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    This order summarizes a bail application hearing in the Court of Sessions in Mumbai, India. [1] The applicant, Dharamveer Omprakash Yadav, is seeking bail related to an FIR registered against him for various offenses including rape. [2] The applicant's lawyer argued he was falsely implicated and the relationship was consensual, citing several past court cases. [3] However, the state and informant's lawyers opposed bail, arguing the offense was serious and the applicant could threaten the informant. [4] Considering the facts and law, the court granted bail to the applicant but imposed conditions to secure his presence and protect the informant's rights.

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    This order summarizes a bail application hearing in the Court of Sessions in Mumbai, India. [1] The applicant, Dharamveer Omprakash Yadav, is seeking bail related to an FIR registered against him for various offenses including rape. [2] The applicant's lawyer argued he was falsely implicated and the relationship was consensual, citing several past court cases. [3] However, the state and informant's lawyers opposed bail, arguing the offense was serious and the applicant could threaten the informant. [4] Considering the facts and law, the court granted bail to the applicant but imposed conditions to secure his presence and protect the informant's rights.

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    This order summarizes a bail application hearing in the Court of Sessions in Mumbai, India. [1] The applicant, Dharamveer Omprakash Yadav, is seeking bail related to an FIR registered against him for various offenses including rape. [2] The applicant's lawyer argued he was falsely implicated and the relationship was consensual, citing several past court cases. [3] However, the state and informant's lawyers opposed bail, arguing the offense was serious and the applicant could threaten the informant. [4] Considering the facts and law, the court granted bail to the applicant but imposed conditions to secure his presence and protect the informant's rights.

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    © All Rights Reserved
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    30 views7 pages

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    kamleshyadavmoney
    This order summarizes a bail application hearing in the Court of Sessions in Mumbai, India. [1] The applicant, Dharamveer Omprakash Yadav, is seeking bail related to an FIR registered against him for various offenses including rape. [2] The applicant's lawyer argued he was falsely implicated and the relationship was consensual, citing several past court cases. [3] However, the state and informant's lawyers opposed bail, arguing the offense was serious and the applicant could threaten the informant. [4] Considering the facts and law, the court granted bail to the applicant but imposed conditions to secure his presence and protect the informant's rights.

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    of 7

    IN THE COURT OF SESSIONS, AT DINDOSHI (BORIVALI

    DIVISION), GOREGAON, MUMBAI

    BAIL APPLICATION NO.215 OF 2023


    (CNR NO.MHCC05­001284­2023)
    IN
    C.R. NO.31/2023
    (POLICE STATION, BANGUR NAGAR)

    Dharamveer Omprakash Yadav )


    Age: 28 Years, Occupation : Self employed, )
    having permanent address at : )
    Chherihawa, Katarari, Deoria, ) ..Applicant
    Uttar Pradesh – 274 001.
    Versus
    State of Maharashtra, )
    (Through Bangur Nagar Police Station) ) ..Respondent

    Adv. Mr. Shailendra Mishra for the applicant.


    APP Mr. Shailesh Pachapohar for the State.
    Adv. Mr. Vishal Hegde alongwith Adv. Monel Thakkar for the
    informant.

    Coram : His Honour Addl. Sessions Judge Ashish Ayachit


    (Court Room No. 8)
    Date : 27th March, 2023.

    ORDER

    This is a regular bail application of the applicant/accused


    for releasing him on bail under Section 439 of Code of Criminal
    Procedure in relation with Crime No.31/2023, registered with Bangur
    Nagar Police Station for the offences punishable under Sections 376(2)
    (n), 417, 420, 406, 506 and 509 of Indian Penal Code and Section 67
    BA-215/23 2 Order

    of the Information Technology Act.

    2. Perused the application and say of Investigation Officer as


    well as original informant

    3. Heard Adv. Mr. Shailendra Mishra for the applicant, APP


    Mr. Shailesh Pachapohar for the State and Adv. Mr. Vishal Hegde
    alongwith Adv. Monel Thakkar for the original informant.

    4. Learned advocate for the applicant/accused submitted that


    the applicant/accused has lodged report with National Cyber Crime
    Reporting Portal against the informant and other person on 02.01.2023
    for creating false Instagram Accounts on various name. He submitted
    that the original informant and other persons connected with her time to
    time threatened the applicant/accused with dire consequences. He
    submitted that the informant made a false account on Instagram by
    name of the applicant/accused. He has taken me through various
    documents filed along with bail application. He submitted that
    thereafter, the applicant has been falsely implicated. According to him,
    most part of investigation in respect of the applicant/accused is
    completed. He invited my attention to the say of Investigation Officer
    and submitted that the informant has refused undergo medical
    examination. He submitted that the mother of the applicant/accused is
    suffering from cancer. Moreover, he submits that whether it is an offence
    of rape would requires trial. It will be be decided during the bail
    application. Hence, submits that the further detention in Judiciary
    custody is not required. According to him, the applicant/accused is ready
    to abide any conditions which may imposed by the Court. Therefore, he
    requested to release the applicant/accused on bail. Learned advocate
    Mr. Mishra relied upon various judgment of the Hon'ble High Court as
    well as Hon'ble Apex Court which are as under :­
    BA-215/23 3 Order

    ● Sonu alias Subhash Kumar V. State of Uttar Pradesh & Anr.,


    2021 SCC Online SC 181. It is regarding the quashing of FIR of
    Section 376 of Indian Penal Code registered, on the basis of the
    allegations (i) The relationship between parties was of a
    consensual nature; (ii) The parties were in the relationship for
    about a period of one and a half years; and (iii) Subsequently,
    refusal to marry. The Hon’ble Apex Court quashed FIR .

    ● Pramod Suryabhan Pawar Vs. State of Maharashtra & Anr.,


    (2019) 9 SCC 698. It is regarding “consent” to the sexual acts
    described in the main body of Section 375, the offence of rape has
    occurred. While Section 90 does not define the term “consent”, a
    “consent” based on a “misconception of fact” is not consent in the
    eye of the law.

    ● Mahesh Balkrishna Dandane Vs. State of Maharashtra, 2014


    SCC Online Bom 348. It is regarding the Anticipatory bail in the
    case of rape under Section 376(2)(n) of Indian Penal Code. It is
    observed by the Hon’ble High Court, “every breach of promise to
    marry cannot be said to be either a cheating or rape. A couple in
    love with each other may be having sexual relationship and realize
    that they are not compatible and sometimes love between the
    parties is lost and their relationship dries gradually, then earlier
    physical contacts cannot be said as rape. A marriage cannot be
    imposed, as a search of life partner depends not only on physical
    compatibility but also on emotional, psychological bonding. It is a
    matter of choice related to individual's notions of suitability,
    emotional, psychological comfort and biological requirement.
    Thus while granting anticipatory bail, all these factors are required
    to be considered.”

    ● Gulab Vs. State of Maharashtra, 2022 SCC Online Bom 268. It is


    also regarding grand of anticipatory bail for the offences
    punishable under Sections 376, 376(2)(n), 417 of the Penal Code.

    ● Ansar Mohammad Vs. State of Rajasthan, 2022 SCC Online SC


    886. It is also regarding pre­arrest bail under Section 438 of the
    Criminal Procedure Code, 1973 for the offences under Sections
    376(2)(n), 377 and 506 IPC. It is observed by the Hon’ble Apex
    Court that, “when relationship for a period of four years and
    informant was 21 years of age and was willingly been staying with
    accused and had the relationship. If the relationship is not
    working out, the same cannot be a ground for lodging an FIR for
    the offence under Section 376(2)(n) IPC”.
    BA-215/23 4 Order

    ● Shiva Amarnath Dubey Vs. State of Maharashtra, 2020 SCC


    Online Bom 11466. It is also regarding grant of anticipatory bail
    for the offences punishable under Section 376(2)(n) of the Penal
    Code.

    ● M.K. Shivakumar Vs. State of Karnataka, 2020 SCC Online Kar


    471. It is also regarding anticipatory bail for FIR is registered
    under Sections 354­A, 376(2)(n), 417 & 506 of IPC.

    ● Pramod Dhumal Vs. State of Maharashtra, 2021 SCC Online


    Bom 34. In this case, the Hon’ble High Court has granted pre­
    arrest bail to the accused for the offence punishable under Section
    354­D of IPC and Section 67A of the Information Technology Act
    2000.

    ● Karan Oberoi Vs. State of Maharashtra 2019 SCC Online Bom


    991. The Hon’ble High Court granted bail for the alleged offences
    punishable under Sections 376, 376(2), 384, 328 and 506 of the
    Penal Code, 1860.

    5. On the strength of these authorities, he submitted that


    further detention of the applicant/accused is not warranted in the
    present crime. Hence, He requested to release the applicant/accused on
    bail.

    6. As against this, learned APP Mr. Shailesh Pachapohar for the


    State opposed the bail application on the ground that the offence is
    serious. There is prima facie involvement of the applicant/accused in
    crime. He will misuse liberty, if released on bail and will not available
    for trial as he is not permanent inhabitant of Mumbai. Hence, he
    requested to reject the bail application.

    7. In the same tune, learned Adv. Mr. Vishal Hegde for the
    informant submitted that the consent of the informant has been obtained
    by misrepresentation. He has taken me through relevant provisions of
    Indian Penal Code regarding consent as well as Section 376 of I.P .C. He
    submitted that the offence is serious. The informant is a model and
    actress by profession. The applicant/accused snapped intimated photos
    BA-215/23 5 Order

    of the informant with him and therefore, he will misuse his liberty and
    threaten the informant and other witnesses. The police has not yet
    recovered the photographs from the applicant/accused and therefore, he
    requested to refuse bail application. According to him, the case laws
    cited are not applicable to the facts and circumstances of the present
    case.

    8. I have carefully gone through the record. Without


    commenting over the merit of the case, let me note that the
    applicant/accused has lodged the report and thereafter, the present FIR
    has been lodged on 21.01.2023. The applicant/accused in pursuance of
    the said accusation, arrested and produced before the Magistrate. His
    police custody remand has been sought. The applicant/accused is in
    judicial custody. The informant is major and actress by profession.
    There is report lodged by the applicant/accused against her prior to the
    present FIR. Therefore, keeping in mind, the law laid down in the above
    mentioned citations. I am of considered view that while granting or
    refusing the bail gravity of offence is one of the factor, but it would not
    be sole reason to reject the bail. The Hon’ble Apex Court time and again
    remind to the criminal courts that bail is rule and jail is exception. In
    the case in hand, keeping in the mind material placed before me with
    bail application, I am of view that that it would not proper and in the
    interest of Justice to keep the applicant/accused behind the bar and in
    judicial custody. So far as apprehension raised by the informant and
    the Investigation Officer is concerned, I am imposing proper conditions
    to the applicant/accused to secure his presence for trial and protect the
    right of the informant. Accordingly, I pass the following order:­

    ORDER
    1. Bail Application No.215/2023 is allowed.
    BA-215/23 6 Order

    2. The Applicant­Dharamveer Omprakash Yadav be released on bail


    on executing personal bond in the sum of Rs. 50,000/­ (Fifty
    Thousand Rupees Only) with two sureties in the like amount
    each, one from Mumbai and other from his native place, in Crime
    No.31/2023 registered with Bangur Nagar Police Station for the
    offences punishable under Sections 376(2)(n), 417, 420, 406, 506
    and 509 of I.P.C. and Section 67 of the Information Technology
    Act, on the following conditions:
    (i) He shall not in any way publish on any social media any material
    connecting with the informant.
    (ii) He shall not commit any offence or similar offence during the bail
    period.
    (iii) He shall not travel abroad, without previous permission of the
    concerned court and shall furnish his passport details with the
    Investigation Officer.
    (iv) He shall co­operate to the Investigation Officer and shall attend
    police station as and when called by Investigation Officer, by
    advance written notice of one day.
    (v) He shall not in any way meet or use any threat to the informant or
    any witnesses of the case.
    3. Bail before the concerned Magistrate.
    4. Bail Application No.215/2023 stands disposed of, accordingly.
    Digitally signed
    by ASHISH
    ARVIND
    AYACHIT
    Date: 2023.03.28
    17:40:58 +0530

    Date: 27.03.2023 (Ashish Ayachit)


    Additional Sessions Judge,
    City Civil & Sessions Court,
    Borivali Division, Dindoshi

    Dictated by HHJ on : 27.03.2023


    Transcribed on : 27.03.2023
    Signed by HHJ on : 27.03.2023
    BA-215/23 7 Order

    “CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL


    SIGNED JUDGMENT/ORDER.”

    UPLOAD DATE ATUL SURYAKANT BHOGTE


    AND TIME : 28.03.2023 5.30 P.M. NAME OF STENOGRAPHER

    Name of the Judge (with Court Room No.) HHJ Shri Ashish Ayachit
    (Court Room No.8)
    Date of Pronouncement of Judgment/Order 27.03.2023
    Judgment/Order signed by P.O. on 27.03.2023
    Judgment/Order uploaded on 28.03.2023

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