Bombay HC Grants Anticipatory Bail To Woman Accused By Lesbian Partner Of ‘Breach Of Trust’

The Bombay High Court recently allowed a criminal appeal filed by a married woman and granted her protection from arrest in a case filed by her lesbian partner (complainant) for offences under Sections 354, 504, 506, 509 of the Indian Penal Code and under Sections 66(E) and 67 of the Information and Technology Act as well as under Sections 3(1)(r)(s)(w)(i)(ii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

Justice AM Badar set aside an order of the Sessions judge wherein the accused appellant’s plea for anticipatory bail was rejected.

Background & Submissions

Appellant’s counsel Ganesh Gole submitted that the complainant had not made any allegations against his client in her initial statement to the police recorded at Vile Parle Police Station, which would attract the provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

Moreover, Gole stated that the said FIR had been lodged against his client only after she filed an FIR against the complainant and a day before the complainant’s surrender, a supplementary statement was recorded in the present case wherein allegations attracting the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act were made against the appellant.

It was further submitted that bar of Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, due to delay in lodging FIR is not applicable on the case, in view of the judgment of the high court in the matter of Ambadas Devidas Yeralkar and Anr. vs. The State of Maharashtra and Anr.

The court noted that the complainant’s statement indicated that both parties knew each other since April 1997 and that their acquaintance “developed into intimacy, and subsequently, in lesbian relationship between both of them. WhatsApp conversation between the appellant/accused and the respondent no.2/First Informant is placed on record by the appellant/accused which shows that respondent no.2/First Informant was referring the appellant/accused as her “Beautiful wife to whom she loves always”.

Apart from this, the complainant said in her statement that “the appellant/accused has committed breach of trust by having sexual relations with her husband and others”.

The court noted: “This appears to be her principal grievance in the first statement dated 24th January 2017.  Apart from that, it is also alleged that the appellant/accused had misappropriated gold costing to Rs.1.50 lakh as well as six dresses purchased by the respondent no.2/First Informant for the appellant/accused.”

Final Order

The court observed that both parties had lodged FIRs against one another: “Thus, chequered history of lodging the FIRs and registration of crimes against each other between the appellant/accused and the respondent no.2/First Informant shows that both the parties, which according to the version of respondent no.2/First Informant, were in lesbian relationship with each other, are totally   hostile to each other, and now their relationship has turned into extreme enmity between both of them.”

As for the complainant’s allegation that the appellant/accused committed breach of trust of the respondent   no.2/First Informant by indulging in sexual relationship with other persons, despite being in relationship with her, the court said: “How such relationship is legal, is a question which need not be considered in this application but suffice to state that first version of the respondent no.2/First Informant is not containing any averments relating to commission of offences under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, by the appellant/accused.”

Justice Badar noted that the bar of Section 18 of the SC/ST Act was not applicable to the present case in view of the decision in Akash Rajendra Kadave vs. State of Maharashtra.

He further stated: “Taking overall review of the matter, it is seen that the FIR came to be lodged only because the relationship between the appellant/accused and the respondent no.2/First Informant turned sour, as according to the respondent no.2/First Informant, the appellant/accused had lost her interest in that relationship. Viewed from this angle, the FIR seems to be motivated and as such cannot come in way of enjoyment of personal liberty by the appellant/accused.”

Thus, the appeal was allowed and the appellant’s anticipatory bail application was allowed.