1 mpt IN THE HIGH COURT OF JUDICATURE OF BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 145 of 2008 Abhijeet Sharad Patil .. Applicant versus State of Maharashtra .. Respondent ... Mr.Shirish Gupte i/b V.A.Sugdare and Vijay Patil for the applicant. Mr.D.P.Adsule APP for the State. CORAM : D.G.KARNIK, J DATED : 28th February 2008 P.C.: 1. Heard. 2. By this application under section 439 of the Code of Criminal Procedure, the applicant seeks bail in respect of an offence registered against him under C.R. No.I-116 of 2007 with Vithalwadi, Ulhasnagar police station punishable u/s.376 of the IPC. 3. First Information Report was lodged by the 2 victim girl on 18th September 2007. Investigation has been carried out. Charge-sheet has been filed and case is committed to the Sessions Court. The applicant applied for bail to the Sessions Court, which was rejected by it by an order dated 3rd December 2007. Hence the applicant has approached this Court by an application under section 439 of the Code of Criminal Procedure. 4. The prosecution case is that the applicant was a teacher and the prosecutrix used to go to his house for taking private tuitions. In October 2006, taking advantage of the fact that other two co-students had not come and there was no one in the house, the applicant forcibly raped the victim girl. She, however, did not complain to anybody because after the rape the applicant promised to marry her. Afterthe first incidence of October 2006 the applicant with her consent had intercourse with the victim on several occasions till April 2007. The victim according to her complaint, consented for the same on account of the false promise of marriage. In February 2007, victim became aware that she was pregnant. She along with her mother and the applicant had an abortion performed at Asha Hospital on 27th April 2007. Live girl foetus was delivered but the same died within hours. The foetus appears 3 to have been disposed of by the mother of the girl. Thereafter when the victim asked the applicant to marry her he refused and therefore she filed First Information Report on 18th September 2007 4. As per the prosecution case, the first intercourse was had in October 2006 without the consent of the victim. All subsequent acts of sex were with the victim’s consent which is alleged to have been obtained by a false promise of marriage. As regards the first act of intercourse there is gross delay of nearly a year in filing of the First Information Report. As regards the allegation that the consent was obtained for subsequent acts of intercourse on a false promise of marriage, it is a question of fact whether the applicant had ever promised to marry her and obtained her consent under the false promise of marriage. However, prima facie, the fact that the parties went to a hospital for abortion militates the promise of future marriage. However, it would be hazardous to express any final opinion on this aspect pending trial. 5. Charge-sheet has been filed and investigation is complete. The applicant has a permanent place of residence at Ulhasnagar and no apprehension was ever expressed by the prosecution 4 that applicant would flee and avoid trial in the event he is released on bail. Detention in custody pending trial is never punitive. No useful purpose would be served by keeping the applicant in jail pending trial. No doubt the offence, if proved, is a serious offence punishable with imprisonment for life or imprisonment upto 10 years and is very reprehensible in as much as it committed by a teacher against a pupil. However taking an overall view and taking into consideration the consensual nature and also taking into consideration the fact that the trial is not likely to be over in the near future, the applicant can be granted conditional bail. Hence, I pass the following order:- O R D E R O R D E R O R D E R . The applicant is granted bail in the sum of Rs.30,000/- with two sureties of the like amount subject to the following conditions that the applicant (i) shall not make any inducement nor threats to any of the prosecution witnesses and (ii) shall not change the place of residence without prior intimation to the police as well as to the Sessions Court and (iii) shall attend the Sessions Court on every date fixed for trial. 5 (D.G. KARNIK, J)