The court determined that the relationship was consensual, undermining claims of forceful sexual assault, and granted bail based on the applicant's lack of prior criminal history.

JUDGEMENT :

1. This is an Application under Section 439 of CrPC, [ Code of Criminal Procedure, 1973] seeking Regular Bail in connection with F.I.R. No. 533/2024 registered with Shree Nagar Police Station, Thane on 08.08.2024 for offences punishable under Sections 376, 420 of IPC, [ Indian Penal Code, 1860] and Sections 66C, 66D of Information Technology Act, 2000. Applicant is arrested on 09.08.2024.

2. The incidents narrated in the FIR which form the basis of prosecution case are that, Applicant aged 43 year old and prosecutrix aged 30 year old got acquainted with each other since she was employed as a gym trainer at the gym owned by Applicant since December 2020; that since February 2021, she knew that Applicant was married and was having one daughter; that she chatted on phone for long hours with him initially regarding work and later started going out with him; their closeness then turned into a feeling of affection towards each other and after initial hesitation from prosecutrix and persistent demand by Applicant their professional relationship transformed into a love relationship in November 2021; since then both were constantly in touch with each other on a daily basis; since they had a good reputation in Society they decided against meeting in public spaces and instead explored to find a rented accommodation for the prosecutrix and her minor son of six years to stay so that they could meet in that place. According to the prosecutrix during this time, sometime in the month of April 2022 when Applicant’s family members were not present in his house he invited the prosecutrix and established physical relations with her against her wish. Thereafter in the next few days he repeated his act twice, once in the gym and at another time in a hotel room at Jayesh-Inn Hotel. Thereafter prosecutrix states that she went with Applicant to the same hotel 2 to 3 times.

2.1. In the meantime, sometime in June 2022, they were able to find a rented premises in Mulund and Applicant helped the prosecutrix enter into a leave and license Agreement with the owner of the premises (flat) and started living there along with her minor son (6 years) born out of her previous wedlock. There they admittedly used to engage in frequent consensual physical relations in that premises. Prosecutrix states that at all times while having relationship Applicant used to force her to drink and capture the footage in his mobile phone. As per prosecutrix, it was during this period Applicant captured obscene footage after intoxicating her once and thereafter from October 2022, he used the same as a leverage to induce her into a vicious cycle of sexual exploitation. It is alleged that he misappropriated the proceeds of such exploitation by forcing the prosecutrix to undertake compromising acts for his own advantage and for profitable running of his gym. Since the prosecutrix was banking heavily on the assurances of Applicant to marry her and had already left her mother’s residence post differences that erupted between them because of the subject matter relationship, according to her she had no choice but to obey the Applicant.

3. Mr. Sutaria, learned advocate appearing on behalf of the Applicant would counter the contents of the FIR to submit that Applicant and prosecutrix, both of whom were in a subsisting marriage during the tenure of the alleged incidents itself shuns out the possibility of establishing physical relationship on the pretext or promise of marriage.

3.1. He would submit that in so far as the allegation of forceful sexual assault on the alleged occasions is concerned, the same is a concocted story. He would draw my attention to the timeline of the incidents narrated in the FIR and submit that it makes it clear that despite prosecutrix allegedly being subjected to sexual assault on three occasions, she still moved in and also engaged in physical relationship with Applicant willingly. He would submit that such a timeline is self contradictory even if one mak