1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application (ABA) No.407/2011 ( Nilesh s/o Nana Sargar ..Vs.. State of Maharashtra, through P.S.O. Pusad (Rural), Tq. Pusad, District Yavatmal ) Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. K.S. Narwade, Adv. for applicant. Mr. D.M. Kale, A.P.P. for State/respondent. CORAM : M.N. GILANI, J. DATED : 1.12.2011. 1. This is an application under section 438 of the Criminal Procedure Code for issuing directions to release the applicant/accused on bail in the event of his arrest in Crime No.88/2011 registered with the police station Pusad (Rural), Distt. Yavatmal for the offence punishable under sections 376, 506 read with 34 of the Indian Penal Code and 3(1) (X)(XII) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 2. The applicant owns land in village Gajipur. The complainant (prosecutrix) was used to work in the field of the applicant and as such she got acquainted with him. The applicant and the prosecutrix are unmarried. 2 3. It is alleged in the F.I.R. by the prosecutrix that the accused started making advances towards her and was posing that he was in love with her. Thus they established physical relationship. The affairs continued. The applicant had promised the prosecutrix that he would marry her. Believing upon him, the prosecutrix allowed him to have sexual intercourse with her. Then she had disclosed to the applicant that she was carrying pregnancy from him. The applicant assured that there was nothing to worry since he had decided to marry her. When the pregnancy advanced, the applicant threatened her that if she discloses the same to anybody, she would be killed. As such the prosecutrix was left in lurch. 4. On 13/8/2011 she delivered a child. Seeing that it was illegitimate child and the applicant was not coming to her help, she decided to abandon the child. The child was traced out and thereafter the link was established. 5. It is further alleged that the elder brother of the applicant had visited her house and threatened that she and her family members would be killed if she discloses about her relationship with the applicant. Since she belongs to schedule tribe, the offence under the Scheduled Caste and Scheduled 3 Tribes (Prevention of Atrocities) Act, 1989 was also registered. 6. The application moved under section 438 of the Criminal Procedure Code before learned Additional Sessions Judge, Pusad was rejected so far as it relates to the applicant. 7. It is the contention of learned counsel for the applicant that the rejection of the application under section 438 of the Criminal Procedure Code by learned Additional Sessions Judge is mainly on the ground that the offence falls under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. He relied upon the decision in case of Ramchandra Govindrao Watkar and another V/s. State of Maharashtra reported in 1995 (2) Mh.L.J. 669 and decision in case of K.P. Thimmappa Gowda V/s. State of Karnataka reported in AIR 2011 Supreme Court 2564. 8. On perusal of the F.I.R., which prima facie suggest that the applicant/accused duped a gullible tribal girl. He continued to have physical relationship with her by promising that he would marry her. When she conceived, he threatened her and thereafter also hurling of threats continued. Because of the attitude of the applicant, there was no alternative for the prosecutrix than to abandon the child that means to indulge in 4 commission of the offence. In that light of the matter, the discretion of granting pre-arrest bail to the applicant/accused cannot be exercised. This is a case where victim is poor tribal girl and the accused – landowner was always in dominating position. He took disadvantage of the situation and made the prosecutrix to believe that he would marry her. In that light of the matter, the decision in K.P. Thimmappa Gowda, cited supra, cannot be applied to the facts of the present case particularly, when this Court is dealing with the application 438 Criminal Procedure Code. 9. The application is rejected. JUDGE Tambaskar.