Akshay Rohidas Khirid Vs the State of Maharashtra

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52-BA-578-2021.odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL BAIL APPLICATION NO. 578 OF 2021

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Akshay Rohidas Khirid …Applicant
Versus
The State of Maharashtra and Anr.…Respondents

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Ms.Deepa Punde i/b Sachin S. Punde, for the Applicant.
Mr. Ameet A. Palkar, APP, for the State-Respondent No.1.
Ms. Ameeta Kuttikrishnan, for Respondent No.2.

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CORAM : V. G. BISHT, J.

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 RESERVED ON : 25th October, 2021.
 PRONOUNCED ON : 15th November, 2021.

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PC:-

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. The present application has been moved by the applicant under Section 439 of the Code of Criminal Procedure in Crime No. 205 of 2019 registered with Haveli Police Station, Pune Gramin, District-Pune for the offences punishable under Sections 363, 366, 376(2)(i) and (n), 504 r/w 34 of the Indian Penal Code and Sections 4, 6 and 21 of Protection

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of Children from Sexual Offences Act, 2012 and Section 9 of Prohibition
of Child Marriage Act, 2007.

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Rekha Patil 1/8

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2It is the case of prosecution that the victim and the applicant are
neighbours. The applicant had expressed his love for victim many times
whenever the victim used to pass through the road. According to
prosecution, on 13/04/2019 the applicant took victim to a temple and
said that he cannot live without her and then tied a mangalsutra around
her neck. The victim could not say, ‘no’. When this fact came to be
knowledge of the family members of victim, on 21/04/2019 in the
presence of select family members of the victim and the applicant a
marriage ceremony was carried out as per Hindu rites. The victim then
started living as a wife of applicant at her conjugal home. The
prosecution alleges that after 2-3 months the applicant, his family
members started harassing the victim, send the victim to her parental
home by saying that they do not want to keep victim in their house. The
victim accordingly lodged the report.

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3Ms. Punde, learned Counsel for the applicant, submits that no case
is made out against the applicant under relevant provisions of Indian
Penal Code, Protection of Children from Sexual Offences Act, 2012 and
Prohibition of Child Marriage Act, 2007 (“POCSO Act” for short)
According to learned Counsel, the marriage ceremony was performed in
the very presence of family members of the victim and as also family

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Rekha Patil 2/8

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52-BA-578-2021.odt

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members of the applicant and in view of the ratio laid down in the case
of S. Varadarajan V/s. State of Madras,1. It can not be said that the
victim was taken out of lawful guardianship of the parents of victim.
Moreover, there are no criminal antecedents and the investigation is
completed leading to the filing of the charge-sheet and therefore,
application deserves to be allowed, urged learned Counsel.

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4Mr. Palkar, learned APP, on the other hand, opposed the
submissions by inviting my attention to the statement of victim recorded
under Section 164 of Criminal Procedure Code. He further submitted
that her statement is in consonance with the FIR, there is medical
certificate and the fact remains that the victim was minor on the date of
solemnization of marriage. In such circumstances, having regard to the
seriousness of offence, the application does not merit attention.

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5Ms. Kuttikrishnan, learned Counsel for respondent no.2, also
opposed the submission of the learned Counsel for applicant by
contending that the victim was not only minor but was forced to marry
with the applicant and later on came to be abandoned. There being no
merit in the application, the same be rejected, argued learned Counsel.

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1 AIR 1965 SUPREME COURT 942

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Rekha Patil 3/8

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6Perused the FIR and investigation papers. If the FIR is read
carefully then it appears that on the date of lodging of FIR i.e. on
10/08/2019, the victim was 15 years old. Although, it is alleged that on
13/04/2019 she was taken to the temple where the applicant allegedly
tied a mangalsutra around her neck but the victim could not say ‘no’.
The subsequent development on 20/04/2019 and 21/04/2019 are of
great significance. On 20/04/2019, as per the contents of FIR, the
father of victim tried to persuade the people from the side of applicant
that his daughter is still young and is of 16 years old but he was
persuaded to marry his daughter to applicant. Accordingly, on
21/04/2019 in the select gathering of the family member of victim
including her parents and the family members of applicant, the marriage
was performed as per Hindu rites.

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7It seems that the differences started after 2-3 months of the said
marriage when the applicant and his family members started subjecting
victim to harassment and ultimately they refused to keep the victim in
their house. It is only then present FIR came to be filed.

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8 In the case of S.Varadrajan V/s State of Madras (Supra) , the Hon’ble Apex Court has held thus:

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Rekha Patil 4/8

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52-BA-578-2021.odt

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“There is a distinction between "taking" and
allowing a minor to accompany a person. The two
expressions are not synonymous though it can not be laid
down that in no conceivable circumstances can the two
be regarded as meaning the same thing for the purposes
of S.361. Where the minor leaves her father's protection
knowing and having capacity to know the full import of
what she was doing voluntarily joins the accused person,
the accused can be said to have taken her away from the
keeping of her lawful guardian. Something more has to
be shown in a case of this kind and that is some kind of
inducement held out by the accused person or an active
participation by him in the formation of the intention of
the minor to leave the house of the guardian.

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It would, however, be sufficient if the prosecution
establishes that though immediately prior to the minor
leaving the father's protection no active part was played
by the accused, he had at some earlier stage solicited or
persuaded the minor to do so. If evidence to establish one
of those things is lacking it would not be legitimate to
infer that the accused is guilty of taking the minor out of
the keeping of the lawful guardian merely because after
she has actually left her guardian's house or a house
where her guardian had kept her, joined the accused and
the accused helped her in her design not to return to her
guardian's house by taking her along with him from place
to place. No doubt, the part played by the accused could
be regarded as facilitating the fulfillment of the intention
of the girl. But that part falls short of an inducement to
the minor to slip out of the keeping of her lawful
guardian and is, therefore, not tantamount to "taking".”

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Rekha Patil 5/8

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52-BA-578-2021.odt

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9If the chronology of events in the case in hand is scrutinized
carefully and cautiously, it would firstly be seen as per the contents of
FIR and as told by the father of victim that the victim was 16 years old,
she went on her own along with applicant to a temple, allowed him to
tie mangalsutra around neck on 19/04/2019. The parents of the victim
were persuaded to the marriage ceremony to which they agreed and
therefore, ultimately on 21/04/2019 the marriage ceremony of victim
and the applicant was performed in the very presence of family members
of the respective family including the parents of the victim. This events
necessarily do not even remotely suggest that the victim was compelled
to leave her parents house. It is also not a case of prosecution that the
victim was given a false promise of marriage. Rather the marriage
ceremony was performed with full consent of the parents of the victim.
In such circumstances, I do not think that the applicant can be said to
have taken victim away from the keeping of her lawful guardian.

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10So far as the offence punishable under the provisions of POCSO
Act is concerned, one can’t have a reservation about the nature of
provisions i.e. provisions are quite stringent. However, in the given set of
facts and circumstances, these provisions can not fetter any restrictions
on the discretionary power of the Court and to deter the Court from

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Rekha Patil 6/8

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52-BA-578-2021.odt

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enlarging the accused from bail, if otherwise the accused is entitled to be
admitted on bail.

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11As already noted, the marriage was not only performed with the
consent of the parents of the applicant and that of victim but she also
resided with applicant for about 2-3 months in her conjugal home. It
may be that she was 16 years old at the time of incident but the consent
of parents and as also the conduct of victim goes to show that not only
the victim but her parents had sufficient knowledge of the
understanding as to full import of what the victim would be doing and
that is why only thereafter they of their own will allowed the marriage
ceremony to be performed.

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12I am, therefore, satisfied. Having regard to the peculiar facts and
circumstances of the case, that the applicant deserves to be admitted on
bail. Accordingly, I am inclined to allow the application. Hence, the
following order.

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ORDER

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(i)Applicant- Akshay Rohidas Khirid shall be released on bail in C.R.
No. 205 of 2019 registered with Haveli Police Station, Pune Gramin,
District-Pune on his executing P .R. bond in the sum of Rs.25,000/- with

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Rekha Patil 7/8

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one or more sureties in like amount.

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(ii)The applicant shall not tamper with prosecution evidence.

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(iii)Parties to act on copy of this order duly authenticated by the

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Sheristedar of this Court.

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(iv) The application is allowed in the aforesaid terms.

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REKHA PRAKASH PATIL

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 (V. G. BISHT, J.)

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Digitally signed by REKHA PRAKASH PATIL Date: 2021.11.15 16:12:13 +0530

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Rekha Patil 8/8

Akshay Rohidas Khirid v. the State of Maharashtra

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Akshay Rohidas Khirid v. the State of Maharashtra

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