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Criminal Bail Application No.690/2022
CNR NO. MHCC02-003984-2022
IN THE COURT OF SESSIONS FOR GREATER MUMBAI
AT MUMBAI
CRIMINAL BAIL APPLICATION NO. 690 OF 2022
IN
C.R. NO. 161 OF 2022
Mr. Namdev @ Nitin Ramdas Gajare
Aged: 40 years, Occ. Business
Residing at Room No.608,
Shiv Prasad Co-Hsg. Soc.,
Laxmi Nagar, Ghatkopar (East),
Mumbai – 400 075.
Mob. No.9821122233
…Applicant/Accused
Versus
The State of Maharashtra,
(Through Pantnagar Police Station,
Ghatkopar).

…Respondent
Appearances:
Advocate Mr. Satish S. Mande for the applicant/Accused.
APP Mrs. Meera Choudhary-Bhosale for the State/Respondent.
CORAM : H.H.THE ADDITIONAL SESSIONS JUDGE,
SONALI P. AGARWAL (C.R. NO. 41)
DATED : 7th APRIL, 2022.

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Criminal Bail Application No.690/2022
:ORDER:
This is bail application filed by accused under section 439 of the
Code of Criminal Procedure 1973 (hereinafter referred to as “Cr.P.C.”) for
grant of regular bail in connection with Crime No.161/2022 for the offence
punishable under Sections 376, 376(2)(n) and 506 of the Indian Penal
Code, 1860 (hereinafter referred to as “IPC”) registered with Pantnagar
Police Station.
2.

Heard argument of learned counsel for accused and learned APP for
the State.
3.

Prosecution has alleged that informant got acquainted with accused
before one and half year of lodging FIR and she and accused started
chatting with each other on WhatsApp. After some days, wife of accused
quarreled with informant as she came to know about chatting between
informant and accused. In December 2021, when informant was returning
back home that time accused caught her hand and told her that he wants
to marry her and if she does not talk with him then he will commit suicide
by coming under railway and also gave threats to do something bad to her
also. It is further alleged that in January 2022 by saying that accused is
going to marry informant he took her in a room twice at Kamrajnagar and
had sexual relations with her. It is further alleged that on 21.03.2022 also
when informant and one Vinayak were starting to go home that time
accused came on two-wheeler there and took mobile phone of informant
and told her that he wants to talk with her and told her to accompany with
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Criminal Bail Application No.690/2022
him. Informant demanded her phone back but he told her to accompany
with him and he took her to Panvel. At Panvel also he told informant to
keep sexual relations with him and told her that he will marry her. She
told him to drop her at her house. But he took her again in a room and had
sexual relations with her against her wish and thereafter, he returned back
her mobile and then he dropped her and went away. Then informant went
with her sister to home and she was inquired with her sister and family
members where she was at whole night then she narrated entire incident
to her family and then FIR came to be lodged.
4.

Applicant-accused has contended that in the FIR itself informant has
admitted that accused is married person. Applicant-accused has further
contended that he and informant are knowing each other from last four
years and their friendship was also known to his wife also. Applicantaccused has further contended that the consensual sexual intercourse
cannot be labelled as rape. Applicant-accused has further contended that
informant was aware of the consequences of keeping sexual relationship
with him and prayed that he be released on bail.
5.

Prosecution has submitted that yet statement of victim under section
164 Cr.P.C. is to be recorded. Prosecution has further submitted that
though accused is married and having two children he has committed
serious offence. Prosecution has further submitted that by giving threats
accused had repeated sexual intercourse with informant therefore, she is
depressed and objected the bail application.

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6.

Criminal Bail Application No.690/2022
It appears, as per prosecution’s case victim is hardly 19 years old
girl. The FIR itself shows that informant was knowing that accused is
married person. In FIR it is specifically alleged that even after accused was
married, he gave promise of marriage to informant and further gave her
threats that he will commit suicide by coming under railway if informant
does not talk with him. It is alleged that by giving promise of marriage
accused took informant in a room in January 2022 and had sexual
intercourse twice. It is alleged that in March 2022 accused took mobile of
informant and when she demanded it back he told her to accompany with
him to Panvel and in a room at Panvel he did sexual intercourse with her
and then returned back her mobile. Accused contends that the relationship
between him and informant was consensual one. But prosecution has
specifically alleged that though accused is married, he gave promise of
marriage to informant and had twice sexual intercourse with her and on
one occasion he took her mobile and did not return back till she
accompanied with him and in a room at Panvel he had sexual relations
with her. Considering the age of victim that she is only 19 years old and
the accused is 40 years old and married and having two children prima
facie it appears accused obtained consent of informant fraudulently by
giving her false promise of marriage though he was very much aware that
he is married having two children. Therefore, it appears that at inception
accused has given false promise of marriage to a young girl of 19 years old
when he is 40 years old. Therefore, prima facie it appears that accused
obtained consent of informant fraudulently to have sex with her.

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7.

Criminal Bail Application No.690/2022
Learned counsel for applicant has cited Judgment of the Hon’ble
Bombay High Court in case of Vishal Vijay Patil vs. The State of
Maharashtra & anr. in Criminal Revision Application No.210 of 2018,
decided on 08.03.2019, in which it is held that, “perused the FIR and the
statements of witnesses especially a friend of the prosecutrix. It is a case of
consensual sexual intercourse which cannot be labelled as rape. The
prosecutrix at the time of filing the complaint i.e., March 2015 was 26
years old and according to her statement, the incident of rape has occurred
in May, 2012. Thus, at the time of the incident, the prosecutrix was
approximately 22 years old. At that time, she was working as a Sales Girl
in one mobile agency where the applicant/accused was working as a team
manager. Thus, the prosecutrix was wise enough to understand the
consequences of keeping sexual relations without marriage. She was aware
that they belonged to different religions. Therefore, the consent given by
the prosecutrix cannot be said that it was obtained by fraud or out of
coercion.” In the case in hand the victim is 19 years old and as per the
allegations of prosecution accused has committed last rape on 22.03.2022
and on the same day FIR is filed. It is specifically stated that accused is
married but still he gave promise of marriage to a young girl shows his
intention at inception to deceive informant by giving false promise.
Therefore, facts of the case cited and in hand are different. Hence, this
case law is not applicable to the case in hand at this stage.
8.

Learned counsel for accused has cited judgment of the Hon’ble
Bombay High Court in case of Bholasingh vs. State of Maharashtra in
Criminal Appeal No.147/2020, decided on 20.10.2019, reported in
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Criminal Bail Application No.690/2022
LAWS (BOM) 2020 10 124, in which it is held that, “The evidence of
prosecutrix discloses that she had sexual relations firstly in the month
of January and then in the following month. Admittedly at that time,
she has not put any grievance to anybody. It is the evidence of victim
that on 26.03.2017, she went along with the accused to his native
place and stayed in the house of sister-in-law of accused, where they
had physical relations. It emerges from record that both were residing
adjacent to each other and there happened to be a love affair in
between them. The victim not only submitted her body to the accused
only once, but, repeatedly. They had enjoyed the sexual pleasures
during the period of three months. In the circumstances, it cannot be
said that the accused has forcibly maintained sexual relations with the
victim girl. There is no material to suggest that the victim has
submitted herself on misconception of fact. It reveals that the victim
and accused who was barely 18 years of age, were neighbours and
were in love. The evidence no where indicates that since inception the
accused was carrying deceptive intention or he knows that consent
was given by the victim on his assurance to marry. Therefore, the
conviction under Section 376 of the Indian Penal Code would not
sustain.” In the cited case the matter has reached after full trial to the
stage of appeal. But in the case in hand the matter is at the
investigation stage and the prosecution has alleged that accused
obtained consent of informant fraudulently by giving her false promise
of marriage. Therefore, facts of the case cited and in hand are
different. Hence, this case law is not applicable to the case in hand.

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9.

Criminal Bail Application No.690/2022
Learned counsel for applicant has cited Judgment of the Hon’ble
Bombay High Court (Nagpur Bench) in case of Mohammed Aamir
Ansari vs. State of Maharashtra in Criminal Application ( A P L) 999 of
2019 decided on 20.02.2012, reported in LAWS (BOM) 2020 2 190, in
which it is held that, “The Hon’ble Apex Court has also held that there
is a distinction between rape and consensual sex and also difference
between mere breach of a promise and not fulfilling a promise which
was false since inception. The relevant observations of the Hon’ble
Apex Court as it they appear in paragraph 21 are produced thus:“Thus there is a clear distinction between rape and consensual sex.
The Court, in such cases, must very carefully examine whether the
complainant had actually wanted to marry the victim or had mala fide
motives and had made a false promise to this effect only to satisfy his
lust, as the later falls within the ambit of cheating or deception. There
is also a distinction between mere breach of a promise and not
fulfilling a false promise. If the accused has not made the promise
with the sole intention to seduce the prosecution to indulge in sexual
acts, such an act would not amount to rape.” In the case in hand
accused was married having two children but still he gave promise of
marriage to informant and further gave her threats that he will
commit suicide if she does not talk with him and then had sexual
relations with her. Therefore, in the case in hand prima faciely it does
not appear to be the matter of breach of promise but a case of false
promise given by accused with sole intention to seduce victim to
indulge in sexual activity.

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10.

Criminal Bail Application No.690/2022
It appears, as per the allegations of prosecution accused made
false promise of marriage to the victim with sole intention to seduce
her to indulge in sexual act with him. He gave her threats to commit
suicide by coming under the railway if she does not talk with him and
induced her to have sex with him. The matter is at the investigation
stage. The victim is only 19 years old. If at this stage accused is
released on bail, then there is every possibility that he will threaten
and lure witnesses and tamper with the evidence of prosecution and
abscond also. Hence, it will not be proper to release accused on bail at
this stage. Hence, pass following order:
ORDER
1.

Criminal Bail Application No.690 of 2022 is rejected.

2.

Criminal Bail Application No.690 of 2022 stands disposed of
accordingly.

Dt. 07.04.2022
Dictated on
Transcribed on
Signed on
(SONALI P. AGARWAL)
Additional Sessions Judge,
Gr. Bombay
: 07.04.2022
: 07.04.2022
: 07.04.2022
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Criminal Bail Application No.690/2022
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER
11/04/2022 at 12.03 p.m.
UPLOADED DATE AND TIME
Subhash Sukhdeo Poul
NAME OF STENOGRAPHER
Name of the Judge (With Court H.H.J. Sonali P. Agarwal
Room No.
Room No.41)
Date
of
Pronouncement
Judgment/Order
of 07/04/2022
Judgment/Order signed by P.O.on
07/04/2022
Judgment/Order uploaded on
11/04/2022
(Court