Gujarat High Court
Arvindbhai Vaktabhai Chaudhary vs State Of Gujarat on 29 January, 2024
NEUTRAL CITATION
R/CR.A/2496/2023 ORDER DATED: 29/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (REGULAR BAIL - AFTER CHARGESHEET) NO.
2496 of 2023
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ARVINDBHAI VAKTABHAI CHAUDHARY
Versus
STATE OF GUJARAT
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Appearance:
MR PADMRAJ K JADEJA(2095) for the Appellant(s) No. 1
MR TARUN H RAWAT(13044) for the Opponent(s)/Respondent(s) No. 2
MR HK PATEL, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 29/01/2024
ORAL ORDER
1. By way of the present appeal under Section 14-A of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act, 1989 (for short, the 'Act, 1989'), the appellant - original
accused has prayed to release him on regular bail in connection
with FIR being C.R.No.11191008230427 of 2023 registered with
Chandkheda Police Station, Gandhinagar.
2. Learned advocate for the appellant submits that the
appellant is behind bar since 28.08.2023. Investigation in the
present case is complete. Charge-sheet is filed and therefore, all
the evidence are lying with Investigating Officer and Court.
Therefore, question of tempering with the evidence does not
appear. Reading of FIR, he would submit that it is case of false
promise. It is submitted that relationship entered between the
appellant and victim are clear consent. Both are major and they
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knew each other since they were serving together. Thus, it is
clear case of consensual relationship. It is further submitted that
FIR does not disclose any words which indicates that victim was
humiliated for her caste. Thus, prima facie, no case under
Atrocities Act is made out. It is therefore, submitted to grant bail
to the appellant.
3. Learned advocate for the first informant submitted that
repeated physical relationship has been maintained by the
appellant under false promise of marriage. It is submitted that
appellant was knowing that his child marriage took place and yet
he has maintained relationship with the victim knowing fully
well that he could not marry her. It is case of obtaining consent
under false promise of marriage. Taking this Court through
order passed by learned Sessions Court, learned advocate for the
first informant would submit that even learned Trial Judge has
recorded that the appellant is not available as he is changing his
job. There is flight risk and therefore, the appellant may not be
granted bail as it would derail entire trial proceedings. On such
submissions, it is submitted to dismiss the appeal.
4. Joining submissions and adopting submission of learned
advocate for the first informant, learned Additional Public
Prosecutor appearing on behalf of the respondent-State would
submit that it is clear case of giving false promise of marriage
and it was intention to have physical relationship with the victim
and therefore, the appellant may not be granted bail.
5. Having heard the learned Advocates for the respective
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parties, let refer to the judgment of the Hon'ble Apex Court in the
case of Pramod Suryabhan v/s. State of Maharashtra [2019 (9)
SCC 608 and in para 17 and 18 it is held as under :-
"17. In Uday v State of Karnataka the complainant was a college going
student when the accused promised to marry her. In the complainant's
statement, she admitted that she was aware that there would be
significant opposition from both the complainant's and accused's
families to the proposed marriage. She engaged in sexual intercourse
with the accused but nonetheless kept the relationship secret from her
family. The court observed that in these circumstances the accused's
promise to marry the complainant was not of immediate relevance to the
complainant's decision to engage in sexual intercourse with the
accused, which was motivated by other factors:
"25. There is yet another difficulty which faces the prosecution in
this case. In a case of this nature two conditions must be fulfilled
for the application of Section 90 IPC. Firstly, it must be shown
that the consent was given under a misconception of fact.
Secondly, it must be proved that the person who obtained the
consent knew, or had reason to believe that the consent was
given in consequence of such misconception. We have serious
doubts that the promise to marry induced the prosecutrix to
consent to having sexual intercourse with the appellant. She
knew, as we have observed earlier, that her marriage with the
appellant was difficult on account of caste considerations. The
proposal was bound to meet with stiff opposition from members
of both families. There was therefore a distinct possibility, of
which she was clearly conscious, that the marriage may not take
place at all despite the promise of the appellant. The question
still remains whether even if it were so, the appellant knew, or
had reason to believe, that the prosecutrix had consented to
having sexual intercourse with him only as a consequence of her
belief, based on his promise, that they will get married in due
course. There is hardly any evidence to prove this fact. On the
contrary, the circumstances of the case tend to support the
conclusion that the appellant had reason to believe that the
consent given by the prosecutrix was the result of their deep love
for each other. It is not disputed that they were deeply in love.
They met often, and it does appear that the prosecutrix permitted
him liberties which, if at all, are permitted only to a person with
whom one is in deep love. It is also not without significance that
the prosecutrix stealthily went out with the appellant to a lonely
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place at 12 o'clock in the night. It usually happens in such cases,
when two young persons are madly in love, that they promise to
each other several times that come what may, they will get
married..." (Emphasis supplied)
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."
6. Recently, in the case of Naim Ahamed v/s. State (NCT of
Delhi) [2023-Scale (2) 283], the Hon'ble Apex Court in para 11,
19,20,21,22 and 26 has held as under :-
"11. It cannot be gainsaid that a consent given by a person
would not be a consent as intended by any Section of the
Indian Penal Code, if such consent was given by the person
under the fear of injury, or under a misconception of fact
as contemplated in Section 90 IPC. Further, Section 375
also describes certain acts which if committed by the
accused under the circumstances mentioned therein, as
the commission of 'Rape', even though committed with the
consent of the prosecutrix. In our opinion, the expression
"misconception of fact" contained in Section 90 IPC is also
required to be appreciated in the light of the Clauses -
contained in Section 375 IPC, more particularly the
Clauses - Thirdly, Fourthly and Fifthly thereof, when the
accused is charged for the offence of 'rape'. The
circumstances described in the said three Clauses are
wider than the expression "misconception of fact", as
contemplated in Section 90 of IPC. Section 375 describes
seven circumstances under which the 'rape' could be said
to have been committed. As per the Clause - Thirdly, a
rape could be said to have been committed, even with her
consent, when the consent of the prosecutrix is obtained
by putting her or any person in whom she is interested in
fear of death or of hurt. As per the Clause - Fourthly, with
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her consent, when the man knows that he is not her
husband and that her consent is given because she
believes that he is another man to whom she is or believes
herself to be lawfully married; and as per the Clause -
Fifthly, with her consent when at the time of giving the
consent, the prosecutrix by reason of unsoundness of
mind or intoxication or the administration of stupefying or
unwholesome substance by the accused or through
another, she is unable to understand the nature and
consequences of that to which she gives consent. Thus,
apart from the prosecutrix being under the misconception
of fact as contemplated in Section 90, her consent would
be treated as 'no consent' if she had given her consent
under any of the circumstances mentioned in Section 375
of IPC.
19. After duly examining the record in the light of the
submissions made by the learned counsels for the parties,
following facts have emerged: - (i) Prosecutrix was a
married woman having three children. (ii) Accused was
staying in a tenanted premises situated in front of the
house of the prosecutrix. (iii) Though initially hesitant, the
prosecutrix developed liking for the accused, and both
started having sexual relationship with each other. (iv) The
prosecutrix delivered a male child on 28/10/2011 from the
loin of the accused. (v) The prosecutrix went to the native
place of the accused in 2012 and came to know that he
was a married man having children. (vi) The prosecutrix
still continued to live with the accused in separate
premises. (vii) The prosecutrix and her husband took
divorce by mutual consent in 2014 and thereafter
prosecutrix permanently left her three children with her
husband. (viii) The prosecutrix lodged the complaint on
21st March, 2015 alleging that she had consented for
sexual relationship with the accused as the accused had
promised her to marry and subsequently did not marry.
20. The bone of contention raised on behalf of the
respondents is that the prosecutrix had given her consent
for sexual relationship under the misconception of fact, as
the accused had given a false promise to marry her and
subsequently he did not marry, and therefore such consent
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was no consent in the eye of law and the case fell under
the Clause - Secondly of Section 375 IPC. In this regard, it
is pertinent to note that there is a difference between giving
a false promise and committing breach of promise by the
accused. In case of false promise, the accused right from
the beginning would not have any intention to marry the
prosecutrix and would have cheated or deceited the
prosecutrix by giving a false promise to marry her only
with a view to satisfy his lust, whereas in case of breach of
promise, one cannot deny a possibility that the accused
might have given a promise with all seriousness to marry
her, and subsequently might have encountered certain
circumstances unforeseen by him or the circumstances
beyond his control, which prevented him to fulfill his
promise. So, it would be a folly to treat each breach of
promise to marry as a false promise and to prosecute a
person for the offence under Section 376. As stated earlier,
each case would depend upon its proved facts before the
court.
21. In the instant case, the prosecutrix who herself was a
married woman having three children, could not be said to
have acted under the alleged false promise given by the
appellant or under the misconception of fact while giving
the consent to have sexual relationship with the appellant.
Undisputedly, she continued to have such relationship
with him at least for about five years till she gave
complaint in the year 2015. Even if the allegations made
by her in her deposition before the court, are taken on
their face value, then also to construe such allegations as
'rape' by the appellant, would be stretching the case too
far. The prosecutrix being a married woman and the
mother of three children was matured and intelligent
enough to understand the significance and the
consequences of the moral or immoral quality of act she
was consenting to. Even otherwise, if her entire conduct
during the course of such relationship with the accused, is
closely seen, it appears that she had betrayed her husband
and three children by having relationship with the
accused, for whom she had developed liking for him. She
had gone to stay with him during the subsistence of her
marriage with her husband, to live a better life with the
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accused. Till the time she was impregnated by the accused
in the year 2011, and she gave birth to a male child
through the loin of the accused, she did not have any
complaint against the accused of he having given false
promise to marry her or having cheated her. She also
visited the native place of the accused in the year 2012 and
came to know that he was a married man having children
also, still she continued to live with the accused at another
premises without any grievance. She even obtained divorce
from her husband by mutual consent in 2014, leaving her
three children with her husband. It was only in the year
2015 when some disputes must have taken place between
them, that she filed the present complaint. The accused in
his further statement recorded under Section 313 of
Cr.P.C. had stated that she had filed the complaint as he
refused to fulfill her demand to pay her huge amount.
Thus, having regard to the facts and circumstances of the
case, it could not be said by any stretch of imagination
that the prosecutrix had given her consent for the sexual
relationship with the appellant under the misconception of
fact, so as to hold the appellant guilty of having committed
rape within the meaning of Section 375 of IPC.
22. In that view of the matter, the accused deserves to be
acquitted from the charges levelled against him. Of course,
the direction for payment of compensation given by the
courts below shall remain unchanged as the appellant had
accepted the responsibility of the child, and has also paid
the amount of compensation to the prosecutrix.
26. For the reasons stated above, the impugned judgments
and orders passed by the High Court and the Sessions
Court are set aside, except the direction for the payment of
compensation to the prosecutrix. The appellant-accused is
acquitted from the charges levelled against him and is
directed to be set free forthwith. The appeal stands allowed
accordingly."
7. In background of above settled provision of law, if we
examine facts of the case, it comes on record that even after
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knowing that the appellant is married person and child marriage
took place, victim continued her relationship with the appellant.
Prima facie, it indicates that it was consensual relationship.
Prima facie, there is no there is no false promise of marriage and
the appellant has not given promise in any bad faith to obtain
consent. FIR indicates that multiple times victim entered into
physical relationship with the appellant ever after knowing that
first wife of appellant has "Aannu" on 10.05.2023. Both
appellant and victim are major. Moreover, investigation is
complete. Charge is filed. The appellant is behind bar since
28.08.2023. Prima facie, FIR does not disclose that words are
spoken to humiliate victim on her caste. All these facts are
sufficient to enlarge the appellant on bail.
8. In the result, the present appeal is allowed. The appellant
is ordered to be released on bail in connection with FIR
registered as C.R.No.11191008230427 of 2023 registered with
Chandkheda Police Station, Gandhinagar on executing bond of
Rs.10,000/- (Rupees Ten Thousand only) with one surety of like
amount to the satisfaction of the Trial Court and subject to the
conditions that the appellant shall:-
[a] not take undue advantage of liberty or misuse liberty;
[b] not act in a manner injurious to the interest of the
prosecution;
[c] not leave the territory of India without prior
permission of the Sessions Judge concerned;
[d] appear before the Investigation Officer concerned, as
and when required for investigation purpose and
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attend Court concerned regularly.
[e] furnish the present address of residence along with
the proof to the I.O. concerned and also to the Court
at the time of execution of the bond and shall not
change the residence without prior permission of
Sessions Court concerned;
[f] not enter Gandhinagar and Banaskantha Districts for
six months except for the purpose of attending Court
proceedings and marking presence before the
concerned Police Station.
9. The competent authority will release the appellant 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 Sessions Judge concerned will be free to take
appropriate action in the matter. Bail bond to be executed before
the lower court having jurisdiction to try the case. It will be open
to the concerned Court to delete, modify or relax any of the
above conditions in accordance with law. At the trial, the trial
court shall not be influenced by the observations of preliminary
nature, qua the evidence at this stage, made by this Court while
enlarging the appellant on bail.
10. The appeal succeeds. Direct service is permitted.
(J. C. DOSHI,J)
SATISH
