Surendra Nath Upadhyay vs State Of U.P.
2023 Latest Caselaw 27968 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:198851
 
Court No. - 73
 

 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 11189 of 2023
 

 
Applicant :- Surendra Nath Upadhyay
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Harsh Bardhan Choubey,Sunil Kumar Singh
 
Counsel for Opposite Party :- G.A.,Ashish Kumar Srivastava,Rajiv Kumar Srivastava
 

 
Hon'ble Nalin Kumar Srivastava,J.

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

2. This application has been moved on behalf of the applicant - Surendra Nath Upadhyay seeking anticipatory bail in Case Crime No.241 of 2023, under Sections 376, 417, 506 IPC, Police Station Lanka, District Varanasi.

3. The major prosecutrix, who had been in live-in relations with the applicant for about 7 years, was physically exploited by the applicant on the false pretext of marriage, but subsequently he refused to marry her. F.I.R. was lodged on 23.6.2023 and investigation started, which is going on.

4. Learned counsel for the applicant submits that that applicant is innocent and he has apprehension of arrest in the above-mentioned case, whereas there is no credible evidence against him. He has been falsely implicated in this matter. Investigation is going on into the matter. It is further submitted that it is a case of consensual relationship between the two major persons of opposite sex for a long span of time for almost 7 years. The prosecutrix had been living with the applicant happily and willingly in a live-in relationship and the physical relations between the two developed with the consent of both sides, but subsequently when the applicant came to know about the relationship of the prosecutrix with some other person and he also witnessed the incident that she was not ready and willing to keep the old parents of the applicant with her, his desire for marriage with the victim diminished. In this regard a complaint was also made by the applicant against the prosecutrix at the police station concerned on 2.6.2023. It is further submitted that the the applicant is still a bachelor. Since it was a case of consensual relationship between two major persons, no case of rape is made out against the applicant. It is further submitted that the present F.I.R. has been lodged with an ulterior motive. It is further submitted that no custodial interrogation is required in the matter from the applicant. It is further submitted that in case the applicant is granted anticipatory bail, he shall not misuse the liberty of bail and would obey all conditions of bail. In support of his contention, reliance has also been placed by the learned counsel for the applicant on the decision of the Hon'ble Supreme Court in Ansaar Mohammad Vs. State of Rajasthan, 2022 0 Supreme (SC) 726.

5. Learned A.G.A. as well as learned counsel for the informant opposed the prayer for anticipatory bail and it has been submitted that on the false pretext of marriage, the applicant only to fulfill his lust, physically exploited the victim of the case and he had no intention to marry her since the very inception of the relationship between the two. The consent, if any, was obtained by playing fraud by the applicant.

6. 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."

7. 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)

8. 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.

9. 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."

10. In the present case, it reflects from the factual matrix of the matter that the consensual relationship between the prosecutrix and the applicant developed on the basis of a promise to marry on the part of the accused applicant, which continued for about seven yeas. They were in live-in relationship for a long span of time. The present applicant is still a bachelor.

11. 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.

12. 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.

13. It appears to be a case of consensual relationship. 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 the filing of police report under section 173 (2) Cr.P.C. before the competent Court.

14. The anticipatory bail application is allowed.

15. In the event of arrest of the applicant in the aforesaid case crime, he shall be released on anticipatory bail till the filing of police report 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 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.

16. 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 :- 11.10.2023

ss