Allahabad High Court
Sudheer Kumar vs State Of U.P. ... on 7 May, 2022
Bench: Krishan Pahal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. - 28
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 129 of 2022
Applicant :- Sudheer Kumar
Opposite Party :- State Of U.P. Thru.Prin.Secy.Home Lko. And Another
Counsel for Applicant :- Kunwar Sushant Prakash
Counsel for Opposite Party :- G.A.
Hon'ble Krishan Pahal,J.
Heard Sri Arun Ojha, learned counsel for the applicant and Sri Brijesh Kumar Dwivedi, learned Additional Government Advocate for the State and perused the records.
The applicant is seeking anticipatory bail in connection with Case Crime No.-432 of 2021, under Sections 406, 506, 376, 313 IPC, Police Station - Banthara, District - Lucknow.
As per prosecution story, the applicant is stated to have sexually molested the first informant on the pretext of marriage for a period of about 8 months. During the said period, the applicant is also stated to have administered some chemical in a cold drink to the first informant causing her abortion.
It is the contention of the learned counsel for the applicant that the first informant is a nurse in Medanta Hospital, Lucknow and she is very well versed and acquainted with the vagaries of medical science.
Learned counsel for the applicant has further stated that the first informant is a consenting party and is major, aged about 21 years. He has further placed reliance on various whatsapp chats and has also placed on record the receipt of money transfer between the parties which indicates that the first informant was a consenting party. He further stated that there is no evidence to support the allegation of sexual molestation or aborting foetus of the victim.
Learned counsel for the applicant has placed much reliance on the case law settled by the Apex Court in the case of Sonu alias Subhash Kumar vs. State of Uttar Pradesh and another reported in 2021 SCC OnLine SC 181 wherein it has been opined by the Supreme Court that the consent garnered on the pretext of false promise of marriage cannot lead to an adverse inference and the delinquent cannot be prosecuted for an offence under Section 376 IPC. Paragraph 8, 9, 10 and 11 of the said judgment are quoted below :
"8. The contents of the FIR as well as the statement under Section 164 of CrPC leave no manner of doubt that, on the basis of the allegations as they stand, three important features emerge:
(i) The relationship between the appellant and the second respondent was of a consensual nature;
(ii) The parties were in the relationship for about a period of one and a half years; and
(iii) Subsequently, the appellant had expressed a disinclination to marry the second respondent which led to the registration of the FIR.
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."
Learned counsel has further stated that there is no criminal history of the applicant and, therefore, he is entitled for protection from this Court.
Per contra, Sri Brijesh Kumar Dwivedi, learned Additional Government Advocate has opposed the prayer for anticipatory bail but could not dispute the fact that there is no criminal antecedent of the applicant and the victim herself is a nurse.
Considering the overall facts and circumstances of the case, this Court is of the opinion that the applicant deserves to be granted anticipatory bail in connection with the aforesaid case.
Accordingly, the anticipatory bail application is disposed of with following directions:-
(A) In the event of arrest of the applicant involved in aforesaid case shall be released on anticipatory bail till the submission of police report, if any, under section 173(2) Cr.P.C. before the competent Court on his furnishing a personal bond of Rs.50,000/- with two sureties each of the like amount to the satisfaction of the Station House Officer of the police station concerned;
(B) The applicant shall co-operate with the Investigating Officer during investigation and shall report to the Investigating Officer as and when required for the purpose of conducting investigation;
(C) 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 them from disclosing such facts to the Court or to any police officer; and
(D) The applicant shall not leave India without the previous permission of the Court.
In default or misuse of any of the conditions, the Public Prosecutor/ Investigating Officer/ first informant-complainant is at liberty to file appropriate application for cancellation of anticipatory bail granted to the applicant.
Order Date :- 7.5.2022
SA
