1 mpt IN THE HIGH COURT OF JUDICATURE OF BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 115 of 2008 Chandrabhushan Choudhary & Anr. .. Applicants versus State of Maharashtra .. Respondent ... Mr.Gopal V. Bhagat & Waseem I. Shaikh for the applicants. Mrs.M.M. Deshmukh APP for the State. CORAM : D.G.KARNIK, J DATED : 22nd January 2008 P.C.: 1. Heard learned counsel for the applicant and learned APP for the State. 2. The applicants seek pre-arrest bail under section 438 of the Code of Criminal Procedure in respect of the offence registered against them with Central police station, Ulhasnagar under C.R. No.I-281/07 for offences punishable u/s.363, 366, 2 376 and 34 of the IPC. 3. Perusal of the FIR shows that intercourse was with consent and was on several occasions. It is however alleged that consent was obtained under a false promise to marry. The complainant knew that the person was already married. In the circumstances, the burden of proving that the consent was obtained under a false promise of marriage is on the prosecution. 4. In Uday v. State of Karnataka, reported in (2003) 4 SCC 46, the Supreme Court has held that the consent for sexual intercourse said to be obtained by false promise of marriage could be said to be no consent. given by the prosecutrix to have sexual intercourse. In para 21 of the judgment, the Supreme Court observed as follows:- "21. It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false 3 promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the courts provide at best guidance to the judicial mind while considering a question of consent, but the court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them." Furthermore, it may be noted that applicant no.1 is 4 not the person who had the intercourse. The applicant no.1 and his wife applicant no.2 are alleged to have induced the complainant to maintain the relationship with the married man. The allegation is thus that they have only abated the offence. 4. Taking an overall view of the matter and in view of the decision of the Supreme Court referred to above, I am of the view that the applicants are entitled on condition to pre-arrest bail. Hence I pass the following order:- O R D E R O R D E R O R D E R . In the event of arrest of the applicants, each of them is released on personal bond of Rs.20,000/- with one or two sureties each for making of the total amount of Rs.20,000/- subject to the condition that the applicants shall not give any inducement or threats either to the prosecutrix or to any of the witnesses and shall not tamper with the evidence and shall attend the concerned police station as and when required by the police for the purpose of investigation. 5 (D.G. KARNIK, J)