1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. CRIMINAL APPLICATION NO.: 2667 OF 2009 Vandana D/o Fulchand Sathe Versus State of Maharashtra and another *** Mr. , Advocate for the Applicants. Mr. , A.P.P. for the Respondent/ State. *** CORAM: K. U. CHANDIWAL, J. DATED: 22nd SEPTEMBER, 2009. 1. The application is moved by Vandana for cancellation of bail to the accused for whom Mr. Patil appears. Heard Mr. Jivan Patil and Mr. N. P. Patil Jamalpurkar for the respective parties. 2. The learned Adhoc Additional Sessions Jude 3, Latur, by order dated 20th June, 2009 for an offence under section 376, 420 in Crime No.43 of 2009, directed release of the accused Pappu alias Amar, is subject of criticism by the victim. 2. The counsel for the victim contended and not now controverted that the victim was born on 26th January, 1992 for which there is bonafide certificate 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. issued by Shri Vidya Niketan School, Jawalga, Taluka Ausa. Mere calculation of the events, as narrated by the prosecutrix in her F.I.R. dated 6th June, 2009 illustrated that the sexual abuse to her was two years prior to 6th June, 2009 and naturally it should be some where in 2007 which indicate that the victim was postulating between 15 years to 15 years six months but by no calculation it will be exceeding 16 years. 3. The observation of the learned Adhoc Sessions Judge, on this count are apparently illusory. He emphasised more on the F.I.R. as to its general character about the so called events of sexual abuse, oblivious to the fact that the victim could not be a consenting party in the year 2007 and infraction in terms of section 375 Secondly and Sixthly will be attracted. 4. The counsel for the victim while criticising the judgment has said that the victim was not a 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. competent to record consent. I find substance in it. 5. Counsel took reference to the judgment in the matter of "Pradeep Kumar Verma V/s State of Bihar and another" AIR 2007 SC 3059 wherein the Apex Court, having referred to the definition of "consent" in terms of section 90 coupled with section 375 of IPC observed: "20. The first two sentences in the above passage need some explanation. While we reiterate that a promise to marry without anything more will not give rise to misconception of fact within the meaning of Section 90, it needs to be clarified that a representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent. If on the facts it is established that at the very inception of the making of promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no 4 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. avail to the accused to exculpate him from the ambit of Section 375 clause second. This is what in fact was stressed by the Division Bench of the Calcutta High Court in the case of Jayanti Rani Panda's case (supra) which was approvingly referred to in Uday's case (supra). The Calcutta High Court rightly qualified the proposition which it stated earlier by adding the qualification at the end - unless the court can be assured that from the very inception the accused never really intended to marry her. (emphasis supplied). In the next para, the High Court referred to the vintage decision of the Chancery Court which laid down that a misstatement of the intention of the defendant in doing a particular act would tantamount to a misstatement of fact and an action of deceit can be founded on it. This is also the view taken by the Division Bench of the Madras High Court in Jaladu case (vide passage quoted supra). By making the solitary observation that a false promise is not a fact within the meaning of the Code, it cannot be said that this Court has laid down the law differently. The observations following the aforesaid sentence are also 5 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. equally important. The Court was cautious enough to add a qualification that no strait- jacket formula could be evolved for determining whether the consent was given under a misconception of fact. Reading the judgment in Uday's case as a whole, we do not understand the Court laying down a broad proposition that a promise to marry could never amount to a misconception of fact. That is not, in our understanding, the ratio of the decision. In fact, there was a specific finding in that case that initially the accused's intention to marry cannot be ruled out." 6. The learned counsel for the accused, at the same time took recourse to the judgment in the matter of "Uday V/s State of Karnataka" [AIR 2003 SC 1639) in which benefit of the situation was given to the said accused Uday. 7. The distinction in the matter of Uday and present matter is very cogent. In the case of Uday the victim was already a grown up girl, studying in college. She was deeply in love with the accused. 6 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. She was aware that both belong to different category of caste and the marriage was not a possible event. While in the present case, the victim apparently was a minor and could not record her consent to the sexual abuse or for entering into a marital status. 8. The cancellation of bail, already granted, since affects liberty of a citizen, the Court should be slow to entertain such application. However, when there is apparent miscarriage of justice and none-application to the facts in itself require direction, the interference is an imperative situation. F.I.R. as has been stated time and again could not be an encyclopedia or a thesis of all the events. The learned Judge apparently swayed by observing about the causalities referred in the F.I.R. without considering that the medical evidence supports to what the victim has stated. The age relaxation of two years referred by the learned Judge in his order at para 7 also is uncalled for. Consequently, the grant of bail is perverse and 7 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. requires interference. Hence, the order. 9. The accused Pappu alias Amar, residing at Haregaon, Taluka Ausa, district Latur to surrender to the concerned police in Crime registered with Killari Police Station, Taluka Ausa up to 6th October, 2009. Bail stand cancelled. Liberty to the accused to move for grant of bail. 10. Needless to add, the learned Sessions Judge, will independently assess the evidence to arrive at conclusion, on merits of bail application proposed to be moved by the accused. [K. U. CHANDIWAL, J.] Dated:22/09/2009. ans/2667