Delhi High Court
Upwan Chhabra vs State on 21 October, 2019
$~8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 21.10.2019
+ BAIL APPLN. 1393/2019
UPWAN CHHABRA ..... Petitioner
Through Mr. Rajiv Mohan, Advocate with
Mr. Abhimanyu Kampani, Ms.
Swapnil Krishna and Ms. Nipun,
Advocates.
versus
STATE ..... Respondent
Through Mr. G.M. Farooqui, APP for the
State with SI Anil Rathod PS
Greater Kailash.
Mr. Sangam Kumar, Mr. Sanjay
Diwakar and Mr. Vikash Kumar,
Advocates.
CORAM:
HON'BLE MR. JUSTICE BRIJESH SETHI
JUDGMENT
BRIJESH SETHI, J (Oral)
BAIL APPLN. 1393/2019 & CRL.M.A. 35670/2019
1. This is an anticipatory bail application filed by the petitioner in
FIR No. 105/2019, under Section 376/323/506/509/34 IPC, PS Greater
Kailash.
2. The petitioner has prayed for anticipatory bail on the ground that he is
innocent and has been falsely implicated in this case. He has no criminal
Bail Appl No. 1393/2019 Page no.1
antecedent and the allegations levelled by the victim/complainant against
him are false. It is further submitted that petitioner is a married man having
a young child and no useful purpose would be served by sending him to jail.
3. Learned APP for the state has opposed the bail application on the
ground that the allegations against the petitioner are serious in nature.
He has indulged in sexual intercourse with the complainant on the
assurance that he will marry her. He had assured the complainant that
since he is unhappy with his marriage, he would divorce his wife and
will marry the complainant thereafter. It is further submitted that there
are allegations that petitioner is trying to influence the witnesses and
threatening the complainant to withdraw the case. The complainant is a
foreign national (Czech Republic) and has shifted her place of stay twice
in search of peace and security but is followed by some strangers. She
has apprehension that accused, if granted bail, could tamper with the
evidence.
4. Learned counsel for the petitioner has submitted that even though
the charge-sheet has been filed in this case, this court can decide
anticipatory bail application. In this regard, he has relied upon a case
titled as "Bharat Chaudhary & Ors. Vs. State of Bihar'', Crl. Appeal
Bail Appl No. 1393/2019 Page no.2
No. 1250 of 2003 arising out of SPL(Crl.) No. 2243 of 2003) wherein
the Hon‟ble Supreme court has held that there is no restriction or
absolute bar on the concerned court granting anticipatory bail even in
cases where either cognizance has been taken or a charge-sheet has been
filed. He has, therefore, argued that he be granted anticipatory bail and
protection till his regular bail application is heard by the learned Trial
Court.
5. Ld. Counsel for the petitioner has further relied upon case titled as
"State vs Sandeep", Crl.L.P. 532/2019, wherein the Hon‟ble Court has
held that it is difficult to accept that continuing with an intimate
relationship, which also involves engaging in sexual activity, over a
significant period of time, is induced and involuntary, merely on the
assertion that the other party has expressed its intention to get married.
6. Ld. Counsel for the petitioner has further relied upon the case
titled as "Imran vs. State of Rajasthan & Anr.", SLP(Crl.) No.
9271/2011, date of order 13.01.2012. In the said case, it was held that
since the investigation is over and charge-sheet has already been filed
and custodial interrogation of the petitioner is not required and there is
no chance of his tampering with evidence, the accused/petitioner can be
Bail Appl No. 1393/2019 Page no.3
released on bail.
7. Ld. Counsel for the petitioner has further relied upon the
following case law:-
1).Arif Iqbal vs. State, Crl. BA 2145/2009;
2).Prem Prakash Chaudhary vs. State (Bail Appl N. 157/2018);
3).Rohit Chauhan vs. State (Bail A.No. 311/2013);
4).Jai Prakash Singh vs. State of Bihar, (2012) 4 SCC 379;
5).Tameezuddin @ Tammu vs. State (2009) 15 SCC 566;
6).Shivashankar @ Shiva vs. State NCT of Delhi (2008) SCC
3106.
8. I have heard the rival submissions and gone through the above
case law cited by learned counsel for the petitioner. There is no quarrel
with the proposition of law laid down therein. However these cases are
distinguishable on the basis of the facts and circumstances stated therein.
In the present case, the complainant who is a foreign national (Czech
Republic) has been made to indulge in sexual activity on the pretext that
petitioner will marry her after giving divorce to his wife. There are also
allegations that the complainant has been threatened by the petitioner.
The victim has been forced to change her place of stay twice.
9. The question which now arises for consideration is whether the
petitioner is entitled to interim protection/anticipatory bail till his regular
Bail Appl No. 1393/2019 Page no.4
bail application is heard by the learned Trial Court. I have gone through
the material appearing on record. Very serious and grave allegations
have been levelled against the petitioner. It is alleged that the petitioner
had met the complainant in a party and complainant was made to believe
that though petitioner is a married man but he is separated from his wife
and is in the process of taking divorce. The petitioner had thereafter
started visiting the complainant during odd hours and regularly
established physical relationship with her by cajoling her that soon after
the divorce, he would shift her to Czech Republic and will have child
from her. On many occasions, petitioner used to become violent and
forced the complainant to have unnatural sex with him against her
wishes. The petitioner had also taken the complainant to Goa to show
that he is separated from his wife and she was the only girl in his life.
There also he had established physical relations with her on the pretext
of marriage. The complainant had gone back to Czech Republic as her
Visa had expired but he had kept asking her through video calling to
come back saying that he would commit suicide. On believing that he
was in love with her and would marry her, complainant had come back
to India in August, 2018. However, she had come to know through
Bail Appl No. 1393/2019 Page no.5
common friends that he is living with his wife and also celebrating his
marriage anniversary in the month of November, 2018. When
questioned, the petitioner replied that he has already filed a divorce case
against his wife but did not show the papers. On 04.05.2019, the
petitioner told her that he never intended to marry her and he was just
using her and also threatened her that if she reveals anything to anyone,
he would upload her nude and semi-nude photographs on the internet
and make it viral. He also threatened that he would kill her and nobody
would come to know about it since she was a foreign national. The
complainant had, thereafter, filed the present FIR.
10. Perusal of the above facts, prima facie, clearly reveals that petitioner
has established sexual relations with the complainant on the false promise of
marriage. He has also threatened her that her nude and semi-nude
photographs will be uploaded on internet. He has further threatened her
that she would be killed in case she would report the matter to the police.
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;
Bail Appl No. 1393/2019 Page no.6
"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."
11. The facts of the present case clearly reveal that there was a false
promise of marriage and the complainant was kept under dark and sexual
relations were established with her. It is an admitted case of the
petitioner that he had also contacted the complainant on Whatsapp.
There is an apprehension that if released on bail, petitioner will try to
influence and threaten the complainant. Keeping in mind the facts and
circumstances of the case and particularly the fact that a foreign national
(Czech Republic) has been raped on the false pretext of marriage and has
Bail Appl No. 1393/2019 Page no.7
further been threatened, no grounds for interim protection/anticipatory
bail are made out till the appearance of the petitioner before the Ld.
Addl. Sessions Judge where his regular bail application will be heard.
12. The application is, therefore, dismissed.
13. Petition stands disposed of accordingly.
BRIJESH SETHI, J
OCTOBER 21, 2019
AK
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