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BA No.626/2024
MHCC020041452024
IN THE COURT OF SESSIONS AT GREATER BOMBAY
BAIL APPLICATION NO.626 OF 2024
Vinayak Anant Bhoir
Aged 34 years, Occ. : Service,
R/at. Room No.22, Anand Utkarsh
Rahivashi Sangh, Hanuman Nagar,
Near A-1 Bakery, Goregaon (West),
Mumbai-400 104.

..Applicant
V/s.
State of Maharashtra
(At the instance of Navghar
Police Station, Mumbai in
C.R. No.46/2024).

..Respondent
Appearance :Advocate Ms. Pramila Salvi for the applicant.
APP Mr. R.V. Tiwari for the respondent/State.
CORAM : HHJ SHRI N.G. SHUKLA,
ADDITIONAL SESSIONS JUDGE,
COURT ROOM No. 29.
DATED : 16/03/2024
ORDER
(Dictated and pronounced in open Court)
1.

Applicant/accused who is arrested in Crime No.46/2024 for
the offence punishable under Sections 376, 504, 506 of Indian Penal Code
has filed this application for bail under Section 439 of The Code of Criminal
Procedure. Prosecution filed reply at Exh.2 and informant filed reply at
Exh.4 and opposed the application.

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2.

BA No.626/2024
I have heard Advocate Ms. Pramila Salvi for applicant and
learned APP Mr. R.V. Tiwari for prosecution on the instructions of
informant.
3.

As per allegations in FIR, informant and accused got
acquainted to each other on social media facebook in the year 2013. They
fallen in love and decided to marry after having financial settlement. It is
alleged that accused maintained physical relations with informant since
2014 and used to take the informant outside and he maintained physical
relations with the informant since 2014 till 2019. Accused had taken one
flat at Ambernath and used to take informant in the said flat to maintain
physical relations. It is alleged that, accused took her in the said flat since
2019 to 2023 and when informant asked him about marriage, accused was
giving evasive answers. Inspite, informant was opposing to maintain
physical relations until the marriage, accused forcefully maintained
physical relations with her against he wish and lastly on 04.02.2024. Prior
to one month of lodging FIR, when informant made phone call and asked
about marriage, accused refused to marry with her. Informant went at the
office of accused and he ran away from the office after looking her.
Therefore, informant lodged FIR alleging aforesaid facts on 03.03.2024.
4.

Advocate for accused submitted that, informant and accused
were having love affair since 2013. They had decided to marry after got
financially settled. Accused got job in Thane Municipal Corporation in the
year 2017. In the year 2020, accused had asked to the informant about
marriage and his family met to the family of informant in the year 2020.
But, due to their different religions, the marriage was not finalized by both
the family members. Informant was saying to accused that she would not
go against the wish of family and she had not given consent for marriage.

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BA No.626/2024
Accused waited for marriage upto 2023 i.e. for four years. Lastly, accused
informed to the informant and her family that the informant is not going to
marry with him and he would perform marriage with another girl.
Accordingly, engagement ceremony of accused with another girl was fixed
to be performed on 03.03.2024. In the early morning of 03.03.2024,
informant lodged present FIR only to harass accused and his family and to
defame him in front of his to be en-laws. Physical relations between
accused and informant are consensual. Prima-facie Section 376 of IPC
would not attract. Accused is arrested on 03.03.2024. Almost investigation
is completed. Hence, his further detention is not required. Accused is ready
to abide any condition imposed on him. Hence, advocate prayed to grant
bail to applicant.
5.

Informant in person appeared and given instructions to APP.

On said instructions, APP submitted that love affair is admitted fact.
However, consent for sexual relation was obtained under pretext of false
promise of marriage. Thus, Section 90 of IPC would attract in this crime.
Consent is obtained by the accused under misconception of fact. Accused
had given false promise of marriage and even after the talks of marriage
were not finalized, accused maintained relations with the informant.
Investigation is in progress and charge-sheet is not yet filed. If released on
bail, accused may pressurize the informant and tamper the evidence.
Hence, APP prayed to reject the application. APP relied on following
rulings“i.

Nikhil Parasar Vs. The State Govt. NCT of Delhi in Bail
Application No.1745/2009 passed by Hon’ble Delhi High Court at
New Delhi on 01.02.2010.
ii.

State of U.P. Vs. Naushad in Criminal Appeal No.1949/2013
passed by Hon’ble Supreme Court of India on 19.11.2013.

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iii.

BA No.626/2024
Anurag Soni Vs. State of Chhattisgarh in Criminal Appeal
No.629/2019 passed by Hon’ble Supreme Court of India on
09.04.2019”.
6.

I have considered submissions and perused the record.

It
appears from FIR that, after falling in love, informant and accused had
agreed to perform the marriage after got financially settled. FIR discloses
that since 2014 till 2019, accused maintained physical relations with the
informant under pretext of marriage. It shows that, the consent for physical
relation was obtained under pretext of marriage. It is settled law that, if
the consent is obtained under misconception of fact, the consent is not free
for sexual relations. From the FIR it appears that, accused was maintaining
physical relations since 2013 to 2019. It also appears from say of police
that, members of the family of informant accused were met to have talks of
marriage and to finalize the same. Advocate for accused also relied on
photograph to substantiate this contention.
7.

Statements of parents of informant shows that, the talks of
marriage was failed as the informant and accused are from different
religion and it was not decided as to rituals of which religion was to be
followed for performing marriage. Their statements further shows that
parents of the informant met to the family of accused and pray apology
Even thereafter, there was no response from the accused and his family.
Even if this position is accepted, the further conduct of accused is
important. When the marriage was not finalized in the year 2020, accused
had no reason to maintain physical relations with the informant in the year
2023.
8.

The photograph and whatsapp chats shown by the police
officer discloses that, in the month of July and December 2023, accused
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BA No.626/2024
was maintaining physical relations with the informant inspite the marriage
talks were failed long back in the year 2020. In this context, ruling in
Anurag Soni (Cited Supra) is important as facts are quite similar. Thought,
advocate for accused argued that, this ruling is on consideration of appeal
against the conviction, but observation of Hon’ble Supreme Court of India
on the basis of facts is important. In that case, both the families used to
visit house of each other. Accused kept the prosecutrix and her family
members in dark, refused to marry with prosecutrix and performed
marriage with another girl.
9.

In the instant case, inspite the marriage talks failed in the year
2020, at one side accused maintained physical relations with the informant
in 2023 and at another side fixed engagement with another girl. In my
view, this conduct of the accused prima-facie attracts Section 376 of IPC as
he maintained physical relations with the informant under pretext of
promise of marriage which he was knowing that he could not perform.
10.

It appears from say of police that, investigation is in progress
and charge-sheet is not filed. Thus, considering the seriousness of offence
and involvement of accused revealed in the said offence, I do not find this
fit case to grant bail. Hence, I pass following order :ORDER
Bail Application No.626 of 2024 in CR No.46/2024 is rejected and disposed
off accordingly.

Date : 16/03/2024
(N.G. Shukla)
Additional Sessions Judge,
City Civil and Sessions Court,
Greater Bombay
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BA No.626/2024
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER
Name of Stenographer
Upload date and time
Name of the Judge
: Mrs. Shravanti Karre
: 21st March, 2024 (At 05.02 pm.)

H.H.THE ADDL. SESSIONS JUDGE
SHRI N. G. SHUKLA (C.R.No.29)
Date of Pronouncement of Order 16th March, 2024
Order signed by P.O. on
17th March, 2024
Order uploaded on
21st March, 2024