Gujarat High Court

Mahesh Hirabhai Chaudhary vs State Of Gujarat on 14 September, 2021

Bench: A.Y. Kogje

    R/CR.MA/12694/2021                                  ORDER DATED: 14/09/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/CRIMINAL MISC.APPLICATION NO. 12694 of 2021
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                   MAHESH HIRABHAI CHAUDHARY
                                 Versus
                          STATE OF GUJARAT
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Appearance:
KARTIKKUMAR G BAROT(9453) for the Applicant(s) No. 1
MR JIGAR G GADHAVI(5613) for the Applicant(s) No. 1
MR. H.K. PATEL, APP for the Respondent(s) No. 1
MR. HARDIK BRAHMBHATT for Original Complainant
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 CORAM: HONOURABLE MR. JUSTICE A.Y. KOGJE

                             Date : 14/09/2021

                                ORAL ORDER

1. This application is filed by the applicant under Section 438 of the Code of

Criminal Procedure, 1973 for anticipatory bail in the event of his arrest in

connection with FIR registered at C.R. No.A11210054212122 of 2021 with

SACHIN POLICE STATION, DISTRICTSURAT, for the offence punishable

under Sections 376(2)(J)(N) and 312 of the Indian Penal Code.

2. Learned Advocate appearing on behalf of the applicant would submit that

considering the nature of offence, the applicant may be enlarged on

anticipatory bail by imposing suitable conditions.

3. Learned Advocate for the applicant submitted that it is apparent that from

the allegations made in the FIR, relationship between the applicant and the

prosecutrix was consensual relationship and the prosecutrix being an adult,

was very much aware of her well being and despite this, had entered into

physical relationship with the applicant.

4. Learned Advocate for the applicant submitted that even from the

allegations made in the FIR and the investigation done so far, does not

coming out on record that the prosecutrix was influenced by some undue

R/CR.MA/12694/2021 ORDER DATED: 14/09/2021

pressure to enter into relationship. It is submitted that as the applicant has

now got married to some other girl, the present FIR is registered. It is

submitted that the fact that the relationship was a consensual relationship,

is evident as FIR is registered after the delay and even as per the FIR,

alleged offences have been taken place since March, 2019 and the FIR is

registered now in the month of June, 2021.

5. Learned Advocate for the applicant has relied upon the decision of the Apex

Court in case of Sonu alias Subhas Kumar v/s. State of Uttar Pradesh

and another reported in 2021 SCC Online SC 181 and decision of Apex

Court in case of Pramod Suryabhan Pawar v/s. State of Maharashtra and another reported in (2019) 9 SCC 608. Relying upon this judgments,

learned Advocate submitted that when the prosecutrix engaged herself in

sexual relationship with the applicant, there is no misconception of facts

and therefore, consent of the prosecutrix was not based on misconception

of facts.

6. On the other hand, the learned Additional Public Prosecutor appearing for

the respondentState has opposed grant of anticipatory bail looking to the

nature and gravity of the offence. Learned Additional Public Prosecutor

also submitted that the applicant unfortunately belongs to different faith.

Out of the relationship, the prosecutrix was pregnant and then this fact

came to the knowledge of the family members of the prosecutrix, she was

compelled to leave the family. At that time also, though the applicant was

aware of pregnancy, has persuaded the prosecutrix to abort. While doing

so, the applicant had represented to the prosecutrix about the future to be

spent together and for the sake of better future, abortion may be

undertaken and thereafter, the applicant has married to some other girl.

Hence, the intention of the applicant was clear from the inception to

misuse the trust placed by the prosecutrix in the applicant.

R/CR.MA/12694/2021 ORDER DATED: 14/09/2021

7. Having considered the rival submissions of the parties and having perused

the documents on record, in FIR, it alleged that the accusedapplicant

enticed the complainant/victim to marry with her and after marriage to

settle in Canada and entered physical relations with her. By this relation, as

the complainant/victim became pregnant, the accusedapplicant got the

foetus aborted by deceitful means. On 20/05/2021, accusedapplicant went

away from there under the pretext that, his father fell ill in his native

Banaskantha. Thereafter, she was suspicious about applicantaccused and

it came to the knowledge that, accusedapplicant has an affair with another

girl named Anjali Virabhai Patel from Kuchavada village and married with her. The accusedapplicant enticed the victim/complainant to marry with

her and frequently had physical relations with her and raped her and left

her after her abortion.

8. From the Report of the Investigating Officer, it appears that during the

course of investigation, statements of the prosecutrix and other witnesses

have been recorded, which are supporting the version given by the

prosecutrix. Statement under Section164 of the prosecutrix is also

recorded, which also supports the version of the prosecutrix. During the

course of investigation with regard to the pregnancy and abortion,

investigation is carried out and the statement of the Doctor has been

recorded, which is also supporting the case of the prosecution.

9. Prima facie, allegations made in the FIR would clearly indicate that the

applicant at the relevant time had given out the promises of better future

by migrating to Canada and it was only on such representation that

prosecutrix has entered into physical relationship. From the allegations

made in the FIR, time and again, the applicant had taken the prosecutrix

from one place to another place only with an intention to have sexual

relation. From the allegations, it is also apparent that every now and then,

the applicant has taken money from the prosecutrix, which amount to total

R/CR.MA/12694/2021 ORDER DATED: 14/09/2021

of Rs.2,00,000/ (Rupees Two Lakhs only). The prosecutrix had to sale of

her golden ornaments.

10. Even at the time when the prosecutrix was pregnant, the applicant had

convinced her to carry out abortion on the ground that they will be

developing business jointly and open a big hotel and therefore, at that

stage of life, it will not be appropriate to have a child. Immediately,

thereafter under the excuse of illness of his father at his native, the

applicant had disappeared and had got married to some other girl.

Certificate of Marriage is produced at AnnexureC.

11. Chronology of events compels the Court to prima facie arrives at conclusion

that since the inception, the applicant had no intention to stand by

promises that he made and on the basis of the promises made by the

applicant, only the prosecutrix had consented to the physical relationship.

Therefore, the consent was based on misconception of facts. The Court has

taken into consideration the decision of the Apex Court in case of Pramod

Suryabhan Pawar (supra), wherein the Court has observed in Para14

and Para16 as under:

"14. In the present case, the "misconception of fact" alleged by the complainant is the appellant's promise to marry her. Specifically in the context of a promise to marry, this Court has observed that there is a distinction between a false promise given on the understanding by the maker that it will be broken, and the breach of a promise which is made in good faith but subsequently not fulfilled. In Anurag Soni v State of Chhattisgarh, this Court held: (SCC para 12)

"12. The sum and substance of the aforesaid decisions would be that if it is established and proved that from the inception the accused who gave the promise to the prosecutrix to marry, did not have any intention to marry and the prosecutrix gave the consent for sexual intercourse on such an assurance by the accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact as per Section 90 of the IPC and, in such a case, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined under Sections 375 of the IPC and can be convicted for the offence under Section 376 of the IPC." Similar observations were made

R/CR.MA/12694/2021 ORDER DATED: 14/09/2021

by this Court in Deepak Gulati v State of Haryana ("Deepak Gulati"): (SCC p.682, para 21) "21. ... There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused..."

16. Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a "misconception of fact" that vitiates the woman's "consent". On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it. The "consent" of a woman under Section 375 is vitiated on the ground of a "misconception of fact" where such misconception was the basis for her choosing to engage in the said act. In Deepak Gulati this Court observed: (SCC pp.68284, paras 21 & 24)

"21. ... There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence. 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 misrepresentation made to her by the 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 so. Such cases must be treated differently.

24. Hence, it is evident that there must be adequate evidence to show that at the relevant time i.e. at the initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The "failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term "misconception of fact", the fact must have an immediate relevance". Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her."

R/CR.MA/12694/2021 ORDER DATED: 14/09/2021

12. Thereafter, the Court has summarized the legal position in Para18, 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."

13. The facts as indicated in the present case, prima facie indicates that the

consent if any, by the prosecutrix was arising out of the promises to marry

for better future, which appear to false promises and given in bad faith.

Moreover, the investigation is still going on and statements have been

recorded, at this stage, presuming in favour of the applicant, would hamper

the investigation.

14. In view of the aforesaid facts and circumstances, the Court is not inclined

to exercise of discretion in favour of the applicant for the grant of

anticipatory bail in connection with aforesaid C.R. Hence, the application

is dismissed. Rule is discharged.

15. At this stage, learned Advocate for the applicant submitted that stay

granted by this Court vide order dated 23072021 be extended.