Gujarat High Court
Prakashkumar Hirabhai Patel vs State Of Gujarat on 9 December, 2021
Bench: Ashokkumar C. Joshi
R/CR.MA/18553/2021 ORDER DATED: 09/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 18553 of 2021
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PRAKASHKUMAR HIRABHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR RUTVIJ S OZA(5594) for the Applicant(s) No. 1
HCLS COMMITTEE(4998) for the Respondent(s) No. 1
MS. SHIVANGI M RANA(7053) for the Respondent(s) No. 1
MS. MONALI BHATT, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 09/12/2021
ORAL ORDER
1. Heard learned Advocate Mr. Rutvij S. Oza for the Applicant,
learned Advocate Ms. Shivangi M. Rana for the Respondent / Original
Complainant and learned APP Ms. Monali Bhatt for the Respondent - State.
2. By way of the present application under Section 438 of the
Code of Criminal Procedure, 1973, the applicant-accused has prayed for
enlarging him on anticipatory bail in connection with the FIR N o .
1 1 2 1 5 0 1 4 2 1 0 3 7 6 registered with Khambholaj Police Station, Anand for
the offenses punishable under Sections 376, 406, 420 and 114 of the Indian
Penal Code.
3. Learned Advocate for the Applicant has submitted that the
Applicant is apprehending his arrest in connection the aforesaid FIR and in this
connection the earlier application filed by the Applicant before the learned
Sessions Court came to be dis-allowed. Learned Advocate for the Applicant
has urged that in the present case though the offence is registered under Section
376 IPC coupled with Section 406 and 420 IPC, but there is a love affair
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between the victim and the Applicant and with consent of both, the physical
relations has been made. Therefore there is no prima facie case under Section
376 IPC. So far as allegations of entertainment, cash amount of Rs. 3 lacs by
the complainant to present Applicant is concerned, it is revealed from the
statement of account that the present Applicant has deposited certain amounts
on number of occasions in account of victim as well as her husband. Therefore,
question of misappropriation does not arise and considering the entire facts
narrated in the complaint, no prima facie case against the Applicant is made
out.
3.1 Learned Advocate for the Applicant has placed reliance on the
following judgments / orders passed in:
(i) Criminal Appeal No. 175/2013 dated 23.1.2013 in the case of
Prashant Bharti v. State of NCT of Delhi.
(ii) Anticipatory Bail Application No. 2221/2016 dated 9.1.2017 by the
Bombay High Court in the case of Akshay Manoj Jaisingbhani v. The
State of Maharashtra.
(iii) Anticipatory Bail Application No. 27/2014 with Criminal
Intervention Application No. 179/2014 dated 12.3.2014 by the Bombay
High Court in the case of Mahesh Balkrishna Dandane Intervener / Org.
Complainant / Applicant.
3.2 Learned Advocate for the Applicant has also placed reliance on the
reported decision of the Hon'ble Supreme in the case of Sonu @ Subhash
Kumar v. State of Uttar Pradesh, reported in 2021 (O) AIJEL - SC 67104
wherein the Hon'ble Supreme Court, while discussing the merits of the case
has held that the relationship between accused and prosecutrix was of
consensual nature and it is further held that even assuming that all the
allegations in the FIR are correct for the purposes of considering the
R/CR.MA/18553/2021 ORDER DATED: 09/12/2021
application for quashing under Section 482 of Cr.PC, no offence has been
established, there is no allegation to the effect that promise to marry given to
respondent was false at inception. It is further held that, on the contrary it
would appear from the contents of FIR that there was a subsequent refusal on
the part of the appellant to marry respondent which gave rise to registration of
FIR. Therefore charge sheet was quashed and set aside.
Learned Advocate Mr. Oza has heavily placed reliance on this
judgment and argued that in the present case also as such there is no false
promise. On the contrary, the prosecutrix was knowing that the applicant was
already married and therefore there was no case of false promise. But due to
one or the other reasons, a false complaint is filed, and therefore, discretion
may kindly be exercised and the present Application may be allowed.
Learned Advocate for the Applicant has submitted that in view of
the facts and circumstances stated above, this Hon'ble Court may kindly
exercise discretion under Section 438 of the Code of Criminal Procedure and
allow the present Application.
3.2 Learned Advocate for the Applicant has further submitted that the
applicant will keep himself available during the course of investigation and
trial also and will not flee from justice.
4. Learned advocate for the applicant on instructions states that
the applicant is ready and willing to abide by all the conditions including
imposition of conditions with regard to powers of Investigating Agency to
file an application before the competent Court for his remand. He further
submit that upon filing of such application by the Investigating Agency, the
right of applicant accused to oppose such application on merits may be kept
open. Learned advocate, therefore, submitted that considering the above facts,
the applicant may be granted anticipatory bail.
5. Per contra, learned Advocate Ms. Shivangi Rana appearing on behalf
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of the original complainant / victim has heavily opposed the present application
and submitted that the alleged allegations were in the guise of false promise of
marriage and therefore there is a prima facie case against the Applicant. She has
therefore submitted that discretion may not be exercised and the present
Application may be rejected.
6. Learned Additional Public Prosecutor appearing on behalf of
the respondent - State has opposed grant of anticipatory bail looking to the
nature and gravity of the offence. Learned APP has submitted that as such the
alleged relationship was due to false promise of marriage and therefore it was
not a implied consent. On the contrary, it is a false promise of marriage given
by the Applicant and hence prima facie case is of rape under Section 376 IPC
and therefore this Hon'ble Court may not exercise discretion under Section 438
Cr.P.C and the present Application may be rejected.
7. Having heard the arguments advanced by the learned advocates
for the parties and perusing the material placed on record and taking into
consideration the facts of the case, nature of allegations, gravity of offences,
role attributed to the accused, without discussing the evidence in detail, at
this stage, I am inclined to grant anticipatory bail to the applicant.
8. This Court has considered following aspects,
(a) Pursuant to the police papers including the FIR, ex facie it appears
that the so-called physical relationship was with consent and therefore
this court is of the view that it is consensual in nature.
(b) The Applicant and the victim were in love affair since long and
known to each other and both are major and therefore primafacie it is
consensual in nature. Merely talking about marital status does not
amount to false promise since the prosecutrix was in knowledge about
the status of the Applicant, prior to long consensual relationship.
R/CR.MA/18553/2021 ORDER DATED: 09/12/2021
(c) As such there are no antecedents against the Applicant.
(d) So far as the aspect of cheating is concerned, the alleged offence is
under Section 406 and 420 IPC where the maximum punishment is 7
years and this court is of the opinion that there is no strong prima facie
case upon the Applicant under Section 376 IPC and therefore this court
is inclined to exercise discretion under Section 438 Cr. P.C.
(e) as per catena of decisions of Hon'ble Supreme Court there are mainly two
factors which are required to be considered by this court;
(i) prima facie case
(ii) requirement of accused for custodial interrogation.
Therefore, in the facts and circumstances of the present case, this
court is inclined to consider the case of the applicant.
9. This Court has also considered the judgment cited by the learned
Advocate for the Applicant in the case of Sonu @ Subhash Kumar (supra)
and more particularly paragraph 11 of the said judgment which reads thus:
"Bearing in mind the tests which have been enunciated in the above
decision, we are of the view that even assuming that all the allegations
in the FIR are correct for the purpose of considering the application for
quashing under Section 482, no offence has been established. There is
no allegation to the effect that the promise to marry given to the second
respondent was false at the inception. On the contrary, it would appear
from the contents of the FIR that there was as subsequent refusal on the
part of the appellant to marry the second respondent which gave rise to
the registration of the FIR. On these facts, we are of the view that the
High Court was in error in declining to entertain the petition under
Section 482 of Cr. PC on the basis that it was only the evidence at trial
which would lead to a determination as to whether an offence was
established."
10. This Court has also taken into consideration the law laid down
by the Hon'ble Apex Court in the case of Siddharam Satlingappa Mhetre
R/CR.MA/18553/2021 ORDER DATED: 09/12/2021
Vs. State of Maharashtra and Ors., reported at [2011] 1 SCC 694, wherein
the Hon'ble Apex Court reiterated the law laid down by the Constitution Bench
in the case of Shri Gurubaksh Singh Sibbia & Ors. Vs. State of Punjab,
reported at (1980) 2 SCC 565. Further, this Court has also taken into
consideration the ratio laid down in the case of Sushila Aggarwal and Ors. v.
State (NCT of Delhi) and Anr. in Special Leave Petition No. 7281-
7282/2017 dated 29.01.2020.
11. In the result, the present application is allowed. The applicant is
ordered to be released on anticipatory bail in the event of his arrest in
connection with a FIR No. 11215014210376 registered with
Khambholaj Police Station, Anand for the offenses punishable under Sections
376, 406, 420 and 114 of the Indian Penal Code on executing a personal bond
of Rs. 50,000/- (Rupees Fifty Thousand) with one surety of like amount on the
following conditions;
(a) shall cooperate with the investigation and make available for
interrogation whenever required;
(b) shall remain present at concerned Police Station on 12.1.2022
between 12.00 Noon and 2.00 p.m.;
(c) shall not directly or indirectly make any inducement, threat or promise
to any person acquainted with the fact of the case so as to dissuade him from
disclosing such facts to the court or to any police officer;
(d) shall not obstruct or hamper the police investigation and not to play
mischief with the evidence collected or yet to be collected by the police;
(e) shall at the time of execution of bond, furnish the address to the
investigating officer and the court concerned and shall not change his residence
till the final disposal of the case till further orders;
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(f) shall not leave India without the permission of the concerned trial court
and if having passport shall deposit the same before the concerned trial court
within a week; and
(g) it would be open to the Investigating Officer to file an application for
remand if he considers it proper and just and the learned Magistrate would
decide the remand application without being influenced of the observations
made by this Court;
12. The applicant shall remain present before the learned Magistrate on
the first date of hearing of such application and on all subsequent occasions, as
may be directed by the learned Magistrate. This would be sufficient to treat the
accused in the judicial custody for the purpose of entertaining application of
the prosecution for police remand. This is, however, without prejudice to the
right of the accused to seek stay against an order of remand, if, ultimately,
granted, and the power of the learned Magistrate to consider such a request
in accordance with law. It is clarified that the applicant, even if, remanded
to the police custody, upon completion of such period of police remand, shall
be set free immediately, subject to other conditions of this anticipatory bail
order.
13. At the trial, the concerned trial court shall not be influenced by the
prima facie observations made by this Court in the present order.
14. Rule is made absolute. Direct service is permitted.
(A. C. JOSHI,J)
(per court 2) J.N.W
