Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2025 Supreme(Bom) 347

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
MILIND N. JADHAV
Mohammed Ajaan Khan - Appellant
Versus
State of Maharashtra - Respondent
CRIMINAL APPELLATE JURISDICTION BAIL APPLICATION NO. 4621 OF 2024
Decided On : 13-02-2025

Advocate Appeared:
For the Appellant :Mr. Viral Mukte a/w Mr. Bilal A. Motorwala, Advocates for Applicant
For the Respondent:Ms. M.S. Bajoria, APP for Respondent No.1 – State. Ms. Gargi Warunjikar, Advocate for Respondent No.2 – prosecutrix.

The court held that a consensual relationship between a minor and an adult, in the absence of force, may warrant bail, emphasizing the importance of context and the nature of the relationship.

Headnote:
(A) Code of Criminal Procedure, 1973 - Section 439 - Indian Penal Code, 1860 - Sections 376, 376(2)(n), 376(3) - Protection of Children from Sexual Offences Act, 2012 - Sections 4, 6, 8, 12 - Application for bail in a case of alleged rape involving a minor - The court considered the nature of the relationship between the applicant and the prosecutrix, noting that both were in a consensual relationship for over 15 months, despite the prosecutrix being a minor at the time of the incidents. The court emphasized the importance of understanding the context of the relationship and the absence of force or coercion in the applicant's actions. The court also referenced previous judgments regarding the treatment of minors in similar cases. (Paras 10, 12, 14)

(B) Bail - Considerations for granting bail - The court highlighted that the primary consideration in bail applications is whether the accused is likely to appear for trial, alongside other factors such as the gravity of the offence and the nature of the relationship between the parties involved. The court found that the applicant had made a strong case for bail based on the consensual nature of the relationship and the absence of any criminal antecedents. (Paras 14, 15)

Facts of the case:
The applicant, aged 22, was accused of repeatedly raping the prosecutrix, who was 16 years old, over a period of 15 months. The prosecutrix had undergone two medical terminations of pregnancy during this time. The FIR was filed with a significant delay after the alleged incidents.

Findings of Court:
The court found that the relationship was consensual and that the applicant was not a sexual predator. The applicant was granted bail with specific conditions.

Issues: The main issues included the nature of the relationship between the applicant and the prosecutrix, the delay in filing the FIR, and the implications of the prosecutrix's age on the consent.

Ratio Decidendi: The court ruled that the relationship was consensual, and the delay in filing the FIR did not negate the applicant's entitlement to bail. The court emphasized that the applicant's actions did not constitute a violent crime and that he was not a threat to society.

Result: Bail Application is allowed.

JUDGMENT :

[MILIND N. JADHAV, J.]

1. This is an Application under Section 439 of CrPC, [Code of Criminal Procedure, 1973] seeking Regular Bail in connection with C.R. No. 300/2024 lodged at Wadala T.T. Police Station, Mumbai for offences punishable under Sections 376, 376(3) and 376(2)(n) of IPC, [Indian Penal Code, 1860] read with Section 4, 6, 8 and 12 of POCSO, [Protection of Children from Sexual offences Act, 2012].

2. This Court (Coram: Manish Pitale, J.) by order dated: 13.01.2024 issued notice to Respondent No.2 – prosecutrix and since she was not represented on the next adjourned date, this Court, by order dated 06.02.2025 appointed Ms. Gargi Warunjikar to espouse and represent the cause of the prosecutrix and stood over the matter today. Ms. Warunjikar has addressed me today so also learned Advocate for the Applicant, Mr. Mukte and Ms. Bajoria, learned APP.

3. Prosecution case in brief is that Applicant committed rape repeatedly on the prosecutrix for over a period of 15 months from January 2023 to April 2024. Applicant was 22 years old and prosecutrix was 16 years old on the date of filing of F.I.R., First Information Report under Section 154 of CrPC which is appended at page No.20 of the Bail Application.

4. Prosecution case finds its basis on the statement of prosecutrix in the FIR filed on 30.04.2024. She states that she knew the Applicant for 4 years prior to filing of FIR and was in a love relationship with him and they both used to visit each other’s homes and also venture together to various locations in Mumbai during the course of their two year long relationship prior to filing of FIR. She states that things took an unsavory turn when she was called by Applicant to his home under the guise of going on excursion but was instead forced into establishing sexual relationship with him. She states that she remained silent to the said incident but it was followed by a streak of similar instances eventually leading to her pregnancy (discovered by her, and her mother to be 8 weeks old in November, 2023) and subsequent MTP, Medical Termination of Pregnancy. She states that her MTP was followed by another episode of grimy incidents where Applicant used to repeatedly call her to his home and compelled her to establish sexual relations and she obliged.

5. FIR reveals that prosecutrix was introduced to a woman who was her mother’s acquaintance where she relocated herself for ‘her care’. She states that she was subsequently traced by police and sent to Shraddhanand Ashram. She states that her father informed the authorities about her MTP and she was produced before the Child Welfare Committee on 29.04.2024 who ordered her medical examination. Her medical examination revealed that she was 5 weeks pregnant for the second time.

6. Mr. Mukte, learned Advocate for Applicant would submit that the case in hand, at best, is of a consensual love relationship between two individuals which is being attempted to be given a ‘criminal flavor’ in retrospect. He would vehemently submit that there is a substantial delay of more than one year and three months in filing the FIR after the first incident alleged by the prosecutrix.

6.1. He would submit that prosecutrix and Applicant were known to each other as they were friends since four years prior to filing of FIR and used to visit each other’s home regularly as they resided in adjacent buildings at Wadala. Thereafter Applicant moved to Chembur after about 2 years, but they kept in touch with each other and developed closeness, had a love relationship for almost two years and had physical relationship for more than 15 months. He would draw my attention to the contents of the FIR wherein she has stated that she used to visit Applicant’s home. He would submit that contents of the FIR, barring a vague satement, do not clarify the manner in which ‘force’ or ‘coercion’ was used by Applicant. He would submit that what transpired behind close doors is unknown to everyone except the ones present but could