granting bail thereby causing prejudice to justice.

f) Where the grant of bail was not appropriate in the first

place given the very serious nature of the charges against

the accused which disentitles him for bail and thus cannot

be justified.