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HIGH COURT OF BOMBAY
HON'BLE SHRI JUSTICE MILIND N. JADHAV
Mohammed Ajaan Khan - Appellant
Versus
State of Maharashtra - Respondent
BA/4621/2024
Decided On : 13-02-2025
(A) Code of Criminal Procedure, 1973 - Section 439 - Indian Penal Code, 1860 - Sections 376, 376(3), 376(2)(n) - Protection of Children from Sexual Offences Act, 2012 - Sections 4, 6, 8, 12 - Application for bail in a case involving allegations of rape against a minor - The court considered the nature of the relationship between the applicant and the prosecutrix, noting that both were in a consensual relationship despite the prosecutrix being a minor. The court emphasized that the prosecutrix's consent is immaterial in law, but the circumstances surrounding the relationship were crucial in determining bail. The applicant was granted bail based on the lack of evidence of force and the consensual nature of the relationship. (Paras 10, 14, 15)
(B) Bail - Considerations for granting bail - The court must assess the likelihood of the accused appearing for trial, the gravity of the offence, and whether the accused poses a risk of repeating the offence or tampering with evidence. The court found no indications of force and noted the absence of criminal antecedents for the applicant. (Paras 14, 15)
Facts of the case:
The applicant, aged 22, was accused of repeatedly raping a 16-year-old prosecutrix over 15 months. The prosecutrix alleged coercion but also admitted to a consensual relationship, leading to two pregnancies and medical terminations. The FIR was filed after a significant delay.
Findings of Court:
The court found that the relationship was consensual and that the applicant did not pose a threat to the prosecutrix or the trial process.
Issues: The main issues included the nature of the relationship, the prosecutrix's age, and the implications of her consent.
Ratio Decidendi: The court ruled that the relationship was consensual, and the applicant's age and lack of criminal history were mitigating factors for granting bail.
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 coul
The court determined that the relationship between the applicant and the prosecutrix was consensual, which influenced the decision to grant bail despite the prosecutrix being a minor.
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.
The court emphasized that the nature of the relationship between the accused and the minor was consensual, impacting the decision to grant bail despite the legal implications of the minor's consent.
The court emphasized a reformative approach for young offenders, prioritizing rehabilitation over punitive measures, especially in cases involving serious allegations against minors.
The court emphasized a reformative approach for young offenders, balancing the seriousness of allegations with the potential for rehabilitation, particularly in cases involving minors.
The court held that the prosecutrix's consent, despite being a minor, and the absence of coercion or violence justified granting bail to the Applicant.
The court ruled that while consent is immaterial under POCSO, the circumstances of the relationship and lack of coercion are critical in bail considerations.
The court held that the prosecutrix's voluntary actions and apparent consent, despite her being a minor, are significant in determining bail eligibility.
The court determined that the relationship between the Applicant and prosecutrix was consensual, leading to the granting of bail despite serious allegations.
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