IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

928 CRIMINAL WRIT PETITION NO.563 OF 2022

YASHWANT SAMBHAJI WANKHEDE

VERSUS

THE STATE OF MAHARASHTRA

...

Mr. D.M. Shinde, Advocate for the petitioner

Mr. B.V. Virdhe, APP for the sole respondent

...

CORAM : SMT. VIBHA KANKANWADI, J.

DATE :

05^th JULY, 2022

ORDER :

1

By invoking the constitutional powers of this Court under Article

227 of the Constitution of India and inherent powers under Section 482 of

the Code of Criminal Procedure, 1973 the petitioner, who is the original

accused, intends to challenge the order passed by learned Additional Sessions

Judge, Hingoli in Criminal Bail Application No.99/2022 dated 06.04.2022,

whereby by exercising powers under Section 439(2) of the Code of Criminal

Procedure the learned Additional Sessions Judge, Hingoli has cancelled bail

granted by learned Judicial Magistrate First Class, Kalamnuri to the present

petitioner in Crime No.26/2022, for the offence punishable under Section

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376(2)(n), 506 of the Indian Penal Code, 1860, registered with Kalamnuri

Police Station. The present petitioner was directed to surrender before

learned Judicial Magistrate First Class, Kalamnuri on 20.04.2022.

2

Heard learned Advocate Mr. D.M. Shinde for the petitioner and

learned APP Mr. B.V. Virdhe for the sole respondent.

3

It has been vehemently submitted on behalf of the petitioner that

on the basis of First Information Report lodged by the prosecutrix, who was

aged 32, against the petitioner the said offence came to be registered under

Section 376, 506 of the Indian Penal Code. The petitioner came to be

arrested on 20.01.2022 and thereafter he filed application for bail on

25.01.2022 under Section 437 of the Code of Criminal Procedure. The

prosecution took strong objection and submitted that since it is the offence

which is exclusively triable by the Court of Sessions, the accused cannot be

released on bail. The learned Judicial Magistrate First Class, Kalamnuri by

giving a detailed order allowed the said application on 31.01.2022, by

imposing certain conditions. However, the prosecution filed application

under Section 439(2) of the Code of Criminal Procedure vide Criminal

Miscellaneous Bail Application No.99/2022. The petitioner objected to the

same. However, the learned Additional Sessions Judge, Hingoli allowed that

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application and set aside the order of granting bail to the petitioner passed by

learned Judicial Magistrate First Class, Kalamnuri. The learned Additional

Sessions Judge, Hingoli failed to consider that there was no embargo to

learned Judicial Magistrate First Class, Kalamnuri to consider the bail

application under Section 437 of the Code of Criminal Procedure. Perusal of

the First Information Report lodged by prosecutrix, aged 32, would show that

she was married to some another person in the year 2006 itself and she was

having son aged 11 years. She got acquaintance with the petitioner who was

a Teacher in a school. He developed the acquaintance and then there was

proposal by him after saying that he loves her and they would perform

marriage. However, it was refused by the prosecutrix, but then she states

that by giving threats time and again she started talking and loving to the

petitioner. According to her, the physical relationship developed since

January, 2017 and she has then twisted by saying that the sexual acts which

were done by the petitioner with her were against her wish. She has then

stated that there was divorce between her and her husband and thereafter

also the physical relations between them continued from 2017 to February,

2021. She has also then stated that though it was promised to her that he

would perform marriage to her, the petitioner had performed marriage with

another lady in 2018 itself. Taking into consideration all these facts the

learned Magistrate has held that the case appears to be that of consensual sex

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and no of