Allahabad High Court
Lavkush Gautam vs State Of U.P Thru. Prin. Secy. Home on 6 April, 2022
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 12
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 740 of 2022
Applicant :- Lavkush Gautam
Opposite Party :- State Of U.P Thru. Prin. Secy. Home
Counsel for Applicant :- Rajeev Singh
Counsel for Opposite Party :- G.A.
Hon'ble Dinesh Kumar Singh,J.
1. Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.
2. The present bail application under Section 439 Cr.P.C. has been filed by the applicant seeking bail in FIR No.346 of 2021, under Sections 376, 504, 506 IPC, Police Station Bakshi Ka Talab, District Lucknow.
3. It is alleged that the accused-applicant showed love towards the prosecutrix and on the pretext of marrying the prosecutrix, he continuously raped her. However, later on 27.06.2021, when mother of the prosecutrix went to the house of the accused-applicant to have talk regarding their marriage, the accused-applicant refused to marry the prosecutrix. The prosecutrix is 21-23 years of age.
4. Learned counsel for the accused-applicant has placed reliance on the judgments of the Supreme Court in the cases of Deepak Gulati vs State of Haryana: (2013) 7 SCC 675 and Sonu @ Subhash Kumar vs State of Uttar Pradesh & Anr. : Criminal Appeal No.233 of 2021. In Deepak Gulati's case (supra) following has been held:-
"20. Rape is the most morally and physically reprehensible crime in a society, as it is an assault on the body, mind and privacy of the victim. While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female. Rape reduces a woman to an animal, as it shakes the very core of her life. By no means can a rape victim be called an accomplice. Rape leaves a permanent scar on the life of the victim, and therefore a rape victim is placed on a higher pedestal than an injured witness. Rape is a crime against the entire society and violates the human rights of the victim. Being the most hated crime, rape tantamounts to a serious blow to the supreme honour of a woman, and offends both, her esteem and dignity. It causes psychological and physical harm to the victim, leaving upon her indelible marks.
21. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. 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. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives.
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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."
5. Considering the facts and circumstances of the case, especially age of the prosecutrix and the fact that the accused-applicant has been in jail since 13.11.2021, judgements of the Supreme Court in the aforesaid cases, perusing the record and also considering the nature of allegations, arguments advanced by the learned counsel for the parties and, without expressing any opinion on the merit of the case, I find it to be a fit case for granting bail.
6. Let applicant Lavkush Gautam be released on bail in the aforesaid case on his furnishing a personal bond and two sureties of the like amount to the satisfaction of the Magistrate/Court concerned, subject to following conditions :-
(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.
(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.
Order Date :- 6.4.2022
prateek
