(1) CRI.APP. 3724.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 3724 OF 2010 1. Santosh S/o Raising Chavan, Age : 24 years, Occu.: Agri., R/o Harsool Jail Quarters, At Harsool, District : Aurangabad 2. Raising S/o Roopsing Chavan, Age : 59 years, Occu.: Agri., R/o Harsool Jail Quarters, At Harsool, Dist. Aurangabad .. Applicants VERSUS 1. The State of Maharashtra Copy to be served on the Public Prosecutor High Court of Bombay, Bench at Aurangabad 2. The Police Commissioner, Aurangabad, Police Commissioners Office, Mill Corner, Aurangabad 3. The Police Station Incharge, Police Station, Begumpura, Aurangabad 4. Sunita d/o Jamnaji Shelar, Age : 26 years, Occu.: Private Service, Resident of at Badi Sadak, Deolgaon Raja Road, Jalna Taluka and District : Jalna .. Respondents Mr. N.K. Kakade, Advocate h/f. Mr. Amol N. Kakade, Advocate for the Applicants Mrs. B.R. Khekale, APP for the respondent-State ... (2) CRI.APP. 3724.2010 CORAM : V.R. KINGAONKAR, J. DATED : 30TH SEPTEMBER, 2010 ORAL ORDER:- 1. By this Application, the applicants seek direction under section 438 of the Code of Criminal Procedure. 2. The applicant no.1 is son of the applicant no.2. The applicant no.2 used to reside in the residential quarter situated within the campus of Central Jail, Aurangabad. He was working as Head Constable till recently. The allegation made by the prosecution is that the prosecutrix, used to work as a saleswoman, came in contact with the applicant no.1 during the course of her work as door to door saleswoman. He allured her to marry and committed sexual intercourse with her from time to time. She became pregnant due to sexual relationship with him. When she was carrying four months pregnancy, somewhere in July, 2010 she went to residential house of the applicants and requested the applicant no.2 that he shall allow marriage between herself and the (3) CRI.APP. 3724.2010 applicant no.1 because she was impregnated by him. Allegedly, the applicant no.2 insulted her by saying that she was of inferior caste and declined the proposal of the marriage. She was ousted from the house and thereafter lodged the report. 3. Mr. Kakade would submit that FIR is an afterthought and fabricated. He would submit that the applicant no.2 had filed complaint against the prosecutrix by filing Application dated 21.8.2010 because she used to give threats on her cellphone for the purpose of extracting easy money. It is argued that the prosecutrix desired to blackmail the applicants and as such lodged false report. 4. Perusal of the investigation papers purport to show that there is prima facie evidence to show frequent visits of the prosecutrix to the house of the applicants. It prima facie appears that the prosecutrix came in contact with the applicant no.1 who used to remain present in the residential quarter while pursuing his studies, whereas the applicant (4) CRI.APP. 3724.2010 no.2 used to attend the duty. The applicant no.1 seems to have enjoyed the sensual pleasures, probably with the consent of the prosecutrix, and therefore she became pregnant. It is probable that she was a consenting party but the question is whether the consent was on account of false promise given by the applicant no.1 to marry her. This aspect requires appropriate investigation. Mere fact that the applicant no.2 lodged some report against the prosecutrix on 21.8.2010 by itself cannot be regarded as sufficient ground to stamp the FIR lodged by the prosecutrix as false one or filed in order to extract some easy money from the applicants. 5. Sofar as role of the applicant no.2 is concerned it emerges from the recitals of the FIR and investigation papers that he was annoyed due to the insistence of the prosecutrix to allow marriage between applicant no.1 and the prosecutrix. He did not commit any overt act except the alleged act of giving threats whereby the prosecutrix was told to go back and not to visit the house again. The applicant (5) CRI.APP. 3724.2010 no.2 seems to have filed the application against the prosecutrix by way of retaliation because the prosecutrix was asking him to allow the marriage. His application itself shows that the prosecutrix used to contact him on the mobile phone. 6. Having regard to the nature of allegations made against the applicants, the Application is partly allowed only to the extent of applicant no.2 because he has no direct concern with the alleged offence of rape nor there is prima facie evidence to infer insult of the prosecutrix on the ground of her being member of scheduled caste. Hence, the Application is partly allowed and the applicant no.2- Raising Chavan is directed to be released on bail in the event of arrest on furnishing of bail bond in sum of Rs.15,000/- (Rs.Fifteen Thousand) before the Arresting Officer. 7. The Application to the extent of applicant no.1-Santosh Chavan stands dismissed. The applicant no.2-Raising Chavan shall not contact any of the (6) CRI.APP. 3724.2010 prosecution witness and shall make no attempt to tamper with the evidence of the prosecution. Application disposed of accordingly. Sd/- [V.R. KINGAONKAR, J.] arp