Madhav Krishna Vasave vs State of Maharashtra

Sandeep K. Shinde, J

Papers are produced for 'Speaking to Minutes' of the order dated 4th June, 2021.

In the line No. 6 to 8 of Paragraph No. 3 of the Order, the sentence ""The Complainant served as 'Karkun' at Byculla Police Station since 2015 until

she was transferred to Cyber Cell, Mumbai in 2019-20."" stands deleted.

In the line No. 6 of Paragraph No. 6 of the Order, the word ""Sim Card"", be deleted.

Appropriate corrections be carried out in the order.

Preciepe is disposed of.

This is an application for anticipatory bail in Crime No.60 of 2021 registered with Byculla Police Station for the ofences punishable under Sections

376(2)(n), 354(5), 417, 419, 427, 504, 506(2), 502 of the Indian Penal Code, 1860 read with Section 66(C) of the Information Technology Act, 2000. 2

At the outset, it may be stated that the learned Sessions Court vide order dated 17 th March, 2021 directed the State not to take coercive action

against the applicant; however, fnally declined to grant pre-arrest protection.

PROSECUTION CASE:

3 Applicant is attached to constabulary cadre of the Maharashtra Police since he joined force in 2006. Presently, he is serving Trafc Department,

Malabar Hill Division, Mumbai. Complainant got acquainted with the applicant around 2017 while being deployed for serving at Byculla Police Station.

It is apparent from the complaint that said acquaintance, developed into close friendship whereafter same advanced into love afair. Complainant had

alleged that applicant suppressed his marital status and posed himself, bachelor. However, in 2019 she came to know that applicant was married

person. Complainant alleged, the applicant had informed her, his wife was psychologically unwell/unft and hence, he desires to divorce his wife. She

alleged, in 2018 applicant had borrowed money from time to time, which was cumulatively to the tune of Rs.1,50,000/-. When she demanded the said

amount from him, she alleged, applicant abused her. Thus, she severed ties with him. However, to her dismay, his constant pressure and persuations

once again turned relationship to be amicable. Complainant alleged, on the false promise of marriage, he persuaded her to succumb to his physical

desires at various places and hotels. Later, relationship soured. Thus, complainant would allege that he was emotionally and physically abusing her and

pressurising her to maintain relationship. She would allege that applicant had recorded her obscene videos and was threatening to upload it on social

media. Specifcally, she alleged that applicant had sent obscene videos on her mobile set and threatened that he would disseminate the same to her

relatives if she would refuse to maintain the relationship with him. She alleged that in September, 2020, her marriage with one, Shailesh was proposed

by her family to which she had consented. It is the specifc allegation that on 29 th September, 2020 when she was commuting from Pune to Mumbai,

applicant called her persistently and had threatened to make the obscene videos viral if she did not alight at Sanpada, a en-route place. In these

circumstances, the complainant alighted at Sanpada. She alleged, the applicant snatched her mobile and damaged it. She alleged applicant removed

SIM and memory card and took the same away. Whereafter on the next day when she asked for the memory, SIM card of the mobile, applicant

declined to hand over it to her. Thereafter, the complainant disclosed, 'state of afairs', to the applicant's wife. She further alleged that on 1 st October,

2020, applicant had sent a message to sister of her fance. Resultantly, her proposed marriage broken down. She alleged, the applicant had sent

objectionable messages on the face-book account of her fance from his face-book account. Also, she alleged that applicant by using pass-word of her

face-book account, had sent objectionable messages to face-book account of sister of her fance. Whereafter she lodged complaint on 1st March,

2021, subject crime came to be registered against the applicant. 4 The learned counsel for the applicant submitted that the sexual relationship between

the applicant and the complainant was consensual and voluntary. It is contended that the complainant was aware about the marital status of the

applicant. It is submitted that there is diference between the 'breach of promise to marry' and 'not to fulfll the false promise'. It is submitted that the

applicant was not having any intention to deceive the complainant. In support of the contention, the learned counsel for the applicant has relied on the

judgment of the Hon'ble Supreme Court in the case of Pramod Pawar v. State of Maharashtra1 5 Mr. Nargolkar, the learned counsel for the applicant

would submit that the allegations of recording obscene videos are false and infact, applicant has handed over his mobile phone to Investigating Ofcer.

Mr. Nargolkar has relied on the afdavit of the complainant to contend that applicant does not possess any lap-top or computer or any other such

device, which can be used and capable of storage and/ or dissemination of alleged objectionable material. Mr. Nargolkar further contended that

allegations of snatching mobile and damaging the same occurred on 1 2019(9) SCC 608 2nd October, 2020 was false and concocted story. Mr.

Nargolkar in support of his contention argued that on 30th September (i.e., the next day), applicant had purchased new mobile for the complainant

from Vijay Sales India Private Limited. It is so evident from the copy of the invoice placed on record at Page 49 of the application. Therefore, it is

submitted that applicant has been falsely implicated. It is further submitted that since applicant has handed over mobile hand-set to the Investigating

Ofcer to verify/ascertain allegations of recording obscene pictures, his custodial interrogation is not required. Thus, argued that allegations of sexual

assault are false, since complaint and history of assault narrated by the complainant to Medical Ofcer, prima- facie, shows such relationships were not

forced on her and thus, consensual. Mr. Nargolkar further submitted that applicant is not likely to fee the Court of justice, since he is suspended from

the service after the subject crime was registered against him. On these grounds, applicant seeks pre-arrest bail 6 Application is opposed by the

learned counsel for the complainant. It is submitted that the SIM Card, damaged phone and the HD Card is material relevant and essential to retrieve

the obscene video/videos sent by the applicant. It is submitted that to recover the damaged phone, applicant's custody is imperative.

7 Be that as it may, the complaint, prima-facie suggests that love and sexual relationship between the applicant and the complainant was consensual

and voluntary since beginning. It may be stated that after lodging the complaint, complainant, was examined by the medical ofcer. In history narrated

by her to the medical ofcer shows that the complainant had last physical relationship with the applicant in August, 2020. The alleged incident of

damaging her cell phone in September, 2020 to cause dis-appearance of the evidence is prima-facie, doubtful in view of the fact that on second day,

i.e., on 30th September, 2020 a new hand-set was purchased from M/s. Vijay Sales as evident from the invoice copy of the same being placed on

record.

8 Thus, taking into consideration facts of the case and since applicant has now been suspended from the service, he would be available for

investigation and further since he has already handed over his mobile phone to the Investigating Ofcer for further analysis, prima-facie, I am of the

view that, case is made out for granting interim pre-arrest protection to the applicant. 9 In so far as the allegations of recording the obscene videos of

the complainant is concerned and further, the allegations that videos and messages were sent to the complainant are concerned, the learned Additional

Public Prosecutor has placed on record communication received from the Directorate of Forensic Science Laboratory. This communication shows

that forensic expert will trace, the deleted or available data, produced on social media account, available in the mobile phone. In the circumstances,

ofce of the Directorate of Forensic Science Laboratory is requested to expedite the process and submit opinion and report in relation to video images

recorded in the mobile phone of the applicant and related available data thereof to the Investigating Ofcer preferably on or before 15th July, 2021. The

concerned Investigating Ofcer shall also make eforts to contact respective companies operating social media platforms to trace and seek report in

respect of the use of such social media made by the applicant for uploading and making viral the alleged obscene videos relating to the complainant.

10 Investigating ofcer shall place the reports before this Court for further consideration on 19 th July, 2021. The Investigating Ofcer shall send a copy

of this order to the ofce of Directorate of Forensic Science Laboratory with a request to send a report on or before 16th July, 2021.

List the application for further consideration on 19th July, 2021.

11 In the meantime, in the event of arrest of the applicant in Crime No.60 of 2021 registered with Byculla Police Station, he shall be released on

executing PR bond for the sum of Rs.50,000/- with one or more sureties in like sum.

12 The applicant shall join the investigation as and when called and shall not contact the complainant or infuence prosecution witnesses.

List the application on 19th July, 2021 for further consideration.