Akshay Tiwari vs State Of Chhattisgarh
2021 Latest Caselaw 2219 Chatt

                                                                                                           NAFR
                   HIGH COURT OF CHHATTISGARH, BILASPUR
                                        MCRCA No. 1063 of 2021
      • Akshay Tiwari, S/o Shri Anil Tiwari, Aged About 30 Years, R/o Shikshak Nagar,
        Beside Sarwapalli Radhakrishanan Garden, Shikshak Nagar, District : Durg,
        Chhattisgarh Mobile No.94241-52663.
                                                                                                ---- Applicant
                                                    Versus
      • State of Chhattisgarh Through The Station House Officer, P.S. Tikrapara, Raipur,
        District : Raipur (CG)
                                                                                             ---- Respondent
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For Applicant                                           : Shri BP Sharma, Advocate
 For Respondent/State                                   : Shri BP Banjare, Dy GA

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Hon'ble Shri Justice Parth Prateem Sahu Order on Board

08.09.2021

1. This is an application under Section 438 of CrPC for grant of anticipatory bail

to the applicant as he apprehends his arrest in connection with Crime No. 165 of

2021 registered at Police Station Tikrapara, Raipur (CG) for commission of

offense punishable under Section 376 of IPC.

2. Case of the prosecution, in brief, is that, prosecutrix and applicant are

known to each other since last three years. When prosecutrix was in her relatives

house at Durg, applicant asked her to come with him to attend one marriage

ceremony, upon which, she agreed and accompanied him in his Car. On

26.11.2020, at about 5 pm applicant took complainant from Durg to Raipur in his

Car. Complainant asked applicant to drop her in her house, applicant took her to

several places and after dinner, she was brought to her house. Complainant went

to kitchen to bring water for applicant, then he closed the door and pushed

complainant on Sofa and thereafter committed forceful intercourse with her. When

complainant was crying on account of illegal act of applicant, he stated and

assured her that he will perform marriage with her. After that incident, on several Mcrca 1063 of 2021

occasions and at different places ie in house of complainant, and also at

hotel, applicant had made physical relationship with her on the pretext of

marriage. Applicant turned out from his words and refused to marry her,

which made complainant to lodge report at concerned Police Station on

03.06.2021, based upon which aforementioned crime was registered

against applicant.

3. Applicant, apprehending his arrest, filed this anticipatory bail

application after rejection of his application by the Court below.

4. Shri BP Sharma, learned counsel for the applicant would submit that

applicant has not committed any crime as alleged against him. He submits

that complainant is an educated, working lady, aged about 32 years on the

date of alleged incident. Applicant has not committed any offence as

alleged against him. Even if allegations are taken to be correct, physical

relationship between complainant and applicant is consensual, as the

incident is not occurred once, but on several occasions as per allegations

made in FIR. Complainant is an influential person and only to mount

pressure on applicant, she made complaint to Police, as well as State

Women Commission. On account of her influence, Police mount pressure

upon applicant and forced him to execute agreement /compromise

/settlement deed between complainant and applicant, which was signed by

them on 24.05.2021. He relies on judgment of Hon'ble Supreme Court in

case of Sonu @ Subhash Kumar Vs State of UP and another reported in

2021 SCC Online SC 181 in support of his case and submits that when

physical relationship is consensual and only on the ground of marriage and

subsequently there was denial from the part of applicant for marriage,

offence under Section 376 would not be made out, hence applicant may be

benefited under Section 438 of CrPC.

Mcrca 1063 of 2021

5. On the other hand, Shri BP Banjare, learned counsel for the State

opposing the submissions of learned counsel for the applicant, submits that

from the contents of FIR, it is apparent that the first physical intercourse by

the applicant was forceful, without her free will. Other instance of making

physical relationship as mentioned in FIR and complaint of prosecutrix, is on

the pretext of marriage. He further pointed out that applicant being a

Contractor, is an influential person, hence complaint made by prosecutrix

was not registered as FIR immediately, and Police informed applicant and

only thereafter agreement was executed on 24.05.2021 between the

parties. Applicant has agreed to marry with prosecutrix. Learned State

counsel further submits that applicant has not only executed settlement

deed but also executed an affidavit before Notary, which is also part of case

diary.

6. Shri Pragalbh Sharma, learned counsel for objector/complainant would

submit that even after several attempts made by prosecutrix, her complaint

was not registered by the Police and FIR was registered only after her filing

of complaint before State Women Commission, which shows approach and

intimacy of applicant with higher officials of the State, hence applicant is not

entitled for anticipatory bail under Section 438 of CrPC. He also submits that

the consent of prosecutrix as argued by counsel for the applicant is not

consent under Section 90 of IPC. However, upon putting a specific query to

learned counsel for the State as well as counsel for complainant with regard

to qualification, occupation and age of prosecutrix, they submit that in

record age of prosecutrix is shown as 33 years, working as a part-time

Teacher at Navodaya Vidyalaya, Saraipali, District Mahasamund, having

PhD Degree and also a Poet/writer.

7. I have heard learned counsel for the parties.

Mcrca 1063 of 2021

8. Taking into consideration allegations levelled against applicant in FIR,

age of complainant, her education, qualified lady working as Teacher at

Navodaya School, without commenting anything on merits of the case, I am

inclined to grant anticipatory bail to the applicant.

9. Accordingly, the application is allowed and it is directed that in the

event of arrest of applicant in connection with crime in question, 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/- (Rupees twenty-five thousand)

with one surety in the like sum to the satisfaction of the concerned Arresting

Officer. The applicant shall also abide by the following conditions:

a) That the applicant shall make himself available for interrogation before the Investigating Officer as and when required;

b) 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;

c) That the applicant shall not act, in any manner, which will be prejudicial to fair and expeditious trial; and

d) That the applicant shall appear before the trial Court on each and every date given to him/her by the said Court till disposal of the trial.

Certified copy as per rules.

                          S                                      Sd/ -
                                                          (Parth Prateem Sahu)
                                                                 JUDGE
padma