Vinay Kumar Chaurasiya vs State Of U.P. And Anr.
2021 Latest Caselaw 10316 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 13
 

 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 7653 of 2021
 

 
Applicant :- Vinay Kumar Chaurasiya
 
Opposite Party :- State Of U.P. And Anr.
 
Counsel for Applicant :- Ajmal Khan,Prem Prakash Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Irshad Ali,J.

1. Heard Ajmal Khan, learned counsel for the applicant and Sri Anurag Verma, learned AGA for respondent - State.

2. This is an application for grant of anticipatory bail under Section 438 CrPC in case crime No.243 of 2021 under Sections 376, 313, 504, 506 IPC registered at police station Sarojni Nagar, District Lucknow.

3. Allegations levelled by the complainant in the FIR is that since long the applicant was in with physical relationship with the prosecutrix and assured her to marry and now, she came to know that the applicant is going to marry with some other girl and in conversation, he refused to marry and said that his parents have settled the marriage elsewhere and he is not able to do the same.

4. Submission of learned counsel for the petitioner is that the sections under which the FIR has been lodged do not constitute crime against the applicant. He further submitted that the relationship between the applicant and prosecutrix was consentive and the applicant has never consented to marry with the prosecutrix, therefore, he submitted that no case has been made out under Section 376 IPC.

5. In regard to allegation of abortion, under which Section 313 IPC has been referred, it has been submitted that as per allegation, it was two years prior to lodging of FIR and without any substance, this allegation has been levelled, therefore, prima facie, no case is made out against the applicant. In support of his submissions, he placed reliance upon following judgments:

a) Deepak Gulati Vs. State of Haryana; Criminal Appeal No.2322 of 2020 dated 20.05.2013

b) Sonu @ Subhash Kumar Vs. State of Uttar Pradesh and another; Criminal Appeal No.233 of 2021 dated 01.03.2021

6. On the other hand, learned AGA invited attention of this Court on latest judgment of Hon'ble Apex Court in following cases, which also say that in case the relationship is consentive, no case is made out under Section 376 IPC:

a) State of Madhya Pradesh Vs. Pradeep Sharma; (2014) 2 SCC 171.

b) Lavesh Vs. State (NCT of Delhi); (2012) 8 SCC 730.

c) Pramod Suryabhan Pawar Vs. State of Maharashtra and another; (2019) 9 SCC 608.

d) Maheshwar Tigga Vs. State of Jharkhand; (2020) 10 SCC 108.

7. I have considered the submissions advanced by learned counsel for the parties and perused the material on record as well as the law reports relied upon by learned counsel for the parties.

8. To resolve the controversy involved in the present bail application, relevant portions of the judgments relied upon by learned counsel for the parties are being quoted below:

i) Judgments relied upon by learned counsel for the applicant:

a) Deepak Gulati Vs. State of Haryan (Supra):

"21. Hence, it is evident that there must be adequate evidence to show that at the relevant time, i.e. at initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The "failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term misconception of fact, the fact must have an immediate relevance." Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her."

b) Sonu @ Subhash Kumar Vs. State of Uttar Pradesh and another; Criminal Appeal No.233 of 2021 dated 01.03.2021

ii) Judgments relied upon by learned AGA for respondent - State :

a) State of Madhya Pradesh Vs. Pradeep Sharma (Supra):

"12) Recently, in Lavesh Vs. State (NCT of Delhi), (2012) 8 SCC 730, this Court, (of which both of us were parties) considered the scope of granting relief under Section 438 vis--vis to a person who was declared as an absconder or proclaimed offender in terms of Section 82 of the Code. In para 12, this Court held as under:

"12. From these materials and information, it is clear that the present appellant was not available for interrogation and investigation and was declared as "absconder". Normally, when the accused is "absconding" and declared as a "proclaimed offender", there is no question of granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code he is not entitled to the relief of anticipatory bail." It is clear from the above decision that if anyone is declared as an absconder/proclaimed offender in terms of Section 82 of the Code, he is not entitled to the relief of anticipatory bail."

b) Lavesh Vs. State (NCT of Delhi) (Supra):

"10) From these materials and information, it is clear that the present appellant was not available for interrogation and investigation and declared as "absconder". Normally, when the accused is "absconding" and declared as a "proclaimed offender", there is no question of granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code is not entitled the relief of anticipatory bail."

c) Pramod Suryabhan Pawar Vs. State of Maharashtra and another (Supra) :

"16. Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a "misconception of fact" that vitiates the woman's "consent". On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it. The "consent" of a woman under Section 375 is vitiated on the ground of a "misconception of fact" where such misconception was the basis for her choosing to engage in the said act. In Deepak Gulati this Court observed:

"21. ? There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently.

24. Hence, it is evident that there must be adequate evidence to show that at the relevant time i.e. at the initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The "failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term "misconception of fact", the fact must have an immediate relevance". Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her."

18. To summarise the legal position that emerges from the above cases, the "consent" of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the "consent" was vitiated by a "misconception of fact" arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act."

d) Maheshwar Tigga Vs. State of Jharkhand (Supra):

"14. Under Section 90 IPC, a consent given under a misconception of fact is no consent in the eyes of law. But the misconception of fact has to be in proximity of time to the occurrence and cannot be spread over a period of four years. It hardly needs any elaboration that the consent by the appellant was a conscious and informed choice made by her after due deliberation, it being spread over a long period of time coupled with a conscious positive action not to protest. The prosecutrix in her letters to the appellant also mentions that there would often be quarrels at her home with her family members with regard to the relationship, and beatings given to her.

17. This court recently in Dhruvaram Murlidhar Sonar Vs. The State of Maharashtra and others, AIR 2019 SC 327 and in Pramod Suryabhan Pawar Vs. State of Maharashtra and another, (2019) 9 SCC 608 arising out of an application under Section 482 Cr.P.C. in similar circumstances where the relationship originated in a love affair, developed over a period of time accompanied by physical relations, consensual in nature, but the marriage could not fructify because the parties belonged to different castes and communities, quashed the proceedings.

20. We have no hesitation in concluding that the consent of the prosecutrix was but a conscious and deliberated choice, as distinct from an involuntary action or denial and which opportunity was available to her, because of her deepseated love for the appellant leading her to willingly permit him liberties with her body, which according to normal human behaviour are permitted only to a person with whom one is deeply in love. The observations in this regard in Uday (supra) are considered relevant:

"25?It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances the promise loses all significance, particularly when they are overcome with emotions and passion and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well, and the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. In these circumstances it would be very difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In any event, it was not possible for the appellant to know what was in the mind of the prosecutrix when she consented, because there were more reasons than one for her to consent."

9. On perusal of aforesaid law reports, it is evident that there must be adequate evidence to show that at the relevant time, the accused had no intention whatsoever, of keeping his promise to marry the victim. It is also apparent that breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it. It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married. Therefore, the ratio of the judgments relied upon by learned counsel for the applicant is fully applicable to the case of the applicant.

10. Taking into consideration the fact that the relationship between the applicant and prosecutrix was consentive and in view of the fact that he does not have any previous criminal history and he is not likely to abscond or evade the process of the Court or in any way hamper investigation as also that there is sufficient reason to believe that the applicant may be arrested, I find it a fit case for grant of anticipatory bail. Thus, the instant anticipatory bail application is allowed.

11. It is directed that in the event of his arrest, the applicant namely Vinay Kumar Chaurasiya shall be released on anticipatory bail in relation to aforesaid first information report on his furnishing a person bond and two reliable sureties in the like amount to the satisfaction of the Station House Officer concerned, subject to the following conditions:-

a. That the applicant shall make himself available for interrogation by a police officer as and when required;

b. That the applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with the evidence;

c. That the applicant shall not leave India without the previous permission of the court;

d. That in default of any of the conditions mentioned above, the investigating officer shall be at liberty to file appropriate application for cancellation of anticipatory bail granted to the applicant.

Order Date :- 16.8.2021

Adarsh K Singh