Rajesh Ramesh Maru vs State Of Gujarat
2022 Latest Caselaw 5353 Guj

     R/CR.MA/11004/2022                                      ORDER DATED: 22/06/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 11004 of 2022

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                              RAJESH RAMESH MARU
                                     Versus
                               STATE OF GUJARAT
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Appearance:
MR MAULIN G PANDYA(3999) for the Applicant(s) No. 1
MR JK SHAH, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
                  Date : 22/06/2022
                   ORAL ORDER

1. Heard learned advocate Mr.Maulin G. Pandya on behalf

of the applicant and learned Additional Public Prosecutor

Mr.J.K. Shah on behalf of the respondent - State.

2. By way of this application under Section 438 of the Code

of Criminal Procedure, 1973 (hereinafter referred to as "the

Cr.P.C." for short) , the applicant prays for being released on

anticipatory bail in connection with FIR

No.11993006220374 of 2022 registered with "A" Division

Gandhidham Police Station, Dist.: Kutch, dated

26.04.2022 for the offences punishable under Sections 376(2)

(n) and 506(2) of the Indian Penal Code (hereinafter referred to

as "the IPC" for short).

3. The first informant inter alia alleges in the FIR that while

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she was residing in Railway Colony, Gandhidham, somewhere

in the year 2014, present applicant is stated to have forcibly

raped the first informant. It is also alleged that the first

informant, after the said incident, was threatened by present

applicant, and wheres it is further alleged that thereafter,

present applicant used to regularly visit the house of the first

informant and had professed love for the first informant and

had also given a promise to the first informant that he would

marry her and under the pretext of such a promise, the

applicant had entered into physical relationship with the first

informant. It is alleged that approximately a month prior to

the FIR, the applicant had informed the first informant that he

would not be able to marry the first informant more

particularly, his marriage is fixed with some other person. The

first informant is stated to have asked the applicant that why

did the applicant destroy 10 years of her life. It is further

alleged that on 09.04.2022, when mother of the first informant

had gone out of station, the applicant had, once-again, come

to the residence of the first informant and had again,

professed his love for the first informant and he wanted to

engage in physical relationship which was refused by the first

informant, whereupon present applicant had allegedly

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promised to marry the first informant, within a period of ten

days. It is further alleged that present applicant had also

submitted an affidavit to the first informant dated 16.04.2022,

wherein the applicant had promised to marry the first

informant, within 20 days. It is alleged that on strength of

such affidavit, present applicant had engaged in physical

relationship with the first informant. Subsequently, the

applicant not having fulfilled the promise of marrying the first

informant, on the basis of above allegations, an FIR had been

registered.

4. Learned advocate Mr.Pandya on behalf of the applicant

would submit that the FIR is not stating correct facts more

particularly, according to learned advocate, at the first

instance, the first informant alleges that the applicant had

forcibly raped her, and thereafter, the first informant alleges

that present applicant had professed his love for the first

informant and had promised for marriage on the basis of

which, the first informant had agreed to have physical

relationship with present applicant. Learned dvocate would

submit that both the aspects of forcible rape and engaging in

physical relation on basis of false promise are self-

contradictory. Learned advocate would further submit that the

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length of the relationship between the applicant and the first

informant would show that the first informant was very clear

about the fact that the relationship would not culminate into

her marriage yet the first informant continued the

relationship. Learned advocate would further submit that facts

would not show that the first informant had engaged in the

relationship, on account of false promise, rather it was on

account of the relationship between the parties and love and

affection with which the first informant had towards present

applicant that she had voluntarily agreed to have physical

relationship with present applicant. Learned advocate would

further submit that when the incident, as alleged in the FIR,

had happened in the year 2014, the informant was 24 years

old, and whereas at the time of filing of the FIR, the first

informant is 31 years old. Learned advocate would submit

that the informant is a mature person, highly educated,

having a diploma in civil engineering, and whereas she had,

understanding the consequences of her action, engaged in

physical relationship, and whereas since the first informant

did not like the fact that the applicant was going to marry to

somebody else, the first informant had filed present FIR.

Learned advocate would further submit that having regard to

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the said fact, this Court may grant anticipatory bail to the

present applicant.

5. As against the same, learned APP for the respondent -

State has objected to grant of this application. Learned APP

would submit that the very so-called haphazard nature of the

FIR, as alleged by present applicant, would go to show that

the FIR had not been filed after deliberation or the FIR was not

a pre-planned FIR. Learned APP would further submit that as

it is the first informant has alleged that on the first occasion,

present applicant had forcibly raped the informant, and

whereas later on, present applicant had established a

relationship with the first informant, on the pretext of false

promise that he would marry the first informant. Learned APP

would further submit that very fact of such a long relationship

between the parties of approximately eight years, would go to

show that the parties were having relationship, and whereas

the first informant, though aged around 31 years, was

agreeabnle to continue the relationship only on account of the

fact that the applicant had promised marriage. Learned APP,

in these facts and circumstances, would request this Court to

look into the heinous nature of the offence and therefore,

protection is not required to be granted to present applicant.

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6. Heard learned advocates for the respective parties, who

have not submitted anything more.

7. Having perused the allegations made in the FIR and

considered the submissions made by learned advocates, this

Court is of the prima facie opinion that the very fact of parties

having a relationship for approximately 8 years, would lead to

prima facie inference that the parties were undoubtedly in

relationship, and whereas the basis of such relationship,

appears to be the promise, given by the applicant to the first

informant that he would marry the first informant. The first

informant very specifically alleges in the FIR that on the first

occasion, when the first informant had been raped, present

applicant had threatened the first informant, and whereas on

account of such threat, the first informant did not inform such

incident to anybody. It appears that thereafter, present

applicant had again entered into the house of the first

informant, and thereafter, the applicant, having professed love

for the first informant, had promised to marry present first

informant, and whereas the first informant on the basis of

such a promise had agreed to have physical relationship with

present applicant. It also appears that while on account of the

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threat, the first informant initially did not inform anyone

about the rape, later on, the applicant had professed his love

and promised to marry the first informant, which to this Court

does not reflect any contradictory stand.

8. It also appears that the proximate cause as mentioned in

the FIR for filing of the FIR is the fact that the applicant, who

was having relationship with the first informant for

approximately 8 years, had informed the first informant that

he would not be able to marry the first informant since his

marriage was fixed with somebody else. It also appears that

even after such information was given to present first

informant, the applicant is stated to have again approached

the first informant and had again promised marriage to the

first informant, and whereas though there is a reference to an

affidavit by the first informant, since it is alleged that such

affidavit was taken under coercion, this Court does not

express any opinion upon the same. Be that as it may, prima

facie the applicant has given a false promise of marriage and

later on, the applicant has not fulfilled such promise which

appears to be the clear and proximate cause for filing of the

FIR.

R/CR.MA/11004/2022 ORDER DATED: 22/06/2022

9. At this stage, this Court seeks to rely upon a decision of

the Hon'ble Apex Court in case of Pramod Suryabhan Pawar

Vs. State of Maharashtra and others reported in AIR 2019

SC 4010, Paragraph Nos.16, 21 and 24 of the said judgment

be relevant for the present case and are reproduced

hereinbelow:

"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:

"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

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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." (Emphasis supplied)

"21. 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 intention to deceive her. The appellant's failure in 2016 to fulfil his promise made in 2008 cannot be construed to mean the promise itself was false. The allegations in the FIR indicate that

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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 occurred.

24. For the above reasons, we allow the appeal and set aside the impugned judgement and order of the High Court dated 7-2-2019. The FIR dated 17-5-2016 is quashed.'"

10. While it appears that the decision of the Hon'ble Apex

Court was in context of a petition for quashing of an FIR

under Section 482 of the Cr.P.C., at the same time, in the

considered opinion of this Court, the observations of the

Hon'ble Apex Court, being relevant for the purpose, have been

relied upon. The law laid by the Hon'ble Apex Court in

paragraphs quoted hereinabove, being that there has to be a

distinction between a mere breach of promise and not fulfilling

a false promise, and whereas the Court must examine whether

there was, at an early stage, a false promise of marriage by the

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accused, and whereas whether the consent was given by the

prosecutrix only on account of such false promise or on

account of love and passion for the accused, wholly

understanding the nature and consequence of the sexual

indulgence. The Hon'ble Apex Court has also observed that a

case where the accused owing to various unavoidable

circumstances may not be able to keep his promise of

marriage with the victim, has to be treated differently than the

case where the accused had no intention of marriage with the

victim. From the facts as could be gathered from the FIR, it

clearly appears that while the accused had, on the first

occasion, allegedly forcefully rapped the victim, later on, the

accused had professed his love for the first informant i.e. the

victim, and whereas the accused-applicant had promised to

marry the first informant and it is on basis of such promise

that the first informant had agreed to have sexual relation

with the applicant. It also appears that, at the relevant point

of time, there was no love affair between the parties, whereby

it could be contended that the first informant, out of her love

for the applicant, had agreed to have the sexual relationship

with the applicant. It also appears that the applicant, having

engaged in sexual relationship with the first informant for

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approximately eight years, had refused to fulfill his promise,

and whereas even in the application, the present applicant

has not made out any case about his not being able to marry

the first informant for unavoidable reasons, more particularly,

the applicant trying his best to marry the first informant.

11. It further appears that while the applicant had informed

the first informant that he would not be able to marry the first

informant since his marriage is fixed with another girl, and

whereas even thereafter, the applicant had, again, promised

that he will marry the first informant, within ten days since he

is not able to live without her and again holding out such a

false promise, the applicant had entered into sexual

relationship with the first informant.

12. In the considered opinion of this Court, at the stage of

grant of anticipatory bail, primary consideration which should

weigh with this Court is that whether a prima facie case is

made out against the accused of having possibly committed

the crime, which is alleged, and whereas, it clearly appears

that the applicant has not denied the fact that he had the

relationship with the first informant, and whereas the only

contention being that the sexual relationship was consensual

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and not on account of a false promise. In any case, it appears

to this Court that the fact of the parties remaining in a

relationship for around eight years, is also material, which

would go against the applicant since it appears from the FIR

that the first informant had continued with the relationship

only on account of the fact that she was under reasonable, but

mistaken impression that the applicant would marry her.

13. This Court has also considered the law laid down by the

Hon'ble Apex Court in case of Siddharam Satlingappa

Mhetre Vs. State of Maharashtra and others reported in

2011(1) SCC 694, more particularly, Paragraph-112 thereof,

whereby the Hon'ble Apex Court has inter alia laid down the

parameters, which should be taken into consideration, at the

stage of deciding an application for anticipatory bail. Having

regard to the parameters, it appears that the allegation

against the accused being of committing a grave offence, and

whereas the offence, punishable with minimum imprisonment

of ten years and which may extend to life, and whereas while

there is no antecedent of the applicant being involved in such

an offence, and whereas while there may not be any possibility

of the applicant trying to flee from justice more particularly,

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since the applicant, being employed in the railways, and

whereas having regard to the nature of offence, there may not

be any likelihood of the applicant repeating such offence, at

the same time, it also does not appear to this Court that

accusations have been levelled with the object of injuring or

humiliating the applicant, and whereas grant of anticipatory

bail, while it may not directly affect a very large number of

persons, but at the same time, it also requires to be

appreciated that a wrong message also would be sent out to

the society, as regards a person engaging in a relationship for

eight years by giving a false promise and having sexual

relationship with the girl under the pretext of such false

promise, being released without being arrested by the police.

14. Having regard to the same, in the considered opinion of

this Court, present applicant would not be entitled to any

discretionary relief from this Court. In the result, present

application fails and the same is hereby rejected.

(NIKHIL S. KARIEL,J) rakesh/