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Criminal Bail Application No.893/2022
CNR NO. MHCC02-004994-2022
IN THE COURT OF SESSIONS FOR GREATER MUMBAI
AT MUMBAI
CRIMINAL BAIL APPLICATION NO. 893 OF 2022
IN
C.R. NO. 139 OF 2022
Mr. Sanjay Brindavan Mishra,
Age: 50 Years, Occ: Service,
R/o. Room No.13, Matoshree Chawl,
New Link Road, Behram Baug,
Jogeshwari (West), Mumbai – 400102
…Applicant/ Accused
Versus
State of Maharashtra
Through Ghatkopar Police Station,
Mumbai – 400086.

…Respondent
Appearances:
Advocate Mr. Santosh D. Mishra 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 : 30th APRIL, 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.”)
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Criminal Bail Application No.893/2022
for grant of regular bail in connection with Crime No.139/2022 for the
offence punishable under Sections 376(2)(n), 420 and 506(2) of the
Indian Penal Code, 1860 (hereinafter referred to as “IPC”) registered
with Ghatkopar Police Station.
2.

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

Prosecution has alleged that since seven years by giving promise
of marriage accused was staying in the house of informant like her
husband. It is further alleged that whenever informant asked him for
marriage he avoided the same. It is further alleged that accused used to
demand money from informant. It is further alleged that by thinking
that accused is informant’s husband and he is going to marry her,
informant gave him money for many times. It is further alleged that
informant gave him Rs.1,75,000/- by taking loan from bank and by
pledging gold ornaments. It is further alleged that since before three
months informant went away leaving informant. It is further alleged
that he told informant that he will not return back to home and she can
do whatever she wants. It is further alleged that informant came to
know that accused is already married and he is having illicit relation
with many women. It is further alleged that informant came to know
that accused has done obscene act with her daughter and daughter-inlaw. It is further alleged that accused gave threats to informant that if
she files case with police he will get such case closed by giving money.
Therefore, FIR came to be lodged with police.
4.

Applicant-accused has contended that informant is a married
women and her husband Radheshyam is alive. Applicant-accused has
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further
contended
that,
Criminal Bail Application No.893/2022
informant
has
deliberately
not
given
information about her marital status in the complaint. Applicantaccused has further contended that informant is having daughter, son
and daughter-in-law. Applicant-accused has further contended that
informant apparently claims to be in alleged live-in-relation/consensual
sex with accused since last 7-8 years. Applicant-accused has further
contended that according to informant she was staying in the alleged
relation with accused in her owned room premises. Applicant-accused
has further contended that there is no documentary acknowledgment
writings about the alleged money given to accused. Applicant-accused
has further contended that to blackmail him this FIR is filed. Applicantaccused has further contended that when the family members of
applicant-accused warned informant to not illegally interfere in the
family relation of applicant-accused with his own legally married wife
then this FIR is filed. Applicant-accused has further contended that if he
has left informant’s society since last three months. Applicant-accused
has further contended that it is alleged that if he done wrong behaviors
to informant’s ‘unnamed daughter’ and ‘unnamed daughter-in-law’,
however no complaint from them. He prayed to be released on bail.
5.

Prosecution has filed reply and stated that accused has concealed
from informant that he is married. Prosecution has contended that
accused has cheated informant financially. Prosecution has further
submitted there is possibility that accused might have objectionable
photos and videos of informant. Prosecution has further stated that
applicant-accused has given threat to kill informant. Prosecution has
further stated that if accused is released on bail then he may threaten
witnesses and destroy evidence.

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6.

Criminal Bail Application No.893/2022
As per the allegations in the FIR it is stated that since 7 years by
giving promise of marriage accused was staying as husband in the
house of informant. In the FIR itself it is stated that informant is having
a daughter and daughter-in-law. It shows that informant is married and
having son, daughter and daughter-in-law. In the FIR it is stated that
accused is already married. In the FIR it is alleged that informant came
to know later that accused is married. Accused has contended that he is
married and having children. Informant is alleging that since 6-7 years
accused is staying with her in her room. Accused is 50 years old.
Informant is also married and even having daughter-in-law. In such
circumstances, it is difficult to believe that informant was not knowing
that accused is already married and having children. Therefore, prima
faciely it appears that informant and accused might be stayyed together
though they are married to other persons. Informant is having a
daughter-in-law also. Accused is also having wife. In such circumstances
it is difficult to believe that accused gave false promise of marriage to
have consensual relations. Informant has contended that she gave
money to accused by taking loan and pledging her gold ornaments. It
appears, there is no written documents about the same. It is possible
that informant gave money to accused but there is nothing to show
accused had an intention to cheat informant at this stage. From all such
circumstances that informant is already married and accused is already
married and since 7 years they were staying together, prima faciely it
appears that parties were stayed together with free consent of each
other.
7.

Learned counsel for accused has cited Order of the Hon’ble
Gauhati High Court (High Court of Assam, Nagaland, Mizoram and
Arunachal Pradesh) in case of Bhaskar Basumatary S/o Sri Biswa
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Criminal Bail Application No.893/2022
Charan Basumatary Vs. The State of Assam And Anr. in Crl.
Pet./1030/2019, decided on 12.03.2021 and referred para No.14 which
states as under:
“ In Deepak Gulati v. State of Haryana reported in 2013 Crl. L.J.2990, in
paragraph 18, the Hon’ble Apex Court has observed as follows:
“18. Consent may be express or implied, coerced or misguided,
obtained willingly or through deceit. Consent is an act of reason,
accompanied by deliberation, the mind weighing, as in a balance, the
good and evil on each side. There is a clear distinction between rape
and consensual sex and in a case like this, the Court must very carefully
examine whether the accused had actually wanted to marry the victim,
or had mala fide motives, and had page No.# 10/12 made a false
promise to this effect only to satisfy his lust, as the latter falls within the
ambit of cheating or deception. There is a distinction between the mere
breach of a promise, and not fulfilling a false promise. Thus, the court
must examine whether there was made, at an early stage a false
promise of marriage by the accused; and whether the consent involved
was given after wholly, understanding the nature and consequences of
sexual indulgence. There may be a case where the prosecutrix agrees to
have sexual intercourse on account of her love and passion for the
accused, and not solely on account of mis-representation made to her
by the accused, or where an accused on account of circumstances which
he could not have foreseen, or which were beyond his control, was
unable to marry her, despite having every intention to do so. Such case
must be treated differently.” In the case in hand also the circumstances
that accused and informant are married to different persons and since 7
years staying together, prima paciely shows that their relationship was
consensual. Therefore, this case law is squarely applicable to the case in
hand.

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8.

Criminal Bail Application No.893/2022
Learned counsel for accused has cited judgment of the Hon’ble
Apex Court in case of Maheshwar Tigga vs. The State of Jharkhand in
Criminal Appeal No.635 of 2020 (Arising out of SLP (Crl.) No.393 of
2020), decided on 28.09.2020, reported in MANU/SC/0725/2020, in
which it is held that, “We have no hesitation in concluding that the
consent of the prosecutrix was but a conscious and deliberated choice,
as distinct from an involuntary action or denial and which opportunity
was available to her, because of her deep-seated love for the Appellant
leading her to willingly permit him liberties with her body, which
according to normal human behaviour are permitted only to a person
with whom one is deeply in love. The observations in this regard in
Uday (supra) are considered relevant:
25…It is usually happens in such cases, when two young persons
are madly in love, that they promise to each other several times that
come what may, they will get married. As stated by the prosecutrix the
Appellant also made such a promise on more than one occasion. In such
circumstances the promise loses all significance, particularly when they
are overcome with emotions and passion and find themselves in
situations and circumstances where they, in a weak moment, succumb
to the temptation of having sexual relationship. This is what appears to
have happened in this case as well, and the prosecutrix willingly
consented to having sexual intercourse with the Appellant with whom
she was deeply in love, not because the promised to marry her, but
because she also desired it. In these circumstances it would be very
difficult to impute to the Appellant knowledge that the prosecutrix had
consented in consequence of a misconception of fact arising from his
promise. In any event, it was not possible for the Appellant to know
what was in the mind of the prosecutrix when she consented, because
there were more reasons than one for her to consent.” In the case in
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Criminal Bail Application No.893/2022
hand also informant is 40 years old and accused is 50 years old and
both are married to other persons and having children from their own
spouses but staying together freely for 6-7 years, prima paciely shows
that their relationship was consensual. Hence, this case law is squarely
applicable to the case in hand.
9.

As discussed above, it appears prima faciely the relationship
between the parties were consensual one. Considering such allegations
and circumstances, it appears, no purpose is going to be served by
keeping accused behind the bar. There are no criminal antecedents of
accused brought on record. Hence, it will be proper to release accused
on bail on some conditions. Hence, pass following order:
ORDER
1.

Criminal Bail Application No.893 of 2022 is allowed.

2.

Accused viz. Mr. Sanjay Brindavan Mishra be released on bail on
his furnishing PB and SB of Rs.15,000/- (Rupees Fifteen
Thousand only), with one or more surety/sureties in the like
amount, in C.R.No.139/2022 for the offence punishable under
Sections 376(2)(n), 420 and 506(2) of IPC registered with
Ghatkopar Police Station on the following conditions:
(i) Accused is directed not to threaten or cause injury to
informant.
(ii) Accused is directed not to tamper with prosecution evidence.
(iii) Accused shall co-operate with the investigation of Police.
(iv) Accused is directed to attend concerned Police Station on
every Thursday between 5.00 p.m. to 06.00 p.m. till filing of final
report by police.
(v) Accused shall not directly or indirectly make any inducement,
threat or promise to any person acquainted with the facts of the
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Criminal Bail Application No.893/2022
case so as to dissuade them from disclosing such facts to the court
or any police officer.
(vi) Accused shall furnish his mobile number, phone number &
his all addresses including permanent, temporary and postal to
the Investigating Officer and in case of change or discontinue
with the mobile numbers provided to Investigating Officer will
inform new mobile number to Investigating Officer till the
conclusion of the trial. Investigating Officer to submit such
addresses and phone and mobile numbers to the Court.
3.

Criminal Bail Application No.893 of 2022 stands disposed of
accordingly.

Dt. 30.04.2022
Dictated on
Transcribed on
Signed on
(SONALI P. AGARWAL)
Additional Sessions Judge,
Gr. Bombay
: 30.04.2022
: 30.04.2022
: 30.04.2022
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Criminal Bail Application No.893/2022
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER
09/05/2022 at 04.00 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 30/04/2022
Judgment/Order signed by P.O.on
30/04/2022
Judgment/Order uploaded on
09/05/2022
(Court