While displaying rationally the much needed generosity in its judgment in a case of consensual relationship, the Bombay High Court as recently as on October 12, 2022 in an extremely laudable, learned, landmark and latest judgment titled Chetan Chandrakant Tambatkar Vs The State of Maharashtra in Bail Application No. 3680 of 2021 in exercise of its criminal appellate jurisdiction has most rightly granted the bail that was being sought to a 26-year-old man accused in a rape case subject to the condition that he marries the survivor, currently untraceable, if she is located within a year.

It must be noted that the accused assured the Court through an affidavit filed earlier this year that he was willing to solemnize marriage and accept paternity of the child. However, the public prosecutor informed the Court that the girl was untraceable and the child who had been admitted to child care centre, had already been given in adoption. It must be mentioned that the Court passed the order on a bail plea filed against the man in a case of rape, kidnapping and cheating.

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench of the Bombay High Court comprising of Hon’ble Justice Smt Bharati Dangre sets the ball rolling by first and foremost putting forth in para 1 that:
The Investigating Officer has filed the affidavit, wherein he has narrated the steps taken by him to trace the victim girl on whose complaint C.R. No. 65 of 2020 was registered. The Investigating Officer state on oath that he tried to establish contact with the victim girl on her mobile number but it is temporarily out of service. He also visited the address of the victim as given in the FIR, to be revealed that she is not residing on the said address. He make a categorical statement that all efforts are being taken to trace the victim girl. The said affidavit filed on 10/10/2022 is taken on record.

As we see, the Bench then points out in para 2 that:
Despite the efforts taken by the Investigating Officer since the victim girl is not served, I have chosen to hear the learned APP in opposing the application filed by the applicant seeking his release on bail, on being accused of offences punishable under Sections 376, 366, 420 of IPC.

To put things in perspective, the Bench then envisages in para 3 that:
With the assistance of learned counsel for the applicant and the learned APP, I have perused the charge-sheet filed in the subject C.R. on the complaint filed by the prosecutrix aged 22 years. She had reported to the police station, narrating that she was acquainted with the applicant since 2018, as he was residing in the neighbourhood. The proximity developed between the two and according to the complainant she shared a love relationship with him.

They decided to get married and even the members of both the families were aware of such a relationship, to which there was no opposition. According to the prosecutrix, he established physical relationship with her on 5 to 6 occasions and she trusted him as he had assured that he would solemnize the marriage.

While getting to the bottom of the matter of prosecutrix abandoning her child and fleeing is then dwelt upon and explained elaborately by the Bench in para 4 wherein it is enunciated that:
She was not getting her menses regularly and in October, 2019 she noticed some unusual changes in her body and therefore when she was asked to undergo Sonography, it was revealed that she was carrying a pregnancy of 6 months.

She disclosed this fact to the applicant but some how he avoided to establish contact with her and there was a refusal to perform the marriage. She left the residential premises since she wanted to keep her pregnancy secret and delivered a child on 27/01/2020. On 30/1/2020 she was discharged from the hospital and according to her dropped the child in a premises which was compounded and which had a big gate, where she abandoned the child and kept a watch, when the watchman took the child inside, she left the premises. Pertinent to note that for the said act of abandoning the child C.R. No. 83 of 2020 is registered with L.T. Marg Police Station and charge-sheet has been filed against the victim girl. That may be a possible reason why she is fleeing from the course of justice.

Quite significantly, the Bench then hastens to add in para 5 stating that:
The applicant has filed his affidavit, where he has made a solemn statement that he is ready to marry the victim girl and also ready to accept the paternity of the child born, out of the relationship. Affidavit of his parents is also placed on record, where they corroborate the applicant. However, since the victim girl herself is not traceable and the child, who was admitted in the child care, as per the instructions of the learned APP is already given in adoption.

Finally and far most significantly, the Bench then concludes by holding most emphatically in para 6 that:
In such circumstances when the incident was reported, the victim girl was major and she has already stated that the relationship was consensual and though a specific statement was made on behalf of the applicant and his family that they are ready to solemnize the marriage, the victim is not traceable, in above circumstances, I deem it appropriate to release the applicant on bail subject to compliance that if the victim girl is traced within a short while and say in a period of one year, he shall solemnize marriage with her, but he shall not be bound by the statement beyond one year.

Hence the following Order.

ORDER

1. Application is allowed.
    
2. Applicant - Chetan Chandrakant Tambarkar shall be released on bail in connection with C.R. No. 65 of 2020 registered with Meghwadi Police Station on furnishing P.R. Bond to the extent of Rs 25,000/- with one or two sureties in the like amount.
    
3. The applicant shall mark his attendance to the concerned police station on first Monday of every month between 10:00 a.m. to 12:00 noon for a period of 1 year and thereafter as and when directed.
    
4. The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing the facts to Court or any Police Officer. The applicant shall not tamper with evidence.

All said and done and having discussed this remarkable, robust, rational and recent judgment threadbare, we see ostensibly that the Bombay High Court has displayed a fairly liberal approach by commendably granting bail to a 26-year-old men who was arrested in a rape case on the condition that he would have to marry the victim girl whom he had left after finding that she was pregnant to which he readily agreed and also consented to accept the paternity of the child that was born out of the relationship. The prime reason for the Bombay High Court taking such a liberal approach in this case is that the victim girl was major and most of all, she had stated clearly in her evidence that the relationship was consensual. There is no prima facie reason to differ with what Hon’ble Ms Justice Smt Bharati Dangre has held so very cogently, commendably and convincingly in this leading case!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh.