Nikhil Parasar vs The State Govt. Nct Of Delhi
2010 Latest Caselaw 520 Del

* IN THE    HIGH     COURT         OF   DELHI    AT    NEW      DELHI
+                         BAIL APPLN. No. 1745/2009

%                         Reserved on:        29th January, 2010
                          Date of Decision:   1st February, 2010

#    NIKHIL PARASAR                             ..... Petitioners

                          Through: Mr. R.S. Juneja, Adv.
!
                          versus

$    THE STATE GOVT. NCT OF DELHI           ..... Respondent
                       Through: Mr.Pawan Bahl, APP
                       Ms. Ruchi Mishra for complainant.


*    CORAM:
      HON'BLE MR. JUSTICE V.K. JAIN

     1.    Whether the Reporters of local papers
           may be allowed to see the judgment?
     2.    To be referred to the Reporter or not?
     3.    Whether the judgment should be
           reported in the Digest?

: V.K. JAIN, J.

1. This is a petition under Section 438 of the Code of Criminal

Procedure for grant of bail. The case of the prosecution, in a

nutshell, is that the parents of the complainant/prosecutrix

selected the petitioner through Internet in February, 2009 for

marriage with the complainant/prosecutrix. The petitioner and

the prosecutrix met face to face on 16 th February, 2009, liked

each other and agree for marriage. The family of the petitioner

also accepted the prosecutrix for marriage with the petitioner.

The prosecutrix and her family members then met the family

members of the petitioner in Parikrima Hotel, Connaught Place,

New Delhi. The prosecutrix was liked by the parents of the

petitioner. In the end of March, 2009, when the petitioner was in

Mumbai on an official tour, he persuaded the prosecutrix to come

to Mumbai. The prosecutrix, accordingly, joined him and stayed

with him in a hotel for 3-4 days. During night, the petitioner had

sexual intercourse with the prosecutrix and he also assured her

that he was going to marry her. Roka was, thereafter, held in

Delhi on 3rd April, 2009. The petitioner then took the prosecutrix

with him on 4th April, 1999 to Sailor Home, Vasant Kunj, on the

pretext of celebrating Roka ceremony. They stayed there in the

night intervening 4th April, 2009 and 5th April, 2009 and the

petitioner again had sexual intercourse with the prosecutrix

without her consent. She, however, did not report the matter to

the police, since the petitioner told her that they were going to

marry soon. The prosecutrix further claims that the petitioner

again took her to the same place 3-4 times and again had sexual

intercourse with her on the same pretext. Ultimately, the

petitioner refused to marry the prosecutrix, leading to matter

being reported to the police.

2. The first question, which comes up for consideration in this

case, is as to whether having sexual intercourse with the

prosecutrix, in the facts and circumstances of this case, amounts

to committing rape or not. This issue came up for consideration

before the Hon‟ble Supreme Court in Deelip Singh Vs. State of

Bihar 2004 (iv) Ad. Cri. (SC) 433. After examining case law on

the subject, including its earlier decision in Uday vs. State of

Karnataka 2003 (2) Scales 329, the Hon‟ble Supreme Court,

inter alia, observed as under:

"it needs to be clarified that a representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent. If on the facts it is established that at the very inception of the making of promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of Section 375 Clause secondly."

3. In Yedla Srinivasa Rao vs. State of A.P. 2006 VIII AD (SC)

309, the Hon‟ble Supreme Court, in the facts and circumstances

of the case before it, found that the intention of the accused, right

from the beginning was not honest and he kept on promising that

he would marry her till she became pregnant. The Hon‟ble

Supreme Court then, inter alia, held as under:

"This kind of consent obtained by the accused cannot be said to be any consent because she was under a misconception of fact that the accused intends to marry her, therefore, she had submitted to sexual intercourse with him..... It is more than clear that the accused made a false promise that he would marry her. Therefore, the intention of the accused right from the beginning was not bona fide and the poor girl submitted to the lust of the accused completely being misled by the accused who held out the promise for marriage. This kind of consent taken by the accused with clear intention not to fulfil the promise and persuaded the girl to believe that he is going to marry her and obtained her consent for the sexual intercourse under total misconception, cannot be treated to be a consent.... It is always matter of evidence whether the consent was obtained willingly or consent has been obtained by holding a false promise which the accused never intended to fulfil. If the court of facts come to the conclusion that the consent has been obtained under misconception and the accused persuaded a girl of tender age that the he would marry her then in that case it can always be said that such consent was not obtained voluntarily but under a misconception of fact and the accused right from the beginning never intended to fulfil the promise. Such consent cannot condone the offence."

4. Though the facts of the cases before the Hon‟ble Supreme

Court were different from the facts in this case, the proposition of

law which emerges from the above-referred decisions is that

though every case of having sexual intercourse with a girl, on the

promise of marrying her, would not amount to commission of

rape, it cannot be said that in no case, having sexual intercourse

with a girl on the strength of such a promise would amount to

commission of rape. Every such case has to be examined on its

individual facts, to be considered in the light of attending

circumstances of the case. The Hon‟ble Supreme Court has

specifically recognized and held that if it is shown that since the

very inception of making the promise, the accused did not intend

to marry her and the prosecutrix extends her consent to have

sexual intercourse with him, only because she believes the

misrepresentation made to her, and thereby forms a

misconception of fact that the accused was definitely going to

marry her, it would amount to commission of rape.

5. The learned counsel for the petitioner has relied upon the

decision of the Hon‟ble Supreme Court in the case of Uday

(supra) in support of his contention that having sexual intercourse

on the false promise of marriage does not constitute rape. In the

case before the Hon‟ble Supreme Court, a friendship had

developed between the prosecutrix and the appellant. When the

appellant proposed to marry her, the prosecutrix told him that

since they belonged to different castes, such a marriage would

not be possible. In these circumstances, the Hon‟ble Supreme

Court was of the view that the consent, given by the prosecutrix

to sexual intercourse with a person with whom she was deeply

had love on a promise that he would marry her on a later date,

cannot be said to be given under a misconception of fact.

However, the Hon‟ble Court observed as under:

"but we must add that there is no strait jacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the Courts provide at best guidance to the judicial mind while considering a question of consent, but the Court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact."

6. In the case before it, the Hon‟ble Court, noticing that the

prosecutrix was deeply in love with the appellant and having

found that the proposal for their marriage was bound to be

seriously opposed by their family members and finding no

evidence to prove conclusively that the appellant never intended

to marry her, felt that perhaps the appellant wanted to marry her,

but was not able to get enough courage to disclose his intention to

his family members for fear of strong opposition from them and

that the matter had got complicated on account of the prosecutrix

becoming pregnant, leading the appellant to distancing himself

from her. The Hon‟ble Court also noticed that the prosecutrix was

clearly conscious of a distinct possibility that the marriage might

not take place at all despite the promise of appellant and

concluded that there was hardly any evidence to prove that the

prosecutrix had consented to have sexually intercourse with the

appellant only as a consequence of her belief based on his

promise, that they will get married in due course.

7. The facts of the present case are, however, altogether

different. The petitioner was not even known to the prosecutrix

not to talk of she being in love with him at any time, before they

met each other for the purpose of deciding whether they would be

a suitable life partners for each other or not. Not only did the

appellant like and approve the prosecutrix as her life partner, his

family also had a meeting with family of the prosecutrix in

Parikrima Hotal, Connaught Place, New Delhi. The meeting

firstly between the petitioner and the prosecutrix and thereafter

between the families was followed by a Roka ceremony in New

Delhi on 3rd April, 2009. In these circumstances, it is difficult to

dispute that the prosecutrix had intercourse with the petitioner in

Mumbai only because both of them having liked each other and

both the families having consented to their marriage, the

petitioner was definitely going to marry her within a few days.

While going to Mumbai and staying with him in hotel, the

prosecutrix could never have suspected that the petitioner was

not going to marry her. She, therefore, acted solely upon the

representation made to her by the petitioner and succumbed to

her pressure or persuasions to have sexual intercourse with him.

Her belief in the promise made by the petitioner had become

stronger by the time she went to Sailors Home with him, as her

Roka with the petitioner had been performed before that date.

The facts of the case of Uday (supra) being altogether different,

the decision of the Hon‟ble Court would not help the petitioner,

particularly when the Hon‟ble Supreme Court even in the case of

Uday (supra), did not say that in no case, consent given by the

prosecutrix to sexual intercourse on the assurance of marriage

would be involuntary or will not amount to a misconception of

fact.

8. The expression „under a misconception of fact‟ is enough to

include a case where the misrepresentation, made by the

accused, leads to a misconception of fact in the mind of

prosecutrix, who, believing the misrepresentation made to her

and presuming, it to be true and correct, forms a misconception of

fact that the accused was definitely going to marry her and acting

thereupon, she consents to have sexual intercourse with him. As

held by the Hon‟ble Supreme Court in the case of Deelip (supra),

a representation deliberately made by the accused, with a view to

elicit the assent of the victim without having the intention or

inclination to marry her, will vitiate the consent if it is established

that at the very inception of the making of promise, the accused

did not really entertain the intention of marrying her and the

promise to marry was only a make belief held out only to obtain

her consent for sexual intercourse.

9. If I take the view that sexual intercourse with a girl, in the

facts and circumstances such as in the present case, does not

amount to rape, it will result in unscrupulous and mischievous

persons, taking undue advantage of innocent girls by promising

marriage with them, without having any intention to do so,

re-assuring the girl and her family by making the two families

meet each other and formalize the matter by ceremonies, such as

an engagement, persuading the girl to have sexual intercourse

with him by making her believe that he was definitely going to

marry her and then abandoning her, after robbing her of what is

most dear to her. A case where the girl agrees to have sexual

intercourse on account of her love and passion for the boy and not

solely on account of the misrepresentation made to her by the boy

or a case where a boy, on account of circumstances, which he

could not have foreseen or which are beyond his control, does not

marry her, despite having all good intentions to do so, has to be

treated differently from a case, such as the present one, where

the petitioner since the very inception had no intention of

marrying the prosecutrix to whom he was a complete stranger

before he met her to consider the proposal for marriage with her.

A view, which is likely to result in victimization or exploitation of

innocent girls, needs to be avoided and the Courts need to take a

view, which would discourage unscrupulous persons from taking

advantage of innocent girls by alluring them and having sexual

intercourse with them, on a false promise of marriage.

10. If a girl surrenders herself to a boy, who comes into contact

with her for the first time only in connection with a proposal for

her marriage with him and who not only proposes to marry her

but also formalizes his promise and strengthens her belief in his

promise by entering into a formal ceremony such as engagement

with her and thereby convinces her and that he is actually going

to marry her, she does it not because she loves him or wants a

have pleasure with him, but, because she does not want to

disappoint her future husband. She does not, at that stage,

harbour any doubt about their forthcoming marriage and

therefore allows herself to be persuaded by him to have physical

relations with him, in the belief that there was nothing wrong in

establishing physical relations with someone who was going to be

her husband after a few days. In case, she doubts his intentions

as regards the promise made by him, to marry her, she would

never succumb to his lusty demands.

11. Taking a view that persuading a girl to have physical

relations on the false promise of marriage, despite having no

intention to marry, will in no case constitute rape, will amount to

putting premium on a conduct which is not only highly

reprehensible and abhorable but also criminal in nature. If this

is allowed to happen, it will enable immoral and dishonest

persons, including those who come to this country for such very

purposes, to exploit girls belonging to weaker sections and lower

strata of society by alluring them with false promise of marriage

pressuring them to have physical relations with them by making

them believe that they are going to marry them and that there

was nothing wrong in having such relations with a person who is

very soon going to be her husband and later on turn; their back at

her, in a comfortable belief that the law being on their side, they

can easily get away with their misdeeds. The courts cannot and

should not give such a licence to those who keep on looking for

opportunities to exploit the sentiments and vulnerability of Indian

girls who perceive marriage as a pious bonding; and not as a

union of two bodies. Allowing such persons to go scot free after

exploiting poor and helpless girls in this manner could never have

been the intention of the legislature which considered rape to be

such a heinous as to attract imprisonment up to life.

12. When the Hon‟ble Supreme Court recognised that there

could be cases where obtaining consent for sexual intercourse by

false promise of marriage may amount to rape, it obviously had

cases such as the present one in mind, where the girl succumbs to

the pressure of the boy only because she believes, on account of

promises made and ceremony performed, that he was going to be

her husband very soon. If she knows that the boy who is making

such a promise and is also formalising it by roka/engagement

does not intend to marry her she is not going to allow herself to be

persuaded by him.

13. According to the petitioner, he came to know from the

mother of the prosecutrix that she was a Kanojia. If the family of

the prosecutrix had misrepresented about their caste and that

was the decisive factor for the petitioner agreeing to marry the

prosecutrix, her mother would never have disclosed this to the

petitioner, at least till their marriage even if she was her step

mother. The whole effort of her family would then have been to

keep their caste under wraps, instead of proclaiming it to the

petitioner. This by itself shows that the plea taken by the

petitioner that he is not marrying the prosecutrix only because of

her caste is just an afterthought in an attempt to save himself

from criminal liability.

14. In the present case, the only reason, being given by the

petitioner for not marrying the prosecutrix, is that though she

was a Kanojia, she and her parents had misrepresented to him

that she was a Kaushik (Brahmin) and that is why he later on

declined to marry her. The case of the prosecution, on the other

hand, is that the petitioner had met the prosecutrix where he had

liked her and, therefore, he agreed to marry her not on account of

her castes, but because he liked her after meeting her and

interacting with her. As noted earlier, the personal meeting

between the petitioner and the prosecutrix was followed by a

meeting of the families and led to engagement of the petitioner

with the prosecutrix on 3rd April, 2009. Both, the petitioner as

well as the prosecutrix, are well-educated persons. It is difficult to

accept that the petitioner genuinely wanted to marry the

prosecutrix, but is not marrying her only because of her caste.

Can it be said that the petitioner would have agreed to marry any

girl merely because she belonged to a particular caste or

sub-caste, even if he did not approve of her personality,

temperament, education, culture, upbringing and family

background. The answer can, obviously, be in negative. From

the facts and circumstances of the case, it appear to me that from

the very beginning, the petitioner did not really intend to marry

the prosecutrix and that is why he did not wait even till his formal

engagement with her and persuaded her to come to Mumbai and

to live with him in a hotel. Had the petitioner been such an

orthodox and conservative person so as to refuse marry the

prosecutrix only on account of her caste, he would not have even

thought of having sexual intercourse with her before marriage

and would have waited till his marriage with her. It is difficult to

accept that a young and well-educated boy such as the petitioner,

who is modern, bold and outgoing enough to call the prosecutrix

to Mumbai, spends a few nights with her in a hotel under an

assumed name and follows it up by taking her to Sailors Home in

New Delhi a number of times and has sexual intercourse with her,

would not marry her only on account of her caste/sub-caste. It,

therefore, appears to me that the plea taken by the petitioner that

he declined to marry the prosecutrix only because she was a

Kanojia and not a Kaushik is only a false defence set up in order to

wriggle out of criminal case, registered against him.

15. It was pointed out by the learned counsel for the petitioner

that in the first complaint made to the police, there was no

allegation of rape. We need to recognise that in a tradition

bound society like ours, it is not easy for an unmarried girl to

admit a mistake of this nature made by her. It must have taken

quite some time for the prosecutrix to muster enough courage to

disclose to her parents that she had allowed herself to be used by

a person, who never intended to marry her. She disclosed it only

when she felt that there was really no reasonable possibility of

this man still marrying her. In any case, this would have no

bearing in the present case, as corroborative evidence has been

collected by the IO to show that the petitioner had spent nights

with the prosecutrix not only in a hotel in Mumbai but also in

Sailors Home in New Delhi.

16. It was also submitted by the learned counsel for the

petitioner that this is not the case of the complainant that she had

consented to physical relations with the petitioner on the strength

of the promise made by him to marry her and that her case in the

FIR is that the petitioner had sex with her without her consent

and she did not report the matter to the police on account of the

promise of marriage made by him. As noted earlier, this is not

easy for an Indian girl to admit that she consented to have sexual

intercourse or did not resist the advances made by the boy in

whose company she spent a number of nights either in hotel or in

a Sailors Home. Therefore, her first attempt may be to avoid

disclosing such weakness on her part. But, the facts and

circumstances of the case clearly indicate that this was a case of

the prosecutrix succumbing to the demands of the petitioner for

establishing physical relations with him, believing the

misrepresentation made by him since not only he, but also his

family had approved her and the proposal had also been

formalized in the form of Roka ceremony and she, therefore,

entertained a misconception of fact that the petitioner was soon

going to be her husband.

17. The learned counsel for the petitioners has referred to

decision of the Hon‟ble Supreme Court in State of Maharashtra

vs. Uddav 2002 (3) Crimes (SC), where the prosecutrix and the

accused had developed friendly intimacy and on account of that

relationship, the respondent had sexual intercourse with the

prosecutrix and promise to marry her was ultimately declined.

In the present case, as noted earlier, there was no intimacy

between the prosecutrix and the petitioner, who were not even

known to each other before when the father of the prosecutrix

selected the petitioner, as a person, who could be a suitable

match for their daughter. The learned counsel also referred to

the decision of Hon‟ble Supreme Court in Pradeep Kumar vs.

State of Bihar & Anr. (2007) 3 SCC (Cri) 407. I have gone

through this judgment, but I do not find any such proposition in it,

as would show that having sexual intercourse with a girl in the

circumstances, such as in the present case, would not amount to

commission of rape. He has also referred to the decision of this

Court in Crl.M.A.No.12865/2009 in Bail Application

No.2145/2009 where bail was granted to a person who had

developed intimacy with the prosecutrix and had later made

promise to marry here. In that case, the prosecutrix had gone to

the extent of giving intoxicating pills to her family members so as

to have physical relation with him in her own house. In that case,

there were letters written by the prosecutrix to the petitioner

which indicated that she was deeply in love with him and wanted

not only to come close to him, but also to have a child from him. In

these circumstances, the anticipatory bail was granted to the

petitioner. However, the facts of this case are altogether

different.

The learned counsel has also referred to the order of this

Court dated 7th October, 2009 in Bail Application

No.1467/2007, where the complainant claimed to have married

the petitioner by garlanding in a temple in Vrindavan. However,

the facts of the present case are altogether different and it is an

admitted position that the petitioner has flatly refused to marry

the prosecutrix. The learned counsel has referred to decision of

this Court in Manish Kumar vs. State & Anr. 2005 (3) JCC

1611. In that case also, there was a love affair between the

complainant and the accused. Subsequent to lodging of FIR, the

accused had married the complainant and a petition was filed by

both, the complainant as well as the accused, for quashing FIR. In

that case, the prosecutrix and the petitioner were deeply in love

with each other and had been touring out of Delhi. This

judgment is, therefore, of no help to the petitioner. The learned

counsel has lastly referred to the decision of Bombay High Court

in Sunil Vishnu Salve & Anr. vs. State of Maharashtra 2006

(3) Crimes 49 and decision of Jharkhand in Kubar Chandra vs.

State of Bihar 2005 (1) RCR (Cri) 905. Having considered both

these judgments, I am of the view that they have no application to

the facts of the present case.

18. Though in his petition under Section 482 of the Code of

Criminal Procedure, the petitioner had denied having sexual

intercourse with the prosecutrix in a hotel in Mumbai, I find that

at the time of hearing of the anticipatory bail application of the

petitioner before the learned Additional Sessions Judge, his

counsel did not dispute this part of the allegations against the

petitioner. Even otherwise, evidence has been collected during

investigation which shows that the petitioner had stayed with the

prosecutrix not only in a hotel in Mumbai, but also in a Sailors

Home in New Delhi. It would not be appropriate to scrutinize the

evidence and comment on it at this stage lest the petitioner gets

prejudiced on account of scrutiny and evaluation of the evidence

at this stage.

19. As observed by the Hon‟ble Supreme Court in Pokar Ram

vs. State of Rajasthan AIR 1985 SC 969, relevant

considerations, governing the Court‟s decision in granting

anticipatory bail under Section 438 of the Code of Criminal

Procedure, are materially different from those which apply while

considering application for bail by a person, who is arrested in the

course of investigation or by a person who is convicted and who

seeks bail during pendency of the appeal. The power of the Court

under Section 438 of the Code of Criminal Procedure being

somewhat extraordinary in character should normally be used

only where it appears that the petitioner before the Court may

have been implicated in a false case and there are reasonable

grounds to believe that he has not likely to otherwise misuse the

liberty of bail, if granted to him. The offence under Section 376

of IPC being a serious offence, the Court ought to be circumspect

while considering request of an accused in a case of this nature

for grant of anticipatory bail. The facts and circumstances of this

case do not make out an appropriate case for exercise of

discretion under Section 438 of the Code of Criminal Procedure.

In fact, the Status Report filed by the State, shows that the

petitioner has been absconding and has not surrendered, despite

raids at the places of his relatives. The application of the

petitioner for grant of anticipatory bail has already been rejected

by the Court of Sessions. A person, who is absconding and

evading process of law, is not entitled to grant of anticipatory bail

save in exceptional case justifying departure from this principal.

Unless there are peculiar and special facts and circumstances in a

given case, the Court would not be justified in extending the

benefit of anticipatory bail to such a person.

20. In Jagtar Singh vs. Satendra Kaur 2002(6) Scale, the

Hon‟ble Supreme Court observed that normally when the accused

are absconding, there is no question of granting anticipatory bail

or regular bail to them. As held by the Hon‟ble Supreme Court in

State of Maharashtra vs. Mohd. Sajid Hussain 2008(1) SCC

(Crl.) 176, one of the factors, while considering the application for

grant of anticipatory bail, is the possibility of the applicant, if

granted bail, fleeing from justice. If a person is absconding,

despite raids conducted by the police and rejection of his petition

for grant of anticipatory bail by the Court of Sessions, the

prosecution may not unjustified in saying that anticipatory bail

ought not to be granted to such a person who may even flee from

justice by not attending the trial. In the absence of exceptional

and peculiar circumstances, the Court, therefore, should not

grant anticipatory bail to a person, who is evading the process of

law by continuing to remain absconding.

The bail application is hereby dismissed. The observations

made in this order, which have been necessitated only on account

of and in order to deal with the contentions raised by the

petitioner, shall, however, not affect the decision of the case at

any stage of the trial or other proceedings.

V.K. JAIN,J FEBRUARY 1, 2010 bg