Abhishek Jain vs State
2013 Latest Caselaw 2644 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                     Reserved on: 06.06. 2013
%                                                Date of Decision: 07.06.2013

        BAIL APPLN. 926/2013 & Crl. M.A. 1116/2013 (Interim Bail)

        ABHISHEK JAIN                                        ..... Petitioner
                            Through:      Mrs. Jyoti Singh, Sr. Adv. with
                                          Mr. Manish Jain, Mr. Ankur
                                          Garg, Mr. Sougata Ganguly, Mr.
                                          Deepak Bansal and Ms. Saaila,
                                          Advs.
                            versus
        STATE                                        ..... Respondent
                            Through:      Mr. Mukesh Gupta, APP for the
                                          State.
CORAM:
MR. JUSTICE R.V. EASWAR

                                JUDGMENT

R.V. EASWAR, J.:

This application under Section 438 of the Cr.P.C. has been filed by one

Abhishek Jain in case FIR No.128 of 2013 registered in PS Saraswati Vihar,

North West District under Section 376/420/506/34 of the Indian Penal Code.

2. The application has been filed in the following circumstances. The

complainant, Nirmal Kaur alias Neha Gabree, is aged 24 years and is working

as Assistant Accounts Manager in a firm in Delhi. She got married to the

applicant on 4.3.2013 in the Arya Samaj Mandir Trust. The marriage was

also registered by the Registrar of Hindu Marriages, Ghaziabad on 4.3.2013.

On 30.3.2013 the complainant filed a FIR against her husband Abhishek Jain,

the applicant herein, stating that he raped her on the false pretext of marriage

and also threatened to kill her. She referred to her earlier complaint dated

25.2.2013 where she had stated that Abhishek Jain was having an affair with

her for more than two years before the marriage and that during that period,

he had raped her several times in the false pretext and promise of marrying

her. She also alleged that even after marriage he continued to torture her and

physically abuse her. Action was therefore requested to be taken against the

applicant/accused.

3. Apprehending arrest, the accused has filed the present application for

anticipatory bail, the bail application filed by him before the Additional

Sessions Judge having been dismissed by order dated 25.4.2013.

4. I have considered the facts and the rival contentions. The complainant

filed a complaint earlier on 25.2.2013 with the SHO, Rani Bagh Police

Station, Delhi. In that complaint she had stated how on several occasions

before the marriage the applicant had raped her, after falsely promising to

marry her. However, on 4.3.2013 the applicant and the complainant actually

got married and there is evidence in the form of the certificate given by the

Arya Samaj Vivah Mandir Trust, Ghaziabad and the certificate of registration

given by the Registrar, Hindu Marriages, Ghaziabad. Both the certificates are

dated 4.3.2013. The FIR also narrates the physical abuse which the

complainant had suffered in the hands of the applicant after the marriage and

that because the parents of the accused did not accept the marriage of their

son with the complainant, the accused stayed away from them in a rented

house in Rohini. The FIR further narrates that the accused even used to tell

the complainant that "he had married me only to make me withdraw my

complaint." Apparently the accused had even lied about his job; he in fact did

not have any job and was dependant on the complainant to meet the

household expenses. He was also demanding money from her every now and

then. Several instances are narrated in the FIR about the threats and physical

abuse suffered by the complainant not only from the applicant but also by his

family members who had conspired together to cheat her and get her married

to him only to make her withdraw the complaint of rape against him.

5. The above specific averments in the FIR are grave. It is not clear to

me why the applicant abused the complainant and inflicted physical injuries

upon her by beating her if he really loved her and got married to her. The

complaint dated 25.2.2013, a copy of which is on record, cogently narrates the

long relationship which the complainant and the applicant had before their

marriage during which time, as narrated by the complainant, the accused

raped the complainant several times after falsely promising to her that he will

marry her. Having sexual relations with a woman against her will or without

her consent also amounts to rape under section 375 of the IPC. If the consent

was obtained on a false assurance or promise of marriage, the consent cannot

be considered to be full and free and it would be a case of rape. This is what

appears to have happened to the complainant before the marriage took place

on 4.3.2013. The complaint also contains reference to an occasion when the

complainant was taken to a lady doctor at Shalimar Bagh for check up and

treatment of pregnancy. There is also reference to the fact that the accused

had threatened her that he has taken photographs while they spent time in a

hotel at Gurgaon and that he would put those photographs on the internet and

ruin her character for life and that then she will be left with no option but to

commit suicide. When the complainant filed a complaint on 25.2.2013

containing such serious allegations against the applicant, it was natural for

him to think that marrying the complainant would leave her with no option

but to withdraw the complaint. The marriage was therefore gone through

only as a means of making the complainant withdraw her complaint. This is

what actually happened and on the very next day of the marriage i.e. on

5.3.2013; a hand written letter was filed with the SHO by the complainant that

she is withdrawing her complaint dated 25.2.2013. In these circumstances it

would be naïve to think that the marriage was a solemn "samskara" entered

into between the parties as a union for life.

6. The learned counsel for the applicant contended that the FIR was

instigated because the parents of the accused had disowned him and

disinherited him from their property. I am not prepared to accept the

contention. The FIR and the earlier complaint contain reference to the family

members of the accused, including his parents, threatening and abusing the

complainant. If they had disowned him, they could not have come to his aid

and support to such an extent; that throws considerable doubt on the

credibility of the alleged "disowning" of the accused by them.

7. The learned counsel for the applicant referred to two judgments of this

Court. The first is the judgment dated 22.5.2013 of Kailash Gambhir, J in

Bail Appln.311/2013 (Rohit Chauhan Vs. State NCT of Delhi). That was

also a case of an FIR registered under sections 376/506/328 of the IPC.

There, on the facts of the case, the learned Judge was not prepared to accept

that the accused committed rape of the prosecutrix. There were peculiar

circumstances in that case, as a reading of the judgment would show. There

the prosecutrix was, in the words of the learned Judge,

"quite an ultra-modern lady with an open outlook towards life, enjoying alcohol in the company of men which is evident from the photographs placed on record, which have not been denied by the prosecutrix present in court. She does not appear to be such a vulnerable lady that she would not raise her voice on being immensely exploited over such a long period of time. As per the prosecutrix, she had a physical relationship with the petitioner for the last more than 2 ½ years and it is not just a single act of sharing physical intimacy but the same continued

for almost a long period of three years. There lies a possibility that the petitioner might have then refused to marry the prosecutrix and this refusal on the part of the petitioner gave a serious jolt to the prosecutrix who then with the help of police, solemnized the marriage with him, in the wee hours of the night when petitioner was in his casual apparels (track suit). It is only on 30.01.2013, that the complainant raised her voice for the first time and made allegations of rape against the petitioner. It is an admitted case that the said marriage ultimately did not consummate as the complainant was never brought to the matrimonial home and the petitioner has already filed a civil suit to seek decree of declaration for declaring the said marriage as null and void."

The above and the general observations made by the learned Judge in

paragraph 14 of the judgment have to be understood in the light of the facts of

that case and do not constitute the ratio decidendi. The other judgment is

Jagdish Nautiyal Vs. State 2013 1AD (Delhi) 475. In that case the learned

Judge (V. K. Shali, J) held that unless and until there is an imminent and great

imperative to have custodial interrogation of the accused, the anticipatory bail

should be granted. It was further observed that even assuming that the

allegations in that case against the bail applicant were correct, at best a case of

consent of the complainant for contracting marriage having been obtained by

fraud or misrepresentation would be made out, and that does not require any

custodial interrogation. Each case is decided in the background of the facts of

that particular case and there can be no general proposition that in all cases

where the complainant says that her consent was obtained by fraud or

misrepresentation, custodial interrogation of the accused would not be

necessary. Again the observations in the cited decision need to be appreciated

and understood on the basis of the facts and circumstances of that case.

8. The facts of the present case are tell-tale. It would prima facie appear

that the marriage was gone through only to persuade the complainant to

withdraw her complaint dated 25.2.2013. Immediately after the marriage the

applicant started physically abusing the complainant, apparently, in the hope

that she would leave him, but when she filed a complaint, the accused was

forced to apply for bail. The joint statement made before the sessions court

was only to the effect that they were married, and nothing more. The efforts

towards mediation failed and the sessions court referred the matter to the

assigned court which dismissed the bail application. Even before me, the

complainant who appeared stated that she was not willing to go for mediation.

9. For the above reasons I do not find any merit in the anticipatory bail

application. The same is rejected. All pending applications also stand

disposed of.

R.V. EASWAR (VACATION JUDGE)

JUNE 07, 2013 vld