31. BA 3430-2021.doc

Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

BAIL APPLICATION NO. 3430 OF 2021

Balasaheb Ashok Kalbhor

.Applicant

Vs.

The State of Maharashtra & anr.

.Respondents

Ms Sana Raees Khan i/b. M/s. Hulyalkar & Associates,

Advocate, for the Applicant

Mrs. M. R. Tidke, APP, for the Respondent No.1 – State

Mr. Balasaheb G. Ligade, Advocate, for the Respondent No. 2

CORAM

:

VINAY JOSHI, J.

DATE

:

02.05.2022

P. C.

.

The applicant is seeking for regular bail in C. R.

No. 193 of 2019 registered with the Wanawadi Police Station,

Pune for the offence punishable under Sections 376, 376(2)

(n), 323, 506(2) of the Indian Penal Code and under

Sections 4, 6, 8 & 10 of the Protection of Children from

Sexual Offences Act ( for short ‘POCSO’ Act ).

2.

At the instance of report lodged by mother of

victim, aged 17 years, crime was registered. It is the

prosecution case that on 21.03.2019, victim – a college going

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girl came late to the house. The informant asked the reason

on which she disclosed that the applicant, who is her cousin

uncle met her in the college. The applicant forcibly took her

by motor cycle to a lodging house and had sexual assault.

She also disclosed that in the past, on 14.01.2019 and

28.01.2019, the applicant had repeated the similar

activities. After knowing the facts from the victim, her

mother has lodged report.

3.

Initially applicant has denied the age of victim

and alleged sexual relationship. The applicant’s learned

counsel submitted that it is evident from the prosecution

case itself that at the most it was consensual relationship. In

support of said contention, mobile conversation chat has

been produced to show that both of them had intimate

relationship. Learned counsel appearing for the intervenor

while opposing bail submitted that since the victim was a

minor, her consent cannot be considered.

4.

Perused the statement of victim as well as

informant. It reveals that the victim frst time disclosed the

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incident dated 21.03.2019. She also disclosed two incidents

occurred in the past. Apparently, on earlier occasions

despite sexual assault, she has not disclosed the things to

anybody. Therefore, there is substance in the submission

that both have intimate relationship. No doubt, minor’s

consent assumes no signifcance. However, prima facie, it is

evident that it is not a case of force or use of compulsion for

the alleged act. The medical report nowhere suggest that

any force was used.

5.

Though, the story was projected that the

applicant had also photographed minor’s pictures, however,

it has come after 15 days from the lodgment of FIR which

speaks for itself. The victim girl was at the verge of majority.

She was college going girl thereby having suffcient ken of

understanding. It is to be proved during the trial that they

had physical relationship. The applicant was arrested on

24.03.2019 meaning thereby for the last three years he is in

jail. It is informed that till date, charges have not been

framed. Certainly, the trial will take considerable time for its

disposal. Having regard to all above facts, the applicant has

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made out a case for grant of bail. In view of that, the

following order.

O R D E R

(i)

The Application stands allowed;

(ii)

The applicant namely - Balasaheb Ashok Kalbhor

in C. R. No. 193 of 2019 registered with the Wanawadi Police

Station, Pune for the offence punishable under Sections 376,

376(2)(n), 323, 506(2) of the Indian Penal Code and under

Sections 4, 6, 8 & 10 of the POCSO Act, be released on bail on

his furnishing P. R. Bond of Rs. 25,000/- with one or two

sureties in the like amount;

(iii)

The applicant shall not enter the territorial

jurisdiction of the concerned police station til