Himachal Pradesh High Court

Reserved On: 23.09.2024 vs State Of Himachal Pradesh on 4 October, 2024

2024:HHC:9559

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. MP(M) No. 2130 of 2024 Reserved on: 23.09.2024 Date of Decision: 04.10.2024

Arun Kumar Sharma ....Petitioner Versus State of Himachal Pradesh ....Respondent Coram Hon'ble Mr Justice Rakesh Kainthla, Judge.

Whether approved for reporting? No.

For the Petitioner : Mr. Kunal Thakur, Advocate.

For the Respondent : Mr. Prashant Sen, Deputy Advocate General for the respondent/State.

Rakesh Kainthla, Judge The petitioner has filed the present petition for seeking

pre-arrest bail. It has been asserted that the petitioner was arrested

vide F.I.R. No. 41 of 2024, dated 13.09.2024, registered for the

commission of an offence punishable under Section 64 of Bharatiya

Whether reporters of the local papers may be allowed to see the judgment? Yes

Nyaya Sanhita (BNS) (Section 376(2)(n) of IPC) at Women Police

Station Solan, District Solan, H.P. It has been asserted that petitioner

is innocent and he was falsely implicated. He runs his own business.

He is the only one in the house to look after the family. He would

abide by all the terms and conditions, which the Court may impose.

Hence, the present petition.

2. The petition is opposed by filing a status report asserting

that the victim made a complaint to the police stating that she had

obtained a divorce from her husband six years before the incident.

She came in contact with the petitioner and fell in love with him. The

petitioner and victim wanted to marry each other. They were residing

together in a live-in relationship. They had physical relations with

each other during this period. The victim asked the petitioner to

marry her but he put off the matter on one pretext or the other. The

victim became pregnant. She asked the petitioner to marry her but he

persuaded her to abort the fetus. He also abused, beat and threatened

the victim. He was not picking up the victim's call. The police

registered the F.I.R. and conducted the investigation. The victim was

medically examined. The petitioner has absconded. The police

searched for him but could not trace him. Hence, the status report.

3. I have heard Mr. Kunal Thakur, learned counsel for the

petitioner and Mr. Prashant Sharma, learned Deputy Advocate General

for the respondent/State.

4. Mr. Kunal Thakur, learned counsel for the petitioner

submitted that the petitioner is innocent and he was falsely

implicated. The relationship between the petitioner and the victim

was consensual. The victim was married and aware of her welfare. Her

plea that the petitioner had entered into physical relations with her on

the pretext of marriage is not acceptable as she would be aware of the

consequence of entering into a physical relationship. Therefore, he

prayed that the present petition be allowed and the petitioner be

released on bail.

5. Mr. Prashant Sen, learned Deputy Advocate General for the

respondent/State submitted that the petitioner had entered into a

physical relationship with the victim on the pretext of marriage.

When she asked the petitioner to marry her, he abused and beat her.

The petitioner has committed a heinous offence. He prayed that the

present petition be dismissed.

6. I have given considerable thought to the submissions made

at the bar and have gone through the records carefully.

7. It was laid down by the Hon'ble Supreme Court in P.

Chidambaram v. Directorate of Enforcement, (2019) 9 SCC 24: (2019) 3

SCC (Cri) 509: 2019 SCC OnLine SC 1143 that the power of pre-arrest bail

is extraordinary and should be exercised sparingly. It was observed:

"69. Ordinarily, arrest is a part of the procedure of the investigation to secure not only the presence of the accused but several other purposes. Power under Section 438 Cr.P.C. is an extraordinary power and the same has to be exercised sparingly. The privilege of pre-arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; the possibility of the applicant fleeing justice and other factors to decide whether it is a fit case for grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the court must be circumspect while exercising such power for the grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of rule and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy."

8. This position was reiterated in Srikant Upadhyay v. State of

Bihar, 2024 SCC OnLine SC 282 wherein it was held:

"25. We have already held that the power to grant anticipatory bail is extraordinary. Though in many cases it was held that bail is said to be a rule, it cannot, by any stretch of the imagination, be said that anticipatory bail is the rule. It cannot be the rule and the question of its grant should be left to the cautious and judicious discretion of the Court depending on the facts and circumstances of each case. While called upon to exercise the said power, the Court concerned has to be very cautious as the grant of interim protection or protection to the accused in serious cases may lead to a miscarriage of justice and may hamper the investigation to a great extent as it may sometimes lead to tampering or distraction of the evidence. We shall not be understood to have held that the

Court shall not pass interim protection pending consideration of such application as the Section is destined to safeguard the freedom of an individual against unwarranted arrest and we say that such orders shall be passed in eminently fit cases."

9. It was held in Pratibha Manchanda v. State of Haryana,

(2023) 8 SCC 181: 2023 SCC OnLine SC 785 that the Courts should

balance individual rights, public interest and fair investigation while

considering an application for pre-arrest bail. It was observed:

"21. The relief of anticipatory bail is aimed at safeguarding individual rights. While it serves as a crucial tool to prevent the misuse of the power of arrest and protects innocent individuals from harassment, it also presents challenges in maintaining a delicate balance between individual rights and the interests of justice. The tightrope we must walk lies in striking a balance between safeguarding individual rights and protecting public interest. While the right to liberty and presumption of innocence are vital, the court must also consider the gravity of the offence, the impact on society, and the need for a fair and free investigation. The court's discretion in weighing these interests in the facts and circumstances of each case becomes crucial to ensure a just outcome."

10. The allegations in the F.I.R. show that the petitioner and

victim resided together in a live-in relationship for about two years.

The petitioner promised to marry the victim but subsequently, he

refused to honour his promise. When the victim asked the petitioner

to marry her, he abused, beat and threatened her. He and his relatives

asked the victim to leave the petitioner by accepting some money. All

these allegations, prima facie, show that the petitioner had no

intention to marry the victim right from the beginning. It was laid

down in Suryabhan Pawar v. State of Maharashtra, (2019) 9 SCC 608:

2019 SCC OnLine SC 1073 that where the accused entered into sexual

relations with the victim after making her a promise to marry her,

which promise he never intended to keep, he is guilty of rape. It was

observed:

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 [Anurag Soni v. State of Chhattisgarh, (2019) 13 SCC 1: 2019 SCC OnLine SC 509], 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 consent can be said to be a consent obtained on a misconception of fact as per Section 90 IPC and, in such a case, such consent would not excuse the offender and such an offender can be said to have committed the rape as defined under Sections 375 IPC and can be convicted for the offence under Section 376 IPC."

Similar observations were made by this Court in Deepak Gulati v. State of Haryana [Deepak Gulati v. State of Haryana, (2013) 7 SCC 675 : (2013) 3 SCC (Cri) 660] (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;"

15. In Yedla Srinivasa Rao v. State of A.P. [Yedla Srinivasa Rao v. State of A.P., (2006) 11 SCC 615: (2007) 1 SCC (Cri) 557] the accused forcibly established sexual relations with the complainant. When she asked the accused why he had spoiled her life, he promised to marry her. On this premise, the accused repeatedly had sexual intercourse with the complainant. When the complainant became pregnant, the accused refused to marry her. When the matter was brought to the panchayat, the accused admitted to having had sexual intercourse with the complainant but subsequently absconded. Given this factual background, the Court observed:

(SCC pp. 620-21, para 10)

"10. It appears that the intention of the accused as per the testimony of PW 1 was, right from the beginning, not honest and he kept on promising that he would marry her, till she became pregnant. This kind of consent obtained by the accused cannot be said to be any consent because she was under a misconception of the fact that the accused intended to marry her, therefore, she had submitted to sexual intercourse with him. This fact is also admitted by the accused that he had committed sexual intercourse which is apparent from the testimony of PWs 1, 2 and 3 and before the panchayat of elders of the village. It is more than clear that the accused made a false promise that he would marry her.

Therefore, the intention of the accused right from the beginning was not bona fide and the poor girl submitted to the lust of the accused, completely being misled by the accused who held out the promise of marriage. This kind of consent taken by the accused with the clear intention not to fulfil the promise and persuading the girl to believe that he is going to marry her and obtain her consent for the sexual intercourse under a total misconception, cannot be treated to be a consent."

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 grounds of a "misconception of fact" where such misconception was the basis for her choosing to engage in the said act. In Deepak Gulati [Deepak Gulati v. State of Haryana, (2013) 7 SCC 675 : (2013) 3 SCC (Cri) 660] this Court observed : (SCC pp. 682-84, 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, [Ed. : The matter between two asterisks has been emphasised in the original.] unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her [Ed. : The matter between two asterisks has been emphasised in original.] ."

(emphasis supplied)

17. In Uday v. State of Karnataka [Uday v. State of Karnataka, (2003) 4 SCC 46: 2003 SCC (Cri) 775] 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 the 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 : (SCC p. 58, para 25)

"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 would 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 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.

11. It was submitted that the relationship between the parties

was consensual. This submission is not acceptable. It was laid down by

the Hon'ble Supreme Court in Yedla Srinivasa Rao v. State of A.P. (2006)

11 SCC 615, that in view of Section 114-A when the victim says that she

had not consented, the Court has to presume the absence of the

consent. It was observed: -

"15. In this connection, reference may be made to the amendment made in the Evidence Act. Section 114-A was introduced and the presumption has been raised as to the absence of consent in certain prosecutions for rape. Section 114-A reads as under:

"114-A. Presumption as to the absence of consent in certain prosecutions for rape.-In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub-section (2) of Section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the court that she did not consent, the court shall presume that she did not consent."

16. If sexual intercourse has been committed by the accused and if it is proved that it was without the consent of the prosecutrix and she states in her evidence before the court that she did not consent, the court shall presume that she did not consent. The presumption has been introduced by the legislature in the Evidence Act looking to atrocities committed against women and in the instant case as per the statement of PW 1, she resisted and she did not give consent to the accused at the first instance and he committed the rape on her. The accused gave her assurance that he would marry her and continued to satisfy his lust till she became pregnant and it became clear that the accused did not wish to marry her."

12. This judgment was followed in Anurag Soni Vs State of

Chhattisgarh, 2019 (13) SCC 1. Therefore, in view of the binding

precedent of the Hon'ble Supreme Court, the Court cannot infer

consent, when the victim stated that she had not consented to the

sexual intercourse.

13. The investigation is at the initial stage. As per the status

report the petitioner has absconded. The police made various efforts

to trace the petitioner but could not succeed. It was laid down by the

Hon'ble Supreme Court in State of Orissa Versus Mahimanand Mishra

(2018) 10 SCC 516 that while considering a bail application, the court

should also look at the possibility of the appearance of the accused to

face trial. When the accused had absconded and was arrested after a

lookout circular was issued, he was not entitled to bail.

14. There is a force in the submission of Mr. Prashant Sen,

learned Deputy Advocate General that the offence committed by the

petitioner is heinous. It was laid down by Hon'ble Supreme Court in

Ms X versus State of Maharashtra and another, 2023 STPL 3386 SC,

[2023(2) Crimes 66 (SC)] that pre-arrest bail should not be granted to a

person accused of committing an offence punishable under Section

376 of IPC. It was observed:

"22. Surprisingly, none of the aforesaid aspects have been touched upon in both the impugned orders. The nature and gravity of the alleged offence have been disregarded. So has the financial stature, position and standing of the accused vis-a-vis the appellant/prosecutrix been ignored. The High Court has granted anticipatory bail in favour of the respondent No. 2/accused in a brief order of three paragraphs, having been swayed by the 'star variations in the narration of the prosecutrix' implying thereby

that what was originally recorded in the FIR, did not make out an offence of rape, as defined in Section 375 IPC, which is an erroneous assumption. Even if the first Supplementary statement of the appellant/prosecutrix recorded in the evening hours of 6th August 2022, the date on which the FIR had been registered against the respondent No.2/accused in the first half of the same day, her second Supplementary statement recorded on 6th September 2022 and the Medico-Legal Report of the doctor who had examined the appellant/prosecutrix on 8th August 2022, are kept aside for a moment, we find that there was still sufficient material in the FIR that would prima facie attract the provision of Section 376, IPC. In our opinion, these factors ought to have dissuaded the High Court from exercising its discretion in favour of respondent No.2/accused for granting him anticipatory bail.

15. Keeping in view the nature of the allegation against the

petitioner, the conduct of the petitioner and the stage of the

investigation, the present petition cannot be allowed.

16. Consequently, the present petition fails and the same is

dismissed.

17. The observations made hereinbefore shall remain confined

to the disposal of the petition and will have no bearing, whatsoever,

on the merits of the case.

(Rakesh Kainthla) Judge

04th October, 2024 (ravinder)

DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH

KARAN SINGH COURT OF HIMACHAL PRADESH SHIMLA, Phone=e5d61f6599be410af7c5f0b57379e225878f23c9ea27b281046985b 3b1fe0b75, PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER=f72cf9165791d55ec939375291962d0d90d094876bd59

GULERIA 591426c0b1ce651f01f, CN=KARAN SINGH GULERIA Reason: I am the author of this document Location: