Chattisgarh High Court
Ritesh Shah vs State Of Chhattisgarh on 4 August, 2021
1
NAFR
HIGH COURT of CHHATTISGARH, BILASPUR
MCRCA No. 827 of 2021
• Ritesh Shah, S/o late Ramnik Shah, aged about 41 years, R/o
222, Kusum Villa, Telibandha, P.S. Telibandha, Raipur
Chhattisgarh
------Applicant
VERSUS
• State of Chhattisgarh through: Police Station Telibandha, District
Raipur, Chhattisgarh
-------Non-applicant
For Applicant : Mr. Prafull N. Bharat, Sr.Adv. with
Mr. Kashif Shakil, Advocate
For Non-applicant- State : Mr. Shrikant Kaushik, P.L.
For Objector : Mr. Sandeep Shrivastava, Adv.
(proceedings through video conferencing)
Hon'ble Shri Parth Prateem Sahu, Judge
ORDER
04/08/2021
1. Applicant has preferred this application under Section 438 of CrPC
for grant of anticipatory bail as he apprehends his arrest in
connection with Crime No. 207/2021 registered at Police Station
Telibandha, Raipur District Raipur (C.G.) for the offence punishable
under Sections 376, 376(2)(N) & 377 of IPC.
2. As per the case of prosecution, in brief- complainant has lodged a
written complaint before the SHO, police station Kanker on
09.06.2021 levelling allegations against the present applicant of
making physical relationship with her without her consent initially in
the month of January 2015. After commission of act, applicant stated
her that do not disclose the incident to anyone else, he would
perform marriage with her in that year itself. Applicant introduced the
complainant with his mother showing his intention of marrying the
complainant. Thereafter, applicant on the pretext of marriage again
made forceful physical relationship with her, this was intimated to
mother of applicant. Mother of applicant suffered with cancer
disease, therefore, marriage could not be performed. Complainant
got the government job and she was posted at Kanker. She shifted to
Kanker from Raipur upon her posting where also the applicant came
there on number of occasions in her rental house and made physical
relationship with her. Applicant took her to Visakhapatnam in the
month of December 2017 and stayed in a hotel for couple of days
and in May 2018 to Kanha forest, stayed in the hotel for couple of
days and there also he made physical relationship with her on the
pretext of marriage. But whenever she talks about their marriage,
applicant for one or other reason avoided it. Applicant continuously
made physical relationship with her for five years on the ground that
he would marry her. Later on, he refused to marry with complainant.
Relationship of complainant and the applicant was also known to her
friends as well. When on 14.05.2021, complainant went to the house
of applicant and stated that he made physical relationship with her on
the false pretext of marriage and now he is refusing to marry her.
Upon calling by applicant, one girl Seema Sahu along with Manoj
Sahu also came there and they have threatened the complainant of
life and also abused her. The applicant on the pretext of marriage
has committed sexual intercourse with her since January 2015 to
May 2020 against her will. Based on the complaint, instant crime
was registered against the present applicant for the aforementioned
offence.
3. Mr. Praful N. Bharat, learned senior counsel for the applicant would
submit that the applicant has met with the complainant in the year
2012 while he was working in contract in one of the Government
departments where the applicant has to visit on account of his
business dealing. At one point of time, in the year 2013, applicant
met with complainant and proposed the complainant for marriage to
which she refused on the ground that she wanted to marry some
other person and thereafter the matter ended at that time. He further
submits that thereafter in the year 2015-16, applicant again came in
contact with complainant though he wanted to marry her initially but
looking to her behavior and conduct as reflecting in the mobile chats
filed along with application, applicant has changed his mind. He
referred to some of the copies of mobile chats placed on record to
argue that the complainant was not intended to stay in a joint family
with his mother and brother. Applicant is alone to take care to his
mother who is suffering from cancer and a brother who is not well
settled in his life. He also referred to the chats placed along with
covering memo to argue that the complainant after sometime of
relationship started harassing and abusing not only the applicant but
also the family members, hence in view of the conduct and act of the
complainant it was not possible for the applicant to marry her. He
also argued that the complainant herself had sent photographs of
some of girls mentioning therein that he could marry with any of them
which shows that the complainant herself was not interested to marry
with applicant. Earlier also the complainant developed physical
relationship with one boy by name Bhupendra Thakur as she was in
the love affair with that boy. Against Bhupendra Thakur also similar
allegations were levelled of making forceful physical relationship
against her will on the pretext of marriage. In support of this
contention, he places reliance upon document Annexure A-2 and
Annexure A-3 which are the copies of F.i.R. bearing crime no.
34/2014 and the copy of evidence of complainant recorded in that
crime before the Trial Court on 29.01.2015. He also submitted that in
that case, Bhupendra Thakur was acquitted from the charges
levelled against him.
4. The complainant has already faced the similar situation as alleged
against the applicant in the year 2014 itself. She was well aware of
the circumstances of making physical relationship on the pretext of
marriage, hence, the allegations that the applicant has made forceful
relationship with her on the pretext of marriage is suspicious.
Complainant, with her own will, has developed relationship with the
applicant. As per allegation she continuously made physical
relationship from 2015 to 2019. She has not made any complaint
against the present applicant of making forceful intercourse with her
but visited several places along with applicant on different point of
time and intervals. The physical relationship was consensual. He
submits that on account of subsequent development in their
relationship as appearing from the mobile chats, particularly, the act
and behavior of complainant, it was not possible for the applicant to
marry her and make her life partner. He also submits that the
complainant is represented through a counsel in these proceedings
but has not refuted the mobile chat placed on record. In support of
his contentions, he places reliance upon the judgments of Hon'ble
Supreme Court in case of Maheshwar Tigga v. State of Jharkhand
reported in (2020) 10 SCC 108.
5. Mr. Shrikant Kaushik, learned State counsel opposing the
submissions made by learned counsel for the applicant submits that
the applicant on false pretext of marriage has developed relationship
and continuously made physical relationship with her. He read-over
the contents of F.I.R. and submits that the applicant since beginning
avoided the marriage for one or the other reasons stating that they
will marry. Time and again new dates have been given. He also
pointed out that as per the contents of F.I.R., applicant took the
complainant to his mother, introduced her impressing his desire of
marrying her, upon which, mother of applicant was also agreed.
There are specific allegations against the present applicant of
commission of crime as alleged against him.
6. Mr. Sandeep Shrivastava, learned counsel for objector vehemently
opposes the submissions of learned counsel for the applicants. He
submits that in the F.I.R., there is specific mention that after break up
with earlier Bhupendra Thakur, applicant taking an opportunity has
come closer to her. Complainant started working in an advertisement
agency of applicant at Raipur and when once she went to office of
applicant in January 2015 which is in his house where applicant
committed forceful intercourse with her. He submits that thereafter
the applicant had given assurance that he will marry her. Applicant
continuously made physical relationship with her on the pretext of
marriage. Applicant deceived the complainant, later on, he directly
refused to marry with complainant. He also referred to some of the
chats placed by her on record stating to be of the year 2014 to argue
that the applicant had presurrised her to enter into compromise with
Bhupendra against whom she has lodged complaint for commission
of crime under Section 376 IPC. He further pointed out that the
applicant himself in mobile chat has sent message that to
compromise and not to marry with Bhupendra. He also read-over
some of the mobile chats filed along with the objection and covering
memo to argue that the mobile chat itself shows that the complainant
and the applicant were in relationship and the applicant on the false
pretext of marriage has developed physical relationship with
complainant. He submits that the physical relationship initially in the
month January 2015 was a forceful intercourse with the complainant.
Applicant from the beginning did not want to marry with complainant
but only to exploit her sexually. There was no intention of applicant
to marry her and she was misled. The subsequent act of
complainant of making physical relationship was under
misconception and it cannot be accepted as a willful consent of
complainant. With respect to mobile chat referred by the learned
counsel for the applicant, he submits that some of the chats made by
complainant were on provocation of applicant. He places his reliance
on the judgment of Supreme Court in case of Yedla Srinivasa Rao
v. State of A.P. reported in (2006) 11 SCC 615; 2006 CrLR SC 784,
Anurag Soni v. State of Chhattisgarh reported in (2019) 13 SCC 1;
2019 CrLR SC 620, Nathu Singh v. State of Uttar Pradesh and
others decided in CRA 522/2021 on 28.05.2021 and State of U.P v.
Naushad decided in CRA 1949/2013 on 19.11.2013. Learned
counsel further submits that the report lodged by the applicant
making allegation against the complainants was also after filing of the
report against him. He submits that whitener is being used on the
date mentioned earlier and subsequently it has been changed to
some other date showing that the complaint was being lodged prior.
Applicant is an influential person and having contact with police
department, therefore he succeeded to mention the earlier date in his
application.
At this stage, Mr. P.N. Bharat, learned counsel for applicant
would submit that in the complaint there was receipt and seal of
police department of the date on which the complaint against the
complainant was lodged by the applicant. He submits that the
complainant was continuously threatening the applicant to involve
him and his family members to some false case. She also gave
threat of consuming some poisonous substance and one day she
came to there house and threatened of jumping from balcony of their
flat/ house to which somehow the applicant managed to convince her
and to sent her back to house. Allegation of utilizing whitener in the
report is an attempt to mislead the Court by the complainant.
7. I have heard learned counsel for the respective parties and also
perused the case diary.
8. From the contents of F.I.R. it would show that initially the applicant
came in contact with complainant in the year 2012. He proposed her
in the year 2013 which was refused by complainant. Some dispute
occurred between the complainant and the earlier boy Bhupendra
Thakur which resulted in lodging criminal complaint and criminal case
against that person. F.I.R. would further show that first physical
relationship as alleged was developed by the applicant in the month
of January 2015 though allegedly it was forceful against her will but
she has not lodged any complaint regarding this before any authority
nor to any other person. Thereafter, there was continuous physical
relationship between them at several places on different occasions.
She visited along with applicant to different places and stayed in
hotels. The mobile chats which were placed on record by the
applicant and relied upon to show the cause of reason for refusal of
marriage with complainant was not refuted by the learned counsel for
objector that the mobile chats were not of complainant but it is
argued that on provocation some of the mobile chats have been
forwarded. The complainant in the year 2014, before making physical
relationship with applicant, had faced similar situation. She was aged
about 25 years on the date of alleged first incident in the year 2015
and at present she is above 30 years of age and is a working lady.
9. Taking into consideration, the entirety of allegation levelled in the
F.I.R./ complaint and material placed on record by the applicant and
the complainant, without commenting anything on merits of the case,
I find it a fit case where the applicant should be granted benefit of
Section 438 of CrPC.
10. Accordingly, application is allowed and it is directed that in the event
of arrest of applicant in connection with the crime in question
(207/2021), he shall be released on anticipatory bail by the Officer
arresting him on his executing a personal bond in the sum of Rs.
25,000/- with one surety in the like sum to the satisfaction of the
concerned arresting Officer. Applicant shall also abide by the
following conditions:
(i) that the applicant shall make himself available for
interrogation before the Investigation Officer as and when
required;
(ii) that 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
officer;
(iii) that the applicant shall not act, in any manner, which will
be prejudicial to fair and expeditious trial; and
(iv) that the applicant shall appear before the trial Court on
each and every date given to him by the said Court till
disposal of the trial.
Sd/-
(Parth Prateem Sahu)
Judge
Pawan
