IN THE HIGH COURT OF JUDICATURE AT BOMBAY: NAGPUR BENCH: NAGPUR CRIMINAL APPLICATION NO.779 OF 2008 Ganesh Daga ..vs.. State =================================== CORAM: S.R. DONGAONKAR, J. DATE:12.3.2008 Heard Mr. V.M.Deshpande, Advocate for applicant and Mr. Fulzele, A.P.P. for state. This is an application under section 438 of Criminal Procedure Code for grant of anticipatory bail. Applicant is accused for the offence punishable under section 376 of the Indian Penal Code in Crime No.38/2008 of Police Station, Rajapeth, Amravati. The allegations against the applicant are that he had committed rape on one Savita Sanjay Vyawahare, who was married. It is alleged that she had love affair with the present applicant. Their relations continued even after the marriage of the prosecutrix - Savita who is aged about 28 years. Learned counsel for the applicant relying on 2003(4) SCC 46 Uday ..vs.. State of Karnataka, has submitted that the present case is squarely covered by the said judgment and the defence of the applicant can be accepted in the present circumstances. Considering the facts of that case and this case, it would be clear that the facts are distinguishable in the present case. The applicant is a married person. So also the prosecutrix. Sexual intercourse which was alleged to be between the prosecutrix and the present applicant was on the ground that the applicant was going to perform marriage with the prosecutrix. As the applicant was already married person, it can not be proper and legal representation, that he would be performing marriage with her and for continuing sexual relationship . In any case unless the applicant was entitled to perform marriage with the prosecutrix, his promise or even representation to that effect can not be legal. It cannot be a valid reason / representation for consent as defence for offence under section 376 IPC, much less to give shelter of anticipatory bail. for In this view of the matter, this application can not be allowed. Same is rejected. JUDGE smp.