( 1 ) HEARD learned counsel Mr. A. B. Gaikwad for the applicant and Mr. M. L. Dharashive, learned A. P. P. for the respondents, who has also made available the papers of investigation. ( 2 ) THE applicant is seeking direction under section 438 of the Code of criminal Procedure, in relation to the offence registered at C. R. No. 12 of 2006 against the applicant, under sections 376, 366, 323, 506 of Indian Penal Code at pathri Police Station, district Parbhani. ( 3 ) THE report is on record, which is filed by the prosecutrix on 28th of january, 2006. It is alleged by the prosecutrix, that she was married with one sudam Dagadu Salve 25 years prior to the filing of the report. She cohabitated with Sudam Salve for about five years. However, on account of disputes amongst themselves was residing at her parents place since then. Five years prior to this report, she developed love affairs with the present applicant. The consensual sex is also admitted by her and clarified in para No. 1 of the report itself. On 17th december, 2005 since she was being pestered by the applicant continuously, she discorded the relationship with the applicant. At that time, it was agreed by the applicant to pay an amount of Rs. 3 Lakhs to her. This agreement was reduced into writing on a bond paper of Rs. 100/ -. Orally, the applicant had admitted to make the payment within a period of one month, however, the said amount was not paid to her. On 25th January, 2006 at about 11. 40 hours, when she was residing at Parbhani, she has received a call on her cell phone bearing No. 932695718 from the present applicant. She has also given the cell phone number of the applicant as 9422177635. She was informed by the applicant, that he is ready to give her Rs. 3 lakhs and she should attend his office of Panchayat Samiti at Pathri. She accordingly left for Pathri by public transport bus from Parbhani. In the office of Panchayat Samiti, Pathri, the applicant was not available and, cri. Appln. No. 789 of 2006 decided on 23-3-2006. (Aurangabad) therefore, she rang him on his mobile from the coin-box telephone, which was installed at the relevant time, outside the gate of office of the said Panchayat samiti at Pathri. In the office of Panchayat Samiti, Pathri, the applicant was not available and, cri. Appln. No. 789 of 2006 decided on 23-3-2006. (Aurangabad) therefore, she rang him on his mobile from the coin-box telephone, which was installed at the relevant time, outside the gate of office of the said Panchayat samiti at Pathri. The applicant, at that time, was at "matheran Dhaba" on the pathri-Manwat highway. She had gone to that Matheran Dhaba at about 3. 00 p. m. She demanded the amount as agreed, however, she was being assaulted by him with her own footware. This assault was intervened and she was rescued by the owner of the said Matheran Dhaba and other servants viz. Ratnakar Shinde, shivaji etc. She had left the Matheran Dhaba. Since she was being terrified came to the highway for returning back to her house, however, she was being followed by the applicant. The applicant took her through one jeep. Said jeep was of Zilla parishad. The applicant, thereafter, alighted from the same jeep at hotel Vinayak in the town of Parbhani. She was also directed to step down from the vehicle. Thereafter, she was being taken by the applicant in the "hotel Harsh". At about 8. 00 p. m. the applicant sexually assaulted her and had an intercourse against her will and wish and under the threat. She was also being threatened by the applicant, not to disclose this incident to anyone. According to her, the applicant had gone to bathroom to answer the call of nature in the wee hours and availing this opportunity she left the hotel and went to her house. On account of the threats given by the applicant, she had not reported the matter to the police immediately and, thus, after two days the report was lodged. ( 4 ) LEARNED A. P. P. has referred to the papers of investigation. The hotel owner of Matheran Dhaba is being interrogated during the course of investigation. Name of the said hotelowner is Chandrakant Ranoji Magar. Substance of the statement of this witness Chandrakant is that, at the time of occurrence i. e. at about 3. 00 p. m. the applicant and prosecutrix were in the hotel. There was a quarrel amongst themselves. The prosecutrix was assaulted by the applicant and said quarrel was intervened by Chandrakant along with his servant. Substance of the statement of this witness Chandrakant is that, at the time of occurrence i. e. at about 3. 00 p. m. the applicant and prosecutrix were in the hotel. There was a quarrel amongst themselves. The prosecutrix was assaulted by the applicant and said quarrel was intervened by Chandrakant along with his servant. During the course of investigation, statements of Ashok and Rama, who were working with Chandrakant, at the relevant time, at Matheran Dhaba, are also recorded. Statements of these persons confirm the presence of the present applicant and prosecutrix, as well as quarrel amongst them. The record and proceeding also shows that the applicant and prosecutrix were in the Hotel Harsh at Parbhani. The evidence of Ravi Narayan Deshmukh shows that the applicant, along with the prosecutrix had visited the hotel and room No. 203 was given to him. He had booked the room under the disguised name as Kailas Kale. There was some squabbling between the applicant and the prosecutrix, at the time of admission and letting out the room. On suspicion this witness Ravi asked the applicant regarding his relationship with the proxecutrix. The prosecutrix/lady was not allowed to talk and it was told by the applicant that the prosecutrix was his wife. Thus, from the papers of investigation, the occupation of room No. 203 by the applicant, along with the prosecutrix, is established. The learned A. P. P. has also referred to report of the office of the applicant that he was not available on duty from 30th and 31st January. ( 5 ) THE learned counsel Mr. Gaikwad submits that abscondence cannot be considered to be a circumstance adverse to the applicant. He also submits that there is no medical evidence showing that the prosecutrix was sexually assaulted as she has claimed in the first information report. He submits that the custodial interrogation, in such offence, is not necessary. He has relied upon the judgment of the Rajasthan High Court in the matter of Abdul Majid vs. The State of rajasthan reported in 1981 Cri. L. J. 1316. Facts in the said judgment are different. Another judgment relied upon by the learned counsel for the applicant is of this Court at Goa. It is in the matter of Devidas Raghu Naik vs. The State reported in 1989 Cri. LJ. 252. L. J. 1316. Facts in the said judgment are different. Another judgment relied upon by the learned counsel for the applicant is of this Court at Goa. It is in the matter of Devidas Raghu Naik vs. The State reported in 1989 Cri. LJ. 252. There, in that case, the allegation against the applicant were regarding theft of the forest wood. This Court, in para 10 of the judgment observed - "admittedly, the logs had been already seized by the police and in the circumstances, it appears to me that Mr. B. Dcosta is right when he submits that in the circumstances there is no need whatsoever to arrest the applicant for the purposes of investigation. The same can be done without his arrest provided the applicant appears before the Police as and when necessary. The learned counsel for the applicant has also relied on the judgment of Punjab and Haryana High Court in the matter of Bansi Lal and another vs. The State of haryana reported in 7975 Cri. LJ. 472. There, in that case, the allegations against the applicant were for the offence under Prevention of Corruption Act. ( 6 ) THE applications for anticipatory bail under section 438 of Criminal procedure Code, needs to be considered basically on the facts, material collected by the investigating officer and circumstances obtainable at the time of consideration of the said application. Section 438 of the Criminal Procedure code, is amended by the State of Maharashtra and the applications, therefore, are being considered in the said amended provision. The judgments of the other High courts are under section 438 of the Criminal Procedure Code. There was no occasion for other High Courts to consider the amended provision laid down under section 438 of the Criminal Procedure Code by the State of Maharashtra. Apart from this, the judgments of the learned Single Judge of other High Courts, are having persuasive value alone. The judgment of Bombay High Court at Goa, which is being referred, undisputedly, is under the provisions of Forest Act and before the incorporation of amended section 438 of the Criminal Procedure Code, by the Maharashtra State amendment. The observations on the principles, if any laid down by this Court, on facts, is altogether different. The judgment of Bombay High Court at Goa, which is being referred, undisputedly, is under the provisions of Forest Act and before the incorporation of amended section 438 of the Criminal Procedure Code, by the Maharashtra State amendment. The observations on the principles, if any laid down by this Court, on facts, is altogether different. The judgment of the apex Court under section 438 of the Criminal Procedure Code, in the matter of adri Dharan Das vs. State of West Bengal reported in 2005 (2) Mh. L. J. 259 is relevant. The Apex Court has considered the personal liberty of an individual also, who is entitled to plead innocence. The Apex Court has also considered the significance of the arrest. Two paragraphs are relevant i. e. paras 16 and 19, which are reproduced hereinbelow :"16. Section 438 is a procedural provision which is concerned with the personal liberty of an individual who is entitled to plead innocence, since he is not on the date of application for exercise of power under section 438 of the Code convicted for the offence in respect of which he seeks bail. The applicant must show that he has reason to believe that he may be arrested in a non-bailable offence. Use of the expression reason to believe that he may be arrested in a non-bailable offence (sic ). Use of the expression reason to believe shows that the applicant may be arrested must be founded on reasonable grounds. Mere "fear" is not belief for which reason it is not enough for the applicant to show that he has some sort of vague apprehension that someone is going to make an accusation against him in pursuance of which he may be arrested. (Grounds on which the belief on the applicant is based that he may be arrested in non-bailable offence must be capable of being examined. If an application is made to the High Court or the Court of Session, it is for the court concerned to decide whether a case has been made out for granting the relief sought. The provisions cannot be invoked after arrest of the accused. A blanket order should not be generally passed. It flows from the very language of the section which requires the applicant to show that he has reason to believe that he may be arrested. The provisions cannot be invoked after arrest of the accused. A blanket order should not be generally passed. It flows from the very language of the section which requires the applicant to show that he has reason to believe that he may be arrested. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicants apprehension that he may be arrested is genuine. Normally, a direction should not issue to the effect that the applicant shall be released on bail "whenever arrested for whichever offence whatsoever". Such blanket order should not be passed as it would serve as a blanket to cover or protect any and every kind of allegedly unlawful activity. An order under section 438 is a device to secure the individuals liberty it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations likely or unlikely. On the facts of the case, considered in the background or legal position set out above, this does not prima facie appear to be a case where any order in terms of section 438 of the Code can be passed. ""19. Ordinarily, arrest is a part of the process of investigation intended to secure several purposes. The accused may have to be questioned in detail regarding various facets of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime. There may be circumstances in which the accused may provide information leading to discovery of material facts. It may be necessary to curtail his freedom in order to enable the investigation to proceed without hindrance and to protect witnesses and persons connected with the victim of the crime, to prevent his disappearance to maintain law and order in the locality. For these or other reasons, arrest may become inevitable part of the process of investigation. The legality of the proposed arrest cannot be gone into in an application under section 438 of the Code. The role of the investigator is well defined and the jurisdictional scope of interference by the Court in the process of investigation is limited. The Court ordinarily will not interfere with the investigation of a crime or with the arrest of accused in a cognizable offence. The role of the investigator is well defined and the jurisdictional scope of interference by the Court in the process of investigation is limited. The Court ordinarily will not interfere with the investigation of a crime or with the arrest of accused in a cognizable offence. An interim order restraining arrests, if passed while dealing with an application under section 438 of the Code will amount to interference in the investigation, which cannot, at any rate, be done under section 438 of the Code. " ( 7 ) THE seriousness of the offence, alleged, is also significant. In the present case, in my view, there is sufficient material, showing the involvement of the present applicant, in an offence punishable under section 376 of the Indian Penal code. Bad character of the prosecutrix cannot be a ground to have intercourse with the prosecutrix without her will and wish. The consensual sexual act may be a defence which can be examined at the time of trial by the Court concerned on evidence. The Apex Court has time and again said that the prosecutrix cannot be said to be accomplice to the alleged offence of rape. All these matters can be considered at the time of trial and on the basis of the evidence brought before the court trying the case. The plea of false implication, raised by the applicant, prima facie, on the background of the statements of hotel owner and servants at two places, at Matheran Dhaba and Harsh Hotel, Parbhani, falsifies the claim. In this view of the matter, in my view, no case for grant of anticipatory bail, under section 438 of the Criminal Procedure Code, is established. Issuance of directions under section 438 of the Code of Criminal Procedure, is a matter of discretion to be exercised in accordance with the provisions laid down under section 438 and judicially. The trial Judge has justifiably exercised the discretion while rejecting the application. ( 8 ) IN this view of the matter, application filed by the applicant for anticipatory bail, stands rejected. The observations made in this order are of prima facie nature and shall be not influence the Court concerned while trying the offence alleged against the applicant. The application accordingly stands dismissed and disposed of. Application dismissed.