BA- 1733/2022
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MHCC020093982022
IN THE COURT OF SESSIONS FOR GREATER MUMBAI
AT MUMBAI
CRIMINAL BAIL APPLICATION NO.1733 OF 2022
(CNR NO.MHCC020093982022)
IN
C.R.NO. 57 OF 2022
Munaf Abdul Rehman Lambe
Aged : 37 years, Occ. : Business
Residing at : 1201, Dolphin Towers,
Bhoomi Park. Phase 2 Road,
Jankalyan Nagar, Malad,
Mumbai – 400 095.

..Applicant
Vs.
The State of Maharashtra,
(At the instance of Nagpada Police Station
vide their C.R.No.57/2022)
..Respondent
CORAM:H. H. THE ADDITIONAL SESSIONS JUDGE
MRS. M.M.DESHPANDE
(Court Room No.41)
DATE : 26th July 2022.
Adv. Ms. P. C. Contractor for Applicants.
APP Bhandari for State.

ORDER
1]
This is an application filed by the applicants under Section
439 of the Code of Criminal Procedure, praying for releasing him on
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bail in connection with C.R. No.57/2022 registered with Nagpada Police
Station, Mumbai under Sections 376 (2)(n), 420 read with 34 of the
Indian Penal Code.
2]
Prosecution’s case in short is that, the complainant Naziya
Parvez Shaikh lodged report to Nagpada Police Station inter alia
contending that, accused got acquainted with her through Facebook in the
year 2016. The complainant accepted the friend request of the applicant.
Thereafter, they started interacting with each other and exchanged their
mobile number. It is alleged that the accused started expressing that he
loves her and intends to marry. The complainant also accepted the
proposal of marriage. It is the grievance of the complainant that the
applicant started demanding money from the complainant alleging that
his business partner cheated him. So also, he developed physical relation
with complainant by giving false promise of marriage. Moreover, he was
arrested by the police in connection with some criminal case. Later on, the
complainant came to know that applicant is already married and the
present applicant alongwith his brother Adnan cheated the complainant by
giving promise of marriage and repeatedly committed sexual intercourse
with her and has taken huge amount from her. On these allegations,
complainant lodged report and offence punishable under sections 376 (2)
(n), 420, 34 of the Indian Penal Code came to be registered at Nagpada
Police Station against the accused vide crime No.57/2022.
3]
The contention of the applicant/accused is that, the
allegations are an afterthought, there is an inordinate delay in lodging
FIR. The applicant submits that the investigating officer has already done
necessary investigation with regard to the alleged incident and there
remain nothing which warrants the detention of the applicant. The
applicant states that he has no role to play in the offence which is alleged
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to have been committed by the other Co-accused. There is no case made
out and in any event now detention is unwarranted and further mere
attendance will suffice the purposes.

The applicant will abide any terms
and conditions imposed upon him by the Court. The applicant will not
tamper with the prosecution witnesses in any manner.

The applicant
undertakes not to misuse the liberty of bail if granted to him.

The
applicant is permanent resident of Mumbai and there is no question to flee
away from justice. He is ready to co-operate with investigating agency.
Hence, it will not be just and proper to keep applicant behind bar. Lastly,
he prayed to release him on bail.
4]
The prosecution has opposed the application by filing say vide
Exh.2 on the ground that accused suppressed the fact of his previous
marriage and under false promise of marriage has committed forcible
intercourse with her repeatedly against her will without her consent. The
accused in collusion with accused no. 2 Adnan has taken amount of Rs. 6
lac from complainant and thereby cheated her. Offence punishable under
section 354, 509 of Indian Penal Code vide crime no. 299 /2018 is already
registered against accused at Dindoshi police station. One another offence
punishable under section 420, 34 of Indian Penal Code vide crime no.
997/2020 is registered against accused at Goregaon police station and
accused is on bail in these offences. Medical examination of accusd is to be
conducted. Since the date of commission of offence the accused is
absconding. The accused no. 2 is yet to be arrested. The offence is serious
in nature. Investigation is in progress, charge-sheet is yet to be filed. If he
is released on bail, he will pressurize the complainant and will flee from
the Court of justice. The accused and complainant are residing in the
same area, if he is released on bail, he will pressurize the complainant.
Hence, he prayed to reject the application.

BA 1733/2022
5]
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Heard Advocate for the applicant at length. Heard learned
A.P.P. for the State gone through the record and written notes of arguments
place on record by original complainant at Exh.4.
6]
In
view
of
these
facts,
following
points
arise
for
determination. I have recorded my findings against them for the reasons
stated thereafter.

Sr.
No.

POINTES
FINDINGS
1) Whether the applicant is entitled for
bail ?
2) What Order?

No.
As per final order.

REASONS
As to Point No.1:7]
On perusal of documentary evidence placed on record by the
prosecution and complainant, it appears that the accused has already
applied for pre-arrest bail vide ABA no. 1032 /2022 and 538/2022 which
came to be rejected on 10/06/2022 and 28/03/2022. The accused during
this period did not co-operate investigating agency and then he was
arrested on 08/07/2021. The complainant issued notice to accused for
recovery of amount of Rs. 6,24,000/- . It clearly reveals that the accused
during the period from 2016 till 2021 has received amount of Rs.
6,24,000/- time to time from complainant by gaining her faith. The
accused under the false premise of marriage has gained her faith and took
huge amount from her. The investigation is in progress. The charge-sheet
is yet to be filed.

The accused in collusion with accused no. 2 has
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committed the offence prima facie involvement of the accused appears in
the offence in question. The prosecution requires further detention of
accused for further investigation and apprehension of the prosecution is
well founded from the act of the accused.
8.

The learned counsel for accused has placed her reliance in
cases of 2022 LiveLaw (SC) 599 – In the case of Ansaar Mohammad Versus
The State of Rajasthan & Anr – in which the Hon’ble Apex Court has held
that “Indian Penal Code 1860; Section 376 (2)(N) – Offence of
committing repeated rape on same woman – The complainant
has willingly been staying with the appellant and had the
relationship – Now if the relationship is not working out, the
same cannot be a ground for lodging an FIR for the offence
under section 376 (2)(n) IPC- Observation while granting
anticipatory bail to accused.”
And in BA no. 430/ 2021, Shekh Rahim @ Sanvar @ Anvar Vs. The State
of N.C.T. Delhi, it observed that “In these circumstances, merely because that the other co-
accused are absconding, cannot be a ground to deny the
petitioner the benefit available under the recommendations
made by the HPC. I also do not find any reason to believe the
bald statement of the respondent that in case the petitioner is
released on interim bail, he will tamper with the
investigation”.

BA 1733/2022
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She has further placed her reliance in case of Criminal ABA
no. 27/2014 and Criminal Intervention Application no. 179/2014 –
Mahesh Balkrishna Dandne V/s. State of Maharashtra – in which the
Hon’ble High court has held that “In the present case, both the applicant/ accused and
complainant are graduated in law. A fact of their sexual
relationship is admitted. Their relations were going on
for a long period i.e. from 2009 till 2013. However
there was a letter written by the applicant/ accused in
the year 2011 wherein he has mentioned that the
complainant is forcing him to marry as she tried to
commit suicide. Thereafter also their physical
relationship continued. The photocopy of SMS sent on
1st July, 2013 prima facie discloses that complainant
had an idea that applicant/ accused has decided to
marry other girl. Moreover, to keep physical
relationship or not is a choice of both the parties. Prima
facie it does not appear from the record that the
complainant was either forced to keep sexual
relationship or she was really induced to such an extent
that she has no other option but to keep physical
relationship with the applicant/accused. Even though if
at all there is bona fide promise to marry and the girl
chooses to keep physical relationship with that persons
and if a boy withdraws his promise, as they are not
psychologically comfortable with each other, then it
cannot bring that particular act within the purport of
offence under section 375 of IPC. The complainant is
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an educated girl and it shows that it was her conscious
decision to keep sexual relations with him. Prima facie at this
stage, possibility of noncommittal, consensual relationship
cannot be denied”.
The facts and circumstances of the above cited case laws are
different and therefore ratio of above cited case laws is not at all
applicable to the present case in the present facts and circumstances of the
case.
Considering
8]
the
nature
and
role
played
by
the
applicant/accused and previous conduct of accused I do not find proper to
release the accused on bail. In the result, I pass the following order :
ORDER
1.

Bali Application No.1733 of 2022 is rejected.

2.

Bali Application No.1733 of 2022 is disposed off accordingly.
MADHURI
MILIND
DESHPANDE
26/07/2022
Date of Dictation
: 26/07/2022
Date of Transcription : 26/07/2022
Date of signature
: 26/07/2022
Digitally signed by
MADHURI
MILIND
DESHPANDE
Date: 2022.07.29
14:41:27 +0530
(Mrs. M. M. Deshpande)
Addl.Sessions Judge,
City Civil & Sessions Court,
Gr. Mumbai
BA 1733/2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
Upload Date
20/07/2022
Upload Time
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Name of the Judge (With Court Room No.)

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HHJ Mrs. M.M.Deshpande
(CR 41)
Date of Pronouncement of JUDGEMENT
/ORDER
20/07/2022
JUDGEMENT /ORDER signed by P.O. on
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