Abhishek Kumar vs The State Of Delhi
2019 Latest Caselaw 4867 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
                                        Order reserved on: 06.09.2019
                                     Order pronounced on: 11.10.2019

+       BAIL APPLN. 1913/2019
        Abhishek Kumar                          ..... Petitioner
                            Through:     Mr. Lokesh Kumar Mishra
                                         and Himanshu Sharma,
                                         Advocates
                            versus

        THE STATE OF DELHI                         ..... Respondent
                      Through:           Mr G.M.Farooqui,
                                         APP for State alongwith
                                         W/SI Rekha Chauhan,
                                         P.S. N.A. Nagar.
CORAM:
    HON'BLE MR. JUSTICE BRIJESH SETHI
                 ORDER

%

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

filed on behalf of the petitioner Abhishek Kumar under section 438

Cr.P.C. r/w. section 482 CrPC.

2. Brief facts for disposal of the application are that an FIR No.

300/19 dt. 21.05.19 u/s. 376/328/313/506 IPC was registered on the

statement of complainant in which she alleged that she had come in

contact with the applicant through mobile app "happen" and friendly

relations had developed between them. She further alleged that

Bail Appl. no. 1913/2019 Page no.1 accused had proposed to marry her in Nov. 2017 and she had

accepted the proposal. However, on false pretext of marriage,

applicant has established sexual relations with her for the last two

years in his rented premises in new Ashok Nagar In Feb. 2019 when

she became pregnant, the petitioner gave her pills to abort the child.

It is further alleged that on 11.04.1019, she was made to drink

alcohol by the applicant and thereafter he had raped her and

prepared an obscene video. Her statement under Section 164 CrPC

was also recorded on 22.05.2019 by the Court of Ms. Sujit Saurabh,

MM, Delhi, in which she corroborated the facts narrated in the FIR.

3. Learned counsel for the petitioner has prayed for anticipatory

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

He has clean antecedent. The present FIR has been registered by the

complainant with the sole intention to extort money. The victim is

already married to one Rambir Rajput and her divorce with him by

mutual consent has taken place on 14.05.2019 only and, therefore,

her claim that the petitioner has obtained her consent on the pretext

of marriage is absolutely false. Even the statement of husband of the

complainant namely Ranbir Singh has been recorded by the

Bail Appl. no. 1913/2019 Page no.2 investigating agency. Ld counsel has further submitted that

complainant/victim had claimed that she is unmarried and had

proposed to the petitioner for marriage. Thus, in fact the petitioner

has been cheated by the prosecutrix on false pretext of marriage. It

is further submitted by Ld counsel that as per FIR, the victim is in

relationship with the petitioner since November 2017 and they have

resided together till 15.04.2019. This fact clearly reveals that she

was a consenting party. It is further submitted that the FIR has been

registered after one and half year of the alleged incident.

4. It is next submitted by Ld. counsel that prior to the

registration of FIR i.e on 17.04.2019, 25.04.2019 and 29.04.2019,

the petitioner and his mother have already given a written complaint

against the prosecutrix. Subsequently, on 21.05.2019, the petitioner

has also moved an application u/s. 156 (3) Cr.P.C. against the

prosecutrix for registration of FIR before the court of CJM, Meerut,

U.P. The petitioner has also given a written complaint to Delhi

Police on 21.05.2019. It is further submitted that an anticipatory bail

application was moved before Ld ADJ and vide order dated

11.06.2019, the Ld. ASJ had granted interim protection to the

Bail Appl. no. 1913/2019 Page no.3 petitioner with the direction to join the investigation as and when

required. The petitioner had also joined the investigation and fully

cooperated with the investigating agency. However, on 01.07.2019,

the Ld. ASJ dismissed the bail application of the petitioner on the

basis of whatsapp chat handed over by the complainant to the

investigating agency. The said whatsapp chat was, however, never

made by the petitioner. The petitioner had thereafter moved an

application u/s. 91 CrPC before the court of Ld. ACMM and was

made a prayer to seize the mobile of complainant and investigate the

matter. The IO had filed reply which prima facie shows that the

complainant had mislead the investigating agency as well as the

Court with the sole intention to get the bail application dismissed.

The second anticipatory bail application of the petitioner was again

dismissed by the court of Ld. ASJ without appreciating the settled

law and change in the circumstances. It is next argued that

relationship between the complainant and the petitioner was

consensual and it can be established without custodial interrogation.

It is, therefore, prayed that petitioner be granted anticipatory bail/

interim protection to join the investigation and SHO/IO be directed

Bail Appl. no. 1913/2019 Page no.4 to release the petitioner in the event of his arrest in FIR No.

300/2019, u/s. 376/313/328/506 IPC, PS New Ashok Nagar, Delhi.

5. 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 victim was being raped by the petitioner/

accused for the last one and half year on the pretext of marriage and

was also threatened on whatsapp chatting that she would be killed.

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

6. I have considered the rival submissions and am of the

decision that no grounds for anticipatory bail are made out keeping

in mind the nature of the offence alleged to have been committed by

the petitioner. The petitioner has sexually exploited the complainant

for about one and a half year on the false promise of marriage with

the result that she had become pregnant. Thereafter, the petitioner

had administered abortion pills to the complainant and there are

allegations that he has also threatened the victim. The fact whether

whatsapp messenger chat was false or correct will only be

established when the FSL report is received. Both the mobile phones

i.e. of the victim and petitioner/ accused have been seized for

Bail Appl. no. 1913/2019 Page no.5 verifying the authenticity of the chat. The investigation is at a very

initial stage. The allegations are grave. The Hon‟ble Supreme Court

in the case „Anurag Soni vs. State of Chhattisgarh, 2019 SCC

Online SC 509' has distinguished between 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.

7. In the present case, the petitioner/ accused has committed

sexual intercourse with the victim several times on the false pretext

Bail Appl. no. 1913/2019 Page no.6 of marriage. There are allegations that he has sedated her and

thereafter committed rape and has made her obscene video. In view

of the above facts, it is difficult to believe the fact that sexual

relations between the parties were consensual. The submission of

the petitioner that no false promise of marriage was made by him

and in fact he stands cheated is a matter of investigation. At this

stage, it is difficult to hold that the relationship between the parties

was consensual in nature.

8. 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 obscene video, no grounds for anticipatory bail are made out.

The anticipatory bail application is, therefore, dismissed.

                                                 BRIJESH SETHI, J
OCTOBER 11, 2019
Amit




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