Chirag Dipakbhai Sulekha vs State Of Gujarat
2021 Latest Caselaw 164 Guj

         R/CR.MA/18834/2020                                   ORDER



        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

        R/CRIMINAL MISC.APPLICATION NO. 18834 of 2020

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                         CHIRAG DIPAKBHAI SULEKHA
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR P P MAJMUDAR(5284) for the Applicant(s) No. 1
MR RAMNANDAN SINGH(1126) for the Respondent(s) No. 1
MS. MOXA THAKKAR, APP (2) for the Respondent(s) No. 1
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 CORAM: HONOURABLE DR. JUSTICE A. P. THAKER

                              Date : 07/01/2021

                               ORAL ORDER

[1] Heard Mr. P.P. Majmudar, learned advocate for the applicant, Ms. Moxa Thakkar, learned Additional Public Prosecutor for the respondent - State and Mr. R.N.Singh, learned advocate for the original complainant at length through Video Conferencing.

[2] The present application is filed under Section 439 of the Code of Criminal Procedure in connection with an FIR being C.R.No.11196037200856 of 2020 registered with Lakshmipura Police Station, District: Vadodara City for the offences punishable under Sections 366, 376(2)(n) and 506 of the Indian Penal Code.

[3] Learned advocate appearing for the applicant has vehemently submitted that the offence is alleged to have been committed during the period between 2014 to 2019 on

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different locations and the complaint has been lodged on 12.11.2020. He has also submitted that there is a huge delay in registering the FIR for which no sufficient explanation has been offered by the original complainant. He has also submitted that as per the FIR the original complainant had knowledge regarding the marriage of the applicant and she denied to marry him. He has also submitted that a alleged by the complainant that the applicant had allured her by promising that the applicant will take divorce from his wife. While reading the FIR, he has submitted that it clearly appears that the ingredients of the alleged offence is missing and there is possibility of consensual relations. He has further submitted that the case of the prosecution is not probable to be true and the same is concocted one. He has also submitted that the applicant has been falsely implicated by the complainant just to harass and extort money from the applicant. He has submitted that the original complainant is an educated lady and major. He has relied on the decision rendered by the Apex Court in Criminal Appeal No. 1165 of 2019 in case of Pramod Suryabhan Pawar v. The State of Maharashtra & Anr. dated 21.8.2019. He has also referred to the various text messages. He has further submitted that the applicant will be available during the trial and will not run away from the justice and will not interfere in the investigation. He has further submitted that this application for bail may kindly be considered and the applicant may be released on bail on stringent conditions.

        R/CR.MA/18834/2020                                      ORDER




[4]   Per    contra,        learned   Additional   Public      Prosecutor

appearing on behalf of the respondent-State has vehemently opposed grant of regular bail on the grounds that the allegations made in the FIR is serious in nature and the involvement of the present applicant is from very beginning. She has also contended that the applicant has allured the complainant by giving false promise to marry and that the applicant will take divorce from his wife. She has submitted that prima-facie it is a case of rape and the investigation is at crucial stage. She has prayed to dismiss the present application.

[5] Mr. R.N.Singh, learned advocate for the original complainant has also supported the arguments of the learned APP and has stated that the original complainant has already filed affidavit in this matter where she has clearly stated that the applicant accused has been exploiting me since March, 2014. he has also submitted that by using his position in the Company and harass her. He has contended that the complainant was threatened by the applicant of making Photographs viral. He has also contended that the complainant has submitted a complaint to the Committee constituted by the Company under Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 wherein also the applicant was able to delay the process as he had influence in the Company. He has also submitted that in that complaint she

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har taken limited point but in FIR she has narrated everything which had happened with her in the past. He has submitted that there is likelihood of the applicant tampering the evidence. He has submitted that the Whatsapp messages are tampered one. He has also submitted that the learned advocate for the petitioner has selectively read the Whatsapp messages. According to the Whatsapp messages, it is clear that the present applicant has exploited her. The learned advocate for the complainant has relied upon the judgment reported in case of Anurag Soni v. State of Chhattisgarh, reported in (2019) 13 SCC 1 as well as decision rendered in case of State of Uttar Pradesh v. Naushad, (2013) 16 SCC 651, and has prayed to dismiss the application at this stage.

[6] In case of Pramod Suryabhan Pawar v. The State of Maharashtra & Anr. (Supra), the Hon'ble Apex Court has, in Paras 18 & 20, observed as under:

"18. To summarise the legal position that emerges from the above cases, the "consent" of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the "consent" was vitiated by a "misconception of fact" arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act."

"20. The allegations in the FIR do not on their face indicate that the promise by the appellant was false, or that the complainant engaged in sexual relations on the basis of this promise. There is no allegation in the FIR that when the appellant promised to marry the complainant, it was done in bad faith or with the

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intention to deceive her. The appellant's failur in 2016 to fulfill his promise made in 2008 cannot be construed to mean the promise itself was false. The allegations in the FIR indicate that the complainant was aware that there existed obstacles to marrying the appellant since 2008, and that she and the appellant continued to engage in sexual relations long after their getting married had become a disputed matter. Even thereafter, the complainant travelled to visit and reside with the appellant at his postings and allowed him to spend his weekends at her residence. The allegations in the FIR belie the case that she was deceived by the appellant's promise of marriage. Therefore, even if the facts set out in the complainant's statements are accepted in totality, no offence under Section 375 of the IPC has occured".

[7] In case of Anurag Soni v. State of Chhattisgarh (Supra), the Hon'ble Apex Court has, in Para 19, held as under:

"19. As observed hereinabove, the consent given by the prosecutrix was on misconception of fact. Such incidents are on increase nowadays. Such offences are against the society. Rape is the most morall and physically reprehensible crime in a society, an assault on the body, mind and privacy of the victim. As observed by this Court in a catena of decisions, while a murderer destroys the physical frame of the victim, a rapists degrades and defiles the soul of a helpless female. Rape reduces a woman to an animal, as it shakes the very core of her life. By no means can a rape victim be called an accomplice. Rape leaves a permanent scar on the life of the victim. Rape is a crime against the entire society and violates the human rights of the victim. Being the most hated crime, rape tantamous to a serious blow to the supreme honour of a woman, and offends both her esteem and dignity. Therefore, merely because the accused had married with another lady and/ or even the prosecutrix has subsequently married, is no ground not to convict the appellant-accused for the offence punishable under Section 376 IPC. The appellant- accused must face the consequences of the crime committed by him."

[8] In the decision in the case of State of Uttar Pradesh v. Naushad (Supra), the Hon'ble Supreme Court has, in Paras-

         R/CR.MA/18834/2020                                     ORDER



21 and 23, held as under:

"21. The High Court has gravely erred in fact and in law by reversing the conviction of the accused for the offence of rape and convicting him under Section 376 of the IPC. It is apparent from the evidence on record that the accused had obtained the consent of the prosecutrix for sexual intercourse under a misconception of fact i.e. that he would marry her and thus made her pregnant. He is thus guilty of rape as defined under Section 375 of the IPC and is liable to be punished for the offence under Section 376 of the IPC. The trial court was absolutely correct in appreciating the evidence on record and convicting and sentencing the accused for the offence of rape by holding that the accused had obtained the consent of the prosecutrix under a misconception of fact and this act of his amounts to an offence as the alleged consent is on the basis of misconception, and the accused raped the prosecutrix. He brazenly raped her for two years or more giving her the false assurance that he would marry her, and as a consequence she became pregnant. For the reasons stated supra, we have to uphold the judgment and order of the trial court in convicting and sentencing the accused for the offence of rape, by reversing the judgment and order of the High Court. We find the accused- respondent guilty of the offence of rape as defined under Section 375 of the IPC.

"23. A woman's body is not a man's plaything and he cannot take advantage of it in order to satisfy his lust and desires by fooling a woman into consenting to sexual intercourse simply because he wants to indulge in it. The accused in this case has committed the vile act of rape and deserves to be suitably punished for it".

[9] Having heard the learned advocates for the parties, considering the aforesaid decisions by the Hon'ble Apex Court and perusing the materials placed on record, it appears that the petitioner herein and the complainant are serving in the same establishment. It also appears that the FIR has been lodged on 12.11.2020 for the offences alleged to have been committed during the period of 2014 to 2019. It also reveals from the FIR itself that there was relationship

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between the applicant and the complainant. It also reveals from the FIR that the applicant herein has stated to the complainant that he wants to marry with her, which was denied by the complainant as the applicant was already married. It is also revealed that there was physical relationship between the parties. Of course, it is stated by complainant, in her complaint, that it was against her will. It also reveals that from the Whatsapp messages that the complainant and the applicant are knowing to each other and there was relationship between them. Taking into consideration the materials placed on record, this Court is inclined to grant regular bail to the applicant.

[10] This Court has considered following aspects;

(i) That the FIR has been lodged in the year 2020 for the offences alleged to have been occurred for the period from 2014 to 2019;

(ii) That the accused is in jail since 12.11.2020;

(iii) That there is no prayer by the prosecution that custodial remand is required;

(iv) That the applicant and the complainant are adult and educated;

(v) That the apprehension of the complainant regarding spoiling her life by making viral the Whatsapp chat between the parties and the past photographs, can be taken care of by directing the applicant herein not to make viral the whatsapp chat and Photographs between the parties;

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(vi) Assurance given by the learned advocate for the applicant that the applicant will abide by all the conditions which may be imposed by this Court.

[11] This Court has also taken into consideration the law laid down by the Apex Court in the case of Sanjay Chandra Vs. Central Bureau of Investigation, (2012) 1 SCC 40;

[12] In the result, the present application is allowed and the applicant is ordered to be released on regular bail in connection with an FIR being C.R.No.11196037200856 of 2020 registered with Lakshmipura Police Station, District: Vadodara City, on executing a personal bond of Rs.25,000/- (Rupees Twenty Five Thousand Only) with one local surety of the like amount to the satisfaction of the learned Trial Court and subject to the conditions that he shall;

[a] not take undue advantage of liberty or misuse liberty;

[b] not act in a manner injuries to the interest of the prosecution;

[c] surrender his passport, if any, to the lower court within a week;

[d] not to enter the vicinity of the Vadodara District for six months except for attending judicial proceedings, investigation and marking his presence;

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[e] not leave the State of Gujarat without prior permission of the concerned Trial Court;

[f] not to make viral the photographs and whatsapp chat between the applicant and the complainant, however he can produce the same during the judicial proceedings, if permitted by the concerned Court;

[g] mark presence before the concerned Police Station on alternate every Monday for initial six months and thereafter, on alternate Monday of every English calendar month, for a period of six months, between 10:00 a.m. and 2:00 p.m.;

[h] furnish latest address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of the Trial Court;

[13] The Authorities will release the applicant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the concerned Trial Court will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the Trial Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions in accordance with law. At the trial, learned Trial Court shall not be influenced by the observations of preliminary nature,

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qua the evidence at this stage, made by this Court while enlarging the applicant on bail. Rule is made absolute accordingly.

[14] Registry is directed to intimate about this order to the concerned authorities through fax, email and/or any other suitable electronic mode. Learned advocate for the applicant is also permitted to intimate about this order to the concerned authorities through fax, email and/or any other suitable electronic mode.

(DR. A. P. THAKER, J) SAJ GEORGE