Sri Dhiraj Rathi vs State Of U.P.
2022 Latest Caselaw 9173 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 75
 

 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 5534 of 2022
 

 
Applicant :- Sri Dhiraj Rathi
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Anand Pati Tiwari
 
Counsel for Opposite Party :- G.A.,Mayank Yadav,Vivek Kumar Singh
 

 
Hon'ble Raj Beer Singh,J.

1. Heard learned counsel for the applicant, learned counsel for complainant, learned A.G.A. for the State and perused the record.

2. The present application has been moved seeking anticipatory bail in Case Crime No.1781/2021, under Sections 376/377/313 I.P.C., Police Station Kotwali Dehat, District Bulandshahr with the prayer that in the event of arrest, applicant may be released on bail.

3. It has been argued by the learned counsel for the applicant that applicant is innocent and he has an apprehension that he may be arrested in the above-mentioned case, whereas there is no credible evidence against him. According to prosecution version, applicant is working in U.P. Police and complainant is working as teacher and it is alleged that on pretext of marriage, applicant has established physical relations with complainant and she has also become pregnant but her pregnancy was got terminated by way of cheating and later on applicant refused to marry her. Learned counsel for the applicant submitted that complainant is a mature lady and she is working as teacher and it is apparent that she was in consensual relationship with applicant and thus, in view of these facts no prima facie case under Section 376 IPC is made out against applicant. Earlier the applicant has filed a writ petition for quashing of first information report, wherein, during pendency of that writ petition the matter was referred for mediation and arrest of the applicant was stayed but later on the mediation has failed. It is further submitted that in view of facts of the matter, no custodial interrogation of applicant is required and similarly no recovery is to be effected from him. Regarding issuance of process under Section 82 CrPC against applicant, learned counsel submitted that the said process under Section 82 CrPC has been issued after filing of the instant application for anticipatory bail and thus, the issuance of process under Section 82 CrPC cannot be a bar for grant of anticipatory bail to the applicant. The applicant has no criminal antecedents and that applicant undertakes to co-operate during investigation and trial and he would appear as and when required by the investigating agency or Court. In support of his submissions, learned counsel for the applicant has relied upon the following case laws'

(i) Sonu @ Subhash Kumar vs. State of Uttar Pradesh & Anr (Criminal Appeal No.233 of 2021) decided on 01.03.02021.

(ii) Maheshwar Tigga vs. State of Jharkhand (Criminal Appeal No.635 of 2020) decided on 28.09.2020.

(iii) Siddharth Kappor (Criminal Misc. Anticipatory Bail Application U/s 438 Cr.P.C. No.4040 of 2022) decided on 20.07.2022.

(iv) Manish Yadav vs. State of U.P. (Criminal Misc. Anticipatory Bail Application U/s 438 CrPC No.4645 of 2022) decided on 14.07.2022.

4. Learned A.G.A. and learned counsel for complainant have opposed the application for anticipatory bail and argued that in this case applicant has physically exploited the victim on pretext of marriage and that even her pregnancy was got terminated by way of cheating and that later on the applicant has refused to marry with complainant. Referring to version of first information report and statement of victim recorded under Section 164 CrPC, it was submitted that a prima facie case for offence under Section 376 IPC is made out. Further, the process under Section 82 CrPC has already been issued against applicant. It was also submitted that applicant is working in U.P. Police and that due to that reason, police have not made any effort to arrest the applicant and that applicant is misusing his position as a police Officer. Learned counsel for the complainant has relied upon following case laws;

(i) Prem Shankar Prasad vs. The State of Bihar (Criminal Appeal No.1209 of 2021) decided on 21.10.2021

(ii) Harshvardhan Yadav vs. State of U.P. and Another (Criminal Appeal No.1382 of 2021) decided on 03.08.2021

(iii) Lavesh vs. State (NCT of Delhi) (2012) 8 SCC 730

(iv) State of Uttar Pradesh vs. Naushad (Criminal Appeal No.1949 of 2013) decided on 19.11.2013

5. So far the maintainability of the instant application for anticipatory bail is concerned, it was shown that process under Section 82 CrPC has been issued against applicant vide order dated 14.07.2022 and the instant application for anticipatory bail was filed in the month of June, 2022 and thus, it is apparent that when applicant has filed this application for anticipatory bail, till then there was no such process and thus, in view of the law laid down in case of Manish Yadav (supra) and Siddharth Kappor (supra), the instant application for anticipatory bail is maintainable. In case of Lavesh (supra), relied by learned counsel for the complainant, it was observed by the Hon'ble Apex Court that where accused was not available for interrogation and he was declared as a proclaimed offender, there is no question of granting anticipatory bail and similar view has been taken by Hon'ble Supreme Court in case of Prem Shankar Prasad (supra), but in the instant case, it is apparent that after filing of the instant application for anticipatory bail, the process under Section 82 CrPC has been issued and the case relied by the learned counsel for the applicant do not cover this contingency. Thus, the application for anticipatory bail is held to be maintainable.

6. Be that as it may, on the merits of the matter, it may be mentioned that there are allegations against applicant that while working in police, he has physically, mentally and economically exploited the complainant by promising that he would marry her and when she became pregnant she was forced for termination of pregnancy and it was alleged that since beginning the applicant was having intention to deceive and to physically exploit the complainant on pretext of marriage.

7. In case of Maheshwar Tigga (supra), in para 13, 14 and 16, Hon'ble Supreme Court has held as under;

"13. The question for our consideration is whether the prosecutrix consented to the physical relationship under any misconception of fact with regard to the promise of marriage by the appellant or was her consent based on a fraudulent misrepresentation of marriage which the appellant never intended to keep since the very inception of the relationship. If we reach the conclusion that he intentionally made a fraudulent misrepresentation from the very inception and the prosecutrix gave her consent on a misconception of fact, the offence of rape under Section 375 IPC is clearly made out. It is not possible to hold in the nature of evidence on record that the appellant obtained her consent at the inception by putting her under any fear. Under Section 90 IPC a consent given under fear of injury is not a consent in the eyes of law. In the facts of the present case we are not persuaded to accept the solitary statement of the prosecutrix that at the time of the first alleged offence her consent was obtained under fear of injury.

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.

16. The appellant, before the High Court, relied upon Kaini Rajan (supra) in his defence. The facts were akin to the present case. The physical relationship between the parties was established on the foundation of a promise to marry. This Court set aside the conviction under Section 376 IPC also noticing K.P. Thimmappa Gowda vs. State of Karnataka, (2011)14 SCC 475. Unfortunately, the High Court did not even consider it necessary to deal with the same much less distinguish it, if it was possible. It is indeed unfortunate that despite a judicial precedent of a superior court having been cited, the High Court after mere recitation of the facts and the respective arguments, cryptically in one paragraph opined that in the nature of the evidence, the letters, the photograph of the appellant with the prosecutrix and the statement of the appellant under Section 313 Cr.P.C., his conviction and sentence required no interference."

8. In case of Sonu @ Subhash Kumar (supra), in para nos. 9, 10 and 11, the Hon'ble Apex Court has held as under;

"9 In Pramod Suryabhan Pawar (supra), while dealing with a similar situation, the principles of law which must govern a situation like the present were enunciated in the following observations:

?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...?

10, Further, the Court has observed:

?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.?

11, Bearing in mind the tests which have been enunciated in the above decision, we are of the view that even assuming that all the allegations in the FIR are correct for the purposes of considering the application for quashing under Section 482 of CrPC, no offence has been established. There is no allegation to the effect that the promise to marry given to the second respondent was false at the inception. On the contrary, it would appear from the contents of the FIR that there was a subsequent refusal on the part of the appellant to marry the second respondent which gave rise to the registration of the FIR. On these facts, we are of the view that the High Court was in error in declining to entertain the petition under Section 482 of CrPC on the basis that it was only the evidence at trial which would lead to a determination as to whether an offence was established"

9. In case of State of Uttar Pradesh vs. Naushad (supra), relied by learned counsel for the complainant, in para nos. 19 and 21, the Hon'ble Apex Court has held as under;

"19. In the present case, the accused had sexual intercourse with the prosecutrix by giving false assurance to the prosecutrix that he would marry her. After she got pregnant, he refused to do so. From this, it is evident that he never intended to marry her and procured her consent only for the reason of having sexual relations with her, which act of the accused falls squarely under the definition of rape as he had sexual intercourse with her consent which was consent obtained under a misconception of fact as defined under Section 90 IPC. Thus, the alleged consent said to have been obtained by the accused was not voluntary consent and this Court is of the view that the accused indulged in sexual intercourse with the prosecutrix by misconstruing to her his true intentions. It is apparent from the evidence that the accused only wanted to indulge in sexual intercourse with her and was under no intention of actually marrying the prosecutrix. He made a false promise to her and he never aimed to marry her.

21. The High Court has gravely erred in fact and in law by reversing the conviction of the accused for the offence of rape and convicting him under Section 376 of the IPC. It is apparent from the evidence on record that the accused had obtained the consent of the prosecutrix for sexual intercourse under a misconception of fact i.e. that he would marry her and thus made her pregnant. He is thus guilty of rape as defined under Section 375 of the IPC and is liable to be punished for the offence under Section 376 of the IPC. The trial court was absolutely correct in appreciating the evidence on record and convicting and sentencing the accused for the offence of rape by holding that the accused had obtained the consent of the prosecutrix under a misconception of fact and this act of his amounts to an offence as the alleged consent is on the basis of misconception, and the accused raped the prosecutrix. He brazenly raped her for two years or more giving her the false assurance that he would marry her, and as a consequence she became pregnant. For the reasons stated supra, we have to uphold the judgment and order of the trial court in convicting and sentencing the accused for the offence of rape, by reversing the judgment and order of the High Court. We find the accused-respondent guilty of the offence of rape as defined under Section 375 of the IPC."

10. Considering the above stated pronouncements and position of law, in the instant case it may be seen that the allegations of complainant are that she was physically exploited by the applicant by promising that he would marry her and that when she became pregnant she was forced to terminate the pregnancy. It was also alleged by the complainant that the applicant has intention to cheat the complainant since beginning. No doubt from the above stated facts, it appears that prosecutrix is a mature and educated lady and she was in consensual relationship but she has alleged that applicant promised to marry with her and later on refused to marry her. This fact cannot be ignored that applicant is working in Police as Sub-Inspector and he took undue advantage of his position. Further, he is absconding since long and there is nothing to indicate that he has ever co-operated during investigation.

11. Considering the submissions of learned counsel for the parties, nature of accusations, and all attending facts of the matter, the applicant is not entitled for anticipatory bail. Hence the present application for anticipatory bail is hereby rejected.

Order Date :- 4.8.2022

Neeraj