Adesh Tyagi @ Bittoo Tyagi vs State Of U.P.
2023 Latest Caselaw 21064 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:159608
 
Court No. - 73
 

 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 8214 of 2023
 

 
Applicant :- Adesh Tyagi @ Bittoo Tyagi
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Sachin Malik,Amar Jeet Upadhyay
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Nalin Kumar Srivastava,J.

1. Heard learned counsel for the applicant, learned counsel for the informant as well as the learned A.G.A. for the State and perused the material available on record.

2. Apprehending his arrest in Case Crime No.191 of 2020, under Sections 376, 506 IPC, Police Station Civil Lines, District Meerut, the applicant - Adesh Tyagi @ Bittoo Tyagi has filed this anticipatory bail application seeking anticipatory bail in the aforesaid crime number.

3. It is alleged in the F.I.R. that on the false pretext of marriage, the accused applicant made physical relations with the prosecutrix and also prepared obscene photographs and videos of the prosecutrix and subsequently refused to marry her and threatened her to make viral the said videos and photographs. F.I.R. was lodged on 15.6.2023 and investigation started, which is still going on.

4. It is submitted by the learned counsel for the applicant that the applicant is innocent and he has apprehension of his arrest in the above-mentioned case, whereas there is no credible evidence against her. He has been falsely implicated into this matter. Allegations levelled against the applicant are false. The investigation of the case is going on. It is further submitted that the applicant never made any promise to marry with the prosecutrix. It is further submitted that it is a case of consensual relationship and the prosecutrix is a major married lady having her husband and on her own free will and consent physical relations were made with her by the applicant and he never made physical relations with the prosecutrix forcibly or against her will. It is also submitted that the prosecutrix had taken money from the applicant many times through cheques which were not returned to him and in this regard the applicant has also moved a written complaint before the concerned Magistrate Court at Meerut. It is further submitted that the applicant is cooperating in the investigation. He has no criminal history to his credit. No coercive process has been issued against the applicant.

5. Learned A.G.A. and learned counsel for the informant opposed the prayer for anticipatory bail and it has been submitted that ample evidence has been collected against the applicant during course of investigation. It is further submitted that in her statement recorded u/s 164 Cr.P.C., the prosecutrix has stated that physical relations were made by the applicant with the prosecutrix on the pretext of marriage. It has also been stated by her in the said statement that the applicant had told her that he is widower having no child and will marry with her.

6. I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record carefully.

7. Now a days the Courts are over-flooded with the matters wherein it is alleged that the male accused, on the false promise of marriage, only to fulfill his lust, made physical relations with the victim and subsequently did not keep his promise and left her abandoned. In such matters, what the Court should actually look into is the intention of the accused from very inception of the relation.

8. Hon'ble Apex Court in Pramod Suryabhan Pawar Vs. The State of Maharashtra & Anr., 2019 (9) SCC 608 has categorically held that there is a distinction between a false promise given on understanding by maker that it will be broken and breach of a promise which is made in good faith but subsequently not fulfilled. In paragraph 14 of the aforesaid judgment, the Hon'ble Apex Court held that :

"14. ... In the present case, the "misconception of fact" alleged by the complainant is the appellant's promise to marry her. Specifically in the context of a promise to marry, this Court has observed that there is a distinction between a false promise given on the understanding by the maker that it will be broken, and the breach of a promise which is made in good faith but subsequently not fulfilled. In Anurag Soni v State of Chhattisgarh, (2019) SCC OnLine SC 509, this Court held:

"37. The sum and substance of the aforesaid decisions would be that if it is established and proved that from the inception the accused who gave the promise to the prosecutrix to marry, did not have any intention to marry and the prosecutrix gave the consent for sexual intercourse on such an assurance by the accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact as per Section 90 of the IPC and, in such a case, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined under Section 375 of the IPC and can be convicted for the offence under Section 376 of the IPC."

Similar observations were made by this Court in Deepak Gulati v State of Haryana, (2013) 7 SCC 675 ("Deepak Gulati"):

"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."

Further, in paragraph 16 of the aforesaid judgment explaining the terms - misconception of fact, consent and breach of promise, the Hon'ble Supreme Court observed that :

"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." (Emphasis supplied)

9. In the present case, it reflects from the factual matrix of the matter that the physical relations between the prosecutrix and the accused developed on the basis of a promise to marry on the part of the accused applicant though husband of the prosecutrix was alive, but significantly, in the present case, this is not the accused applicant, who refused to marry with the prosecutrix, though alleged so in the F.I.R. It is also clear that the prosecutrix had already performed her marriage with one Dhirendra whereas the present applicant is a widower and hence it cannot be said at this stage that the promise to marry was broken by the applicant himself.

10. In Sonu @ Subhash Kumar Vs. State of U.P. & Anr., 2021 0 Supreme (SC) 182, in almost similar circumstances where the parties, who were adult and had been in consensual relationship for about a period of one and a half years, it was found that there was no allegation to the effect that promise to marry given to the victim was false at inception, benefit was given to the main accused.

11. In Criminal Appeal No.257 of 2023, Naim Ahamed Vs. State (NCT of Delhi), 2023 LiveLaw (SC) 66 filed against conviction under Section 376 IPC, the Hon'ble Apex Court, reiterating the same principle, categorically observed that :

"20. ... The bone of contention raised on behalf of the respondents is that the prosecutrix had given her consent for sexual relationship under the misconception of fact, as the accused had given a false promise to marry her and subsequently he did not marry, and therefore such consent was no consent in the eye of law and the case fell under the Clause ? Secondly of Section 375 IPC. In this regard, it is pertinent to note that there is a difference between giving a false promise and committing breach of promise by the accused. In case of false promise, the accused right from the beginning would not have any intention to marry the prosecutrix and would have cheated or deceited the prosecutrix by giving a false promise to marry her only with a view to satisfy his lust, whereas in case of breach of promise, one cannot deny a possibility that the accused might have given a promise with all seriousness to marry her, and subsequently might have encountered certain circumstances unforeseen by him or the circumstances beyond his control, which prevented him to fulfill his promise. So, it would be a folly to treat each breach of promise to marry as a false promise and to prosecute a person for the offence under Section 376. As stated earlier, each case would depend upon its proved facts before the court."

12. In Sushila Aggarwal and others vs. State (NCT of Delhi) and another, (2020) 5 SCC 1, the Hon'ble Apex Court has held that while considering an application for grant of anticipatory bail, the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence including intimidating witnesses, likelihood of fleeing justice, such as leaving the country, etc. It has further been held that Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail, or refuse it. Whether to grant or not is a matter of discretion.

13. Reiterating the principle above-mentioned, the Hon'ble Apex Court in Aman Preet Singh Vs. C.B.I. Through Director, 2021 SCC OnLine SC 941, while referring to a judgment of Delhi High Court in Court on its own Motion Vs. Central Bureau of Investigation, (2004) 72 DRJ 629, held so in paragraph 11 of the aforesaid judgment.

"11. ... Insofar as the present case is concerned and the general principles under Section 170 Cr.P.C., the most apposite observations are in sub-para (v) of the High Court judgment in the context of an accused in a non-bailable offence whose custody was not required during the period of investigation. In such a scenario, it is appropriate that the accused is released on bail as the circumstances of his having not been arrested during investigation or not being produced in custody is itself sufficient to entitle him to be released on bail. The rationale has been succinctly set out that if a person has been enlarged and free for many years and has not even been arrested during investigation, to suddenly direct his arrest and to be incarcerated merely because charge sheet has been filed would be contrary to the governing principles for grant of bail. We could not agree more with this."

14. Undoubtedly, it is a case of consensual relationship between two major persons. The applicant is cooperating to the Investigating Officer. Hence, in the light of the aforesaid legal pronouncements and considering the facts and circumstances of the case, submissions of the learned counsel for the parties, nature of accusation, role of applicant, without expressing any opinion of the merits of the case, in my view, it is a fit case for anticipatory bail to the applicant till submission of police report under Section 173(2) CrPC before the competent Court.

15. The anticipatory bail application is allowed accordingly.

16. In the event of arrest of the applicant, he shall be released on anticipatory bail on his furnishing a personal bond of Rs.50,000/- with two sureties each in the like amount to the satisfaction of Station House Officer of the police station concerned with the following conditions:-

(i) The applicant shall make himself available for interrogation by a police officer as and when required.

(ii) 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/her from disclosing such facts to the Court or to any police office.

(iii) The applicant shall not leave India without the previous permission of the Court and if he has passport, the same shall be deposited by him before the S.S.P./S.P. Concerned.

17. In case of default of any of the conditions, the Investigating Officer shall be at liberty to file appropriate application for cancellation of protection granted to the applicant.

Order Date :- 8.8.2023

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