jpc aba120-11.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION ANTICIPATORY BAIL APPLICATION NO. 120 OF 2011 Kishore Sadashiv Wahane ... Applicant Versus The State of Maharashtra ... Respondent Mr. Sirish Gupte, Senior Advocate i/by Mr. S. P. Kadam for the applicant Mrs. S. D. Shinde, APP for the State Mrs. S. A. Dhamale, for the First Informant. CORAM:- A.M. THIPSAY, J. DATED :- 29th June, 2011. P.C. : 1. The applicant is sought to be arrested in C.R. No. 23 of 2011 registered at Upnagar Police Station, Nashik, which is in respect of an offence punishable under section 376 of the Indian Penal Code. 2. The case of the first informant-victim- is, in brief, as follows: i. That the victim has been employed as computer operator in the CPWD Office at Gandhinagar Nashik since May, 2010. She had gone to the said office for interview on 14th May, 2010, where she met the applicant who, at the material time, was working in the said office as Executive Engineer. The victim was interviewed by the applicant and was appointed on jpc aba120-11.sxw 2 contract basis. The applicant, who was the administrative incharge of the said office, used to call the victim from time to time and used to enquire about her family etc. On learning that the financial condition of the victim's family was not good, the applicant assured to her that he would improve the same. The applicant tried to develop close relationship with the victim, the details of which have been mentioned in the First Information Report. ii. In the month of October, 2010, the applicant called the victim in his cabin and proposed that she should keep physical relations with him, and that, he would not disclose to anyone about such relationship. The victim did not like this and expressed her displeasure to the applicant. The applicant thereafter asked the victim to come with him to his residence and when the victim resisted, he threatened that if she would not accompany him, he would remove her from the job. The victim was frightened and went to his house along with him. There was nobody else in the house. The applicant is then alleged to have committed rape on her. iii. Since the victim was threatened by the applicant, she did not disclose the incident to anyone. However, she did not go for jpc aba120-11.sxw 3 her duties for 2/3 days thereafter. The applicant then contacted her on her mobile phone and enquired as to why she was not coming for duties. When the victim said that if the applicant would do such heinous act, she would give up the job, the applicant persuaded her to resume the duties by saying that such things happen in the lift and reminded her of her family's poor financial condition and that she would come out of that poverty. The victim resumed her duties after 2/3 days. iv. Thereafter, again in the month of December,2010, the applicant committed rape on the victim. The applicant then started making demands for sexual intercourse repeatedly and therefore, ultimately, the victim, disclosed the matter to her mother. Thereafter, the First Information Report came to be lodged on 31st January, 2011. 3. I have heard Mr. Shirish Gupte, the learned senior advocate for the Applicant, Mrs. Newton, the learned APP for the State and Mrs. Dhamale, the learned Advocate for the First Informant, who was permitted to make submissions and oppose the Bail Application. 4. I have gone through the Bail Application and the annexures jpc aba120-11.sxw 4 thereto. The victim has filed two affidavits, opposing the application. 5. Mr. Gupte contended that the allegations levelled in the First Information Report are not believable. According to him, there has been a delay in reporting the matter to the police. He also submitted that the applicant had been helping the victim financially and the victim has perhaps lodged a false report, when the amounts given to her by the applicant were demanded back. He also submitted that the victim has been making gradual improvements in her case by filing subsequent two affidavits. He also submitted that the applicant was possessing some record i.e. a diary in the handwriting of the victim, in which she has expressed her high opinion and gratitude towards the applicant. Copies of the relevant pages of the diary have been annexed to the application. Lastly, Mr.Gupte submitted that even assuming that there was some physical relationship between the applicant and the victim, the case would not be of rape. According to him, in any case, the detention of the applicant in custody is not necessary particularly, because the applicant has already attended the police station for sufficient length of time and has not committed any breach of any of the conditions imposed by the Court while passing interim order of anticipatory bail in his favour. It is also submitted that the applicant, during the pendency of the application, has been jpc aba120-11.sxw 5 transferred to Calcutta and, therefore, there would be no possibility of his tampering with the witnesses. 6. I have carefully considered the matter. The fact that the applicant was financially helping the victim cannot be doubted; and as a matter of fact, it is an admitted position. It is also clear that the applicant had obliged the victim by giving job to her father. It also appears that the applicant took active interest in helping the victim financially and had also brought her father and other members of her family to Mumbai for the purpose of getting the father treated in KEM Hospital. The applicants conduct appears to have gone beyond a simple desire to help a subordinate and appears to be calculated towards burdening the victim with obligations. In this back ground, the possibility of the applicant being in position to dominate the will of the victim to such an extent so as to prevent her from putting up an effective resistance to the act of sexual intercourse, though unwanted, cannot be ruled out. The favours showered on the victim by the applicant could be, in all probability, with that object itself. 7. The victim has sought to explain the contents in the diary, in the second affidavit filed by her. According to her, that diary was got written by the applicant himself from her. Though such disclosure is coming from the victim at a late stage, after examining the matter in jpc aba120-11.sxw 6 the diary, the possibility of the victim's version being true appeals to me. Examination of the relevant pages of the diary shows that at one place where the date, on which her father was operated, was intended to be written, has been left blank. No one would write a personal and private diary in such a manner. After considering the matter written in the relevant pages of the diary together with the fact that the explanation as to how the pages from the personal diary of the victim went to the applicant, does not seem to be satisfactory, the possibility of the same having been got written from the victim by the applicant, seems quite probable. 8. After carefully considering all the material that is available to the investigating agency, it cannot be said that there exits no prima facie case against the applicant. The question is now, whether, in such circumstances, the applicant should be granted anticipatory bail. 9. It is true that that the applicant has been protected by an interim order for quite some time, but, looking to the nature of the offence, I am not inclined to exercise the discretion of the Court, as regards the anticipatory bail, in favour of the applicant. It may be observed that the applicant's social status and position is much above than that of the victim. The applicant appears to have acted with deliberation and planning and apparently had taken precautions to jpc aba120-11.sxw 7 see that the allegations against him, if made, would be rendered doubtful in view of the pages in the victim's diary. The victim apparently could gather courage to make report only after the the support of her family. In these circumstances, granting anticipatory bail to the applicant is likely to affect the victim adversely and consequently the investigation, that is required to be carried out, would be affected. I am , therefore, not inclined to grant anticipatory bail to the applicant. 10. The application is rejected. 11. At this stage, Mr. Gupte submits that since the applicant has been protected for quite some time during the pendency of the present application, the interim protection be continued for some further period for the purpose of enabling him to approach the Supreme Court of India. This prayer is reasonable and should be granted. 12. The interim order of bail shall remain in force till 13th July, 2011, notwithstanding the dismissal of the Anticipatory Bail application. (A.M. THIPSAY, J.)