Allahabad High Court
Prabhat Kumar Gupta vs State Of U.P. Thru Prin.Secy. Home ... on 10 August, 2021
Bench: Chandra Dhari Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 14
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 8442 of 2021
Applicant :- Prabhat Kumar Gupta
Opposite Party :- State Of U.P. Thru Prin.Secy. Home And Another
Counsel for Applicant :- Sumit Srivastava,Dilip Mani,Purusottam Awasthi
Counsel for Opposite Party :- G.A.
Hon'ble Chandra Dhari Singh,J.
The present application under Section 438 Cr.P.C. has been filed seeking anticipatory bail apprehending arrest in FIR No.213 of 2021, under Sections 376 and 506 IPC, P.S. Ajgain, District Unnao.
Prosecution story, in brief, is that the prosecutrix was married to one Deepak Verma @ Rakesh Kumar and a child was born out of the wedlock, who is of eight years. After some time, their relationship got strained and they started living separately. Thereafter, the prosecutrix got to know Prabhat Kumar Gupta (the applicant) who started pressurizing her to get married with him. The applicant also made her meet his family members and they all agreed to get them married. Thereafter, the applicant promised the prosecutix to get married and made physical relation with her due to which she became pregnant and now the applicant is refusing to marry her and asking her to abort the child.
Learned counsel for the applicant has submitted that the applicant is innocent and has not committed any offence as alleged in the FIR. He has been falsely implicated. The relationship between the applicant and the prosecutrix was consensual. No case of rape on the pretext of false promise to marry is made out as the prosecutrix was already married and had an eight years old child out of the wedlock.
It is submitted that the prosecutrix is living with her husband and has falsely implicated the applicant to extort money. The applicant does not have any previous criminal history. He is a respectable person and if he is arrested, his reputation in the society will be maligned.
To support his contentions, learned counsel has relied upon a judgment rendered by a co-ordinate Bench of this Court vide order dated 25.02.2019 passed in Bail No.4013 of 2018.
Learned Additional Government Advocate has vehemently opposed the anticipatory bail application and submitted that the applicant has committed a serious offence. On the false pretext of marriage, he kept making physical relations with the prosecutrix due to which she is pregnant now
Learned Additional Government Advocate has submitted that it is well settled that where the promise to marry is false and the intention of the accused at the time of making the promise was not to abide by it but to deceive the victim to obtain her consent for sexual intercourse, the consent of the woman would be vitiated and the case would fall under the ambit of description "secondly" of Section 375 IPC.
I have heard learned counsel for the parties and perused the record.
There is no doubt that the anticipatory bail may be granted when there is material on record to show that prosecution was inherently doubtful or where there is a possibility of false implication. However, when the element of criminality is involved; the custodial interrogation is required and/or the other aspects and facts are required to be unfolded in investigation, the applicant is not entitled for anticipatory bail.
It is also well settled law that while considering the question of grant of anticipatory bail, the Court prima facie has to look into the nature and gravity of the alleged offence and the role of the accused.
In the instant case, there is a specific allegation against the present applicant that on false pretext of marriage, he made physical relations with the prosecutrix and later refused to marry her. Out of the said relationship, the prosecutrix became pregnant and was also told to abort the child.
It is seen on various occasions that the accused made a false promise of marriage with the malafide intention to deceive the victim and develop physical relationship with her. It is settled law that any sexual act on the pretext of a false promise of marriage would be considered as an absence of consent and therefore, constitute as rape.
In view of the above, there is no exceptional ground to exercise the discretionary jurisdiction of this Court for granting anticipatory bail. The anticipatory bail application is accordingly rejected.
It is made clear that observations made herein are exclusively for deciding the instant anticipatory bail application and the same shall not affect the investigation or trial in any manner.
Order Date :- 10.8.2021
nishant/-
