High Court of Delhi was dealing with the petition filed under Section 439 of Cr.P.C. for grant of bail in FIR which was filed under Sections 323, 363, 377, 420, 506 of IPC read with section 3 (1) (r), 3 (1) (w) (i), 3 (1) (w) (ii) and 3 (2) (v) of Schedule Caste and Schedule Tribe (Prevention of Atrocities) Act, 1989.
Brief Facts:
The complainant is working in Central Industrial Security Force as a constable. The Prosecutrix filed a complaint against Parveen Kumar (petitioner) who is also a constable in CISF stating that that the petitioner herein promised to marry the prosecutrix and raped her on several occasions from mid-2019 till February 2021. The petitioner took the complainant's ATM card and withdrew money from her account whenever he wanted. The complainant made it clear to the petitioner well in advance that the complainant belongs to a Scheduled Tribe and that there will be no future of their relationship, to which the petitioner persuaded that he would convince his parents and that the things will work out. The petitioner assured her that their belonging to different castes would not be a hindrance to their marriage. On 03.12.2020 the couple solemnized their marriage at Prachhin Hanuman Mandir, Delhi. The complainant’s family got to know that the family of petitioner did not agree for the marriage since inception and that the petitioner was engaged to some other girl and thereafter the petitioner stopped picking and replying to the complainant's phone calls and messages respectively. The petitioner used to beat her and make forceful physical relations with her and also used to make caste based derogatory abuses/remarks. The petitioner made the complainant shift her house to a rented accommodation in Aya Nagar, New Delhi where they started living together.
Petitioner’s Contention:
Learned counsel for the petitioner submitted that the trial court failed to consider that the incident allegedly occurred on 12.06.2020 and, thereafter, both the parties started living together in a rented accommodation in Aya Nagar, New Delhi. It was further contended that the couple was in a live-in relationship at the said rented accommodation. It was further stated that there was no false promise of marriage as they were in a live-in relationship.
It was stated that the petitioner is willing to marry the complainant, but the complainant is refusing to marry him. He further stated that the learned Trial Court failed to appreciate that the alleged story given by the prosecutrix that is the petitioner was avoiding her calls and messages is true as the petitioner made a false statement of being employed in Air Force and he did not want to meet her but the prosecutrix went Bangalore to meet him.
It was stated that the trial would take a long time and keeping the petitioner in custody would not serve any purpose as the petitioner is the sole bread-earner of the family. The learned counsel for the petitioner also places reliance on a judgment passed by the Supreme Court wherein it was held that there may of course be circumstances when a person having best of intentions to marry is unable to marry the victim owing to various unavoidable circumstances. The failure to keep a promise due to any uncertain reason does not always amount to misconception of facts and a case of rape is not made out.
Respondent’s Contention:
Learned Counsel for the respondent submitted that the bank statements of the complainant and petitioner have been collected wherein it was found that the complainant transferred money into the bank account of the petitioner and that he was using the ATM card of the complainant and the recovery of the same is required. She further stated that the petitioner got engaged to another girl. She further stated that the complainant had forceful intercourse which resulted in bleeding and medical help was sought. She stated that the petitioner used casteist remarks against the prosecutrix.
She stated that if released on bail, the petitioner will threaten the prosecutrix. She stated that this is a case where the petitioner was exploited the prosecutrix physically, mentally and emotionally. The petitioner had won the trust of the prosecutrix on the promise to marry her. She stated that the petitioner has been constantly taking money from the prosecutrix and for that the prosecutrix had to take a loan and now she is clearing the loan after the petitioner deserted her. The petitioner does not deserve any indulgence and cannot be granted bail looking into the seriousness of the offence.
HC’s Observations:
After hearing both the sides Court stated that the parameters to be considered for grant of bail have been consistently enunciated by the Apex Court. The parameters laid down by the Apex Court are a) nature and gravity of the charge; b) severity of the punishment in case of conviction; c) reasonable apprehension of witness being influenced; d) prima facie or reasonable ground to believe that the accused had committed the offence; e) character, behaviour, means, position and standing of the accused; f) danger of justice being thwarted by grant of bail.
HC observed that the petitioner and the prosecutrix are working in CISF as constables. It is, therefore, cannot be said that the petitioner is in such a position that he can threaten the prosecutrix. Court found that the relationship which has been established between the petitioner and the prosecutrix is, therefore, consensual and a question as to whether the consent was given under misconception or not, would be seen in the trial. Court stated that it is well settled that there is a distinction between a false promise given on the understanding by the maker that it will be broken and a breach of promise which is made in good faith but subsequently not fulfilled. Court stated that it has to be ascertained on facts that the promise to marry must have been a false promise given in bad faith with no intention of being adhered to at the time of making promise.
HC Held:
After evaluating submissions made by both the parties the Court held that “both the petitioner and the prosecutrix are constables in CISF. The social status of the petitioner vis-a-vis, the prosecutrix are similar and it cannot be said that the social status of the petitioner is such which would give a reasonable apprehension in the mind of the Court that the petitioner would be in a position to influence the prosecutrix or any other witnesses. Similarly, for the offence under SC/ST Act, it has to be established that the ingredients of the offence under Section 3 (1) (r), 3 (1) (w) (i), 3 (1) (w) (ii) and 3 (2) (v) of Schedule Caste and Schedule Tribe (Prevention of Atrocities) Act, 1989 are made out in the facts and circumstances of this case.”
HC granted bail to the petitioner.
Bench: Hon'ble Mr. Justice Subramonium Prasad
Case Title: Parveen Kumar v. The State
Case Details: BAIL APPLN. 3543/2021
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