1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.899 OF 2010 Mr.Vaibhav R. Dalvi. ..Applicant. Vs. State of Maharashtra. ..Respondent. Mr.Nilesh Pawaskar for the Applicant. Mrs.A.A.Mane, APP. for the State. Mrs. Gayatri Singh with Gayatri Shahane for the original complainant. CORAM : R.S. MOHITE, J. DATE : 19th March, 2010 PC : 1 This is an application for anticipatory bail made by the applicant who is shown as an accused in C.R.No.45/2010 registered by Borivali Police Station for alleged offence under Section 376 of the Indian Penal Code. The complainant is one Shilpa Shah who is major aged about 25 years. On perusal of the F.I.R., it appears that the complainant and the present applicant were working in the same company by name Eagle Courier . The 2 company had one office at Andheri (E) and there were several persons working in the said office. The complainant in her F.I.R. narates that on 18.10.2007 at 7.00p.m. she had been to the office at Andheri in order to deliver a letter. The present applicant was a Manager working in this office. When she met him in the office, the applicant told her that he was not getting along with his wife and was not having any physical relationship with her. He told the complainant that he was fond of the complainant and would marry her and under such assurance, the complainant agreed to have sexual relationship with him and in fact they had physical relationship on that day. Complainant mentions in her own FIR that thereafter from October, 2007 till December, 2008 they used to visit hotels and had intercourse. On all these occasions, the applicant used to promise to marry her. She admits that during this period on 21.3.2008 they had been to stay at Matheran and had stayed there for two days. It is her contention 3 that during this period they had intercourse. It is her case that at the instigation of the applicant she married a dummy husband by name Nilesh who was staying near her house. She brought this boy in the home and presented him to her family as her husband. Thereafter, she went to stay along with the applicant in premises which were taken by him on leave and licence. 2 To cut a long story short, in due course since the applicant did not divorce his first wife, she involved her sister who went to meet the applicant s wife and since the dispute was not resolved, this complaint appears to have been fled on 28.1.2010. 3 I have heard the Advocate for the applicant as also the A.P.P. and the Advocate for the complainant. On behalf of the complainant, the learned Advocate contended that an offence of rape is a very serious crime and the court should not 4 grant anticipatory bail because the crime is serious in nature. It is true that normally courts would not grant any protection when a serious crime such as one under Section 376 is alleged. However, the facts of this case indicate that the consent to intercourse is admitted in the F.I.R. itself. The only point which is required to be decided is as to whether such consent was obtained by any mis- representation on the part of the present applicant. The F.I.R. itself clearly narrates that the applicant had told the complainant that he was a married person. The complaint does not indicate that she was love with the applicant or wanted to marry him herself. The Complainant in this case is an adult person who has voluntarily gone along with the representation and has voluntarily accepted the representation and caused a grevious wrong to the wife of the applicant. It is contended that the applicant himself is not a innocent person and has cheated his wife. In my view this is a case where both the applicant and the complainant are 5 adult persons who are gainfully employed and are equally responsible for their actions. Apart from this, the evidence in this case consist principally of the complainant herself. There is no medical evidence. As intercourse by consent has been admitted for more than last two years and such admission can be found in the F.I.R. Itself, in my view, in the peculiar facts of this case, investigation can be completed without the custody of the present applicant. Grievance is made that the applicant has pressurized and assaulted the complainant. If any complaint in that regard is registered by the police then that issue will be dealt with separately. However, to minimise any such possibility, I propose to impose certain conditions upon the applicant. In the circumstances, application is allowed. 4 It is directed that in the event of arrest in connection with C.R.No.45/2010 registered by Borivali Police Station, the applicant will be 6 released on bail in the sum of Rs.20,000/- with one surety in the like amount subject to the condition that he will report to the Investigating Officer, Borivali Police Station once in a week on every Monday between 6.00p.m. to 7.00p.m. till the charge-sheet is filed. He will also not contact the complainant either on telephone or otherwise and will not make any attempt to influence her. It is made clear that if any grievance in this regard is made then stringent action including action regarding cancellation of this bail may be taken by this court. Application is disposed off. ( R.S. MOHITE, J.)