Chandan Kumar vs State Of U.P. And Another
2023 Latest Caselaw 21910 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:165165
 
Court No. - 73
 

 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 8787 of 2023
 

 
Applicant :- Chandan Kumar
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Kiran Rani,Laloo Yadav
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Nalin Kumar Srivastava,J.

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

2. This application has been moved on behalf of the applicant - Chandan Kumar seeking anticipatory bail in Case Crime No. 139 of 2022, under Sections 376, 323, 504, 506 IPC, Police Station- Purani Basti, District- Basti.

3. The prosecution story as unfolded in the FIR is that the applicant on the pretext of marriage had been physically exploited the prosecutrix and committed rape to her and when any how he became ready to marry with the prosecutrix his family members intervened and the marriage did not take place. FIR was lodged on 19.6.2023 and investigation started, which is going on.

4. It has been submitted by the learned counsel for the applicant that applicant is innocent and he has apprehension of arrest in the above-mentioned case, whereas there is no credible evidence against him. Allegations levelled against the applicant are false. Investigation is going on in the matter. It is further submitted that the prosecutrix is a married lady having three children. It is further submitted that the applicant is a bachelor and he has absolutely no relation with the married prosecutrix. It is further submitted that only on the basis of animosity the applicant has been falsely implicated in this case. It is further submitted that the medical evidence does not support the prosecution version at all. It is further submitted that the prosecutrix in her statement under Section 164 Cr.P.C. has stated before the I.O. that the physical relations between the two were made with her own will and consent and they had been living as husband and wife for about 2 years. It is further submitted that the applicant never made any promise to the prosecutrix to marry her. In case applicant is granted anticipatory bail, he shall not misuse the liberty of bail and would obey all conditions of bail.

5. Learned A.G.A. opposed the prayer for anticipatory bail.

6. In the present case the applicant is a married lady, admittedly she has been living with the applicant for about two years with her own free will and consent.

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".

9. 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."

10. 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, llikelihood 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.

11. In Siddharth Vs. State of Uttar Pradesh & Another, (2022) 1 Supreme Court Cases 676, the Hon'ble Apex Court has held that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it. If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the Investigating Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation, then there is no compulsion on the officer to arrest the accused.

12. Considering the settled principles of law regarding anticipatory bail, submissions of the learned counsel for the parties, nature of accusation, role of applicant and all attending facts and circumstances of the case, 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 filing of police report under Section 173(2) Cr.P.C. before the competent Court.

13. The application is allowed accordingly.

14. 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.

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

Order Date :- 16.8.2023

Fhd