Varun Kumar vs The State Of Delhi
2019 Latest Caselaw 5330 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
                           Judgment decided on: 01.11.2019
+       BAIL APPLN. 501/2019

        Varun Kumar                           ..... Petitioner
                           Through:     Mr. Davinder Hora and Mr.
                                        Sikandar Khan, Advocates
                           versus

        THE STATE OF DELHI                          ..... Respondent
                      Through:          Ms. Neelam Sharma,
                                        APP for State alongwith
                                        W/SI Manisha Sharma,
                                        P.S. Aman Vihar.
CORAM:
    HON'BLE MR. JUSTICE BRIJESH SETHI

                               JUDGMENT

BRIJESH SETHI, J (ORAL)

1. Vide this order, I shall dispose of anticipatory bail application

filed on behalf of the petitioner Varun Kumar under section 438

Cr.P.C in FIR No. 1144/18, PS. Aman Vihar, U/s. 376 IPC.

2. Learned counsel for the petitioner has prayed for anticipatory

bail on the ground that petitioner is innocent and falsely implicated.

The false allegations of sexual assault have been leveled against the

petitioner by the complainant though she has established relations with

the petitioner on her own free will. However, in the course of time,

due to unstable behavior of the complainant, the petitioner ended the

relationship and for this reason, the complainant has registered the

present FIR which is false and fabricated.

3. It is submitted that petitioner has never promised the

complainant for marriage. In fact it was the complainant who wanted

to marry the petitioner but the same was never promised and assured

by the petitioner. There is delay in registration of FIR, as FIR in the

present case has been registered after one year of establishing sexual

relationship. It is submitted that it was registered for the reason that

parents of the petitioner had raised objection regarding the relationship

of the petitioner with the complainant. It is lastly submitted that

petitioner is willing to join the investigation as and when required. He

has clean antecedent. It is, therefore, prayed that petitioner be released

on bail in the event of his arrest.

4. The application is opposed by the Ld. APP for the State on the

ground that the allegations against the applicant/ accused are serious

in nature. The petitioner has established sexual relations on false

pretext of marriage. It is submitted that memory card of the mobile

phone of the complainant is yet to be recovered from petitioner. He

has, therefore prayed for dismissal of the anticipatory bail application.

5. I have considered the rival submissions. The prosecution

version is that the complainant had met the petitioner for the purpose

of job and they had become friends. Petitioner had made forcible

physical relations with her on 08.05.2018 and thereafter he had

assured her that he would marry her. There are allegations that

petitioner took the complainant to his friend Sahil's house in Madipur

and made physical relations with her there and had again given

assurance for marriage. It is alleged that when the family members of

the petitioner had come to know about the relationship of complainant

and petitioner, they had asked him not to marry the complainant.

6. It is also alleged against the petitioner that during the course of

investigation, mobile phone and audio cassettes for voice sample were

seized and sent to FSL Rohini for opinion. The result of the same was

received wherein FSL Expert has opined that voice exhibits of

speakers marked as Ex.Q-1 & Ex.S-1 are voice samples of same

person (i.e. Varun, petitioner). Similarly voice exhibits of speakers

marked as Ex.Q-2 & Ex.S-2 are voice samples of same person (i.e.

complainant).

7. Ld. APP has also relied upon the transcript of call recording

wherein at one point complainant has categorically stated that 'what

should she do because the petitioner has deceived her'. At another

point the complainant has stated that 'if you (the petitioner) had to do

this then why did you assured me (complainant) that you would marry

me and I should go for abortion'. During the conversation

complainant has also alleged that petitioner has ruined her life. At

another point petitioner has said that 'whatever you (complainant)

want to do you can do. I (petitioner) had planned to go for court

marriage with you (complainant) but I cannot go against my family.'

8. The investigation is at a very initial stage. The allegations are

grave. Prima facie it reveals that petitioner has sexually exploited the

complainant and made physical relations with her against her consent

on the false pretext of marriage. The Hon'ble Supreme Court in the

case 'Anurag Soni vs. State of Chhattisgarh, 2019 SCC Online SC

509' has distinguished between an offence of rape and consensual sex

and has made the following observation in para 32;

Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the later falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. 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 the misconception created by 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. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 of the IPC.

9. In view of the above allegation appearing on record, it is

difficult to believe the fact that sexual relations between the parties

were consensual. In view of the above discussion and keeping in mind

the serious nature of allegations and also in view of the fact that

custodial interrogation of the petitioner would be required to recover

the memory card of his mobile phone, no grounds for anticipatory bail

are made out. The anticipatory bail application is, therefore,

dismissed.

BRIJESH SETHI, J November, 01, 2019 Amit