Rohit Tiwari vs The State Of Madhya Pradesh
2021 Latest Caselaw 8584 MP

                                                                        1                               MCRC-41105-2021
                                          The High Court Of Madhya Pradesh
                                                  MCRC No. 41105 of 2021
                                                        (ROHIT TIWARI Vs THE STATE OF MADHYA PRADESH)


                                  Jabalpur, Dated : 10-12-2021
                                        Shri Anil Khare, Sr. Counsel with Shri Suyash Thakur, counsel for the

                                  applicant.
                                        Shri Devendra Kumar Shukla, P.L. for the respondent/State.

Shri Ajay Mishra, Sr. Counsel with Shri Vivek Tiwari, counsel for the complainant.

Case diary perused.

This is the first application under Section 438 of the Cr.P.C. for grant of anticipatory bail. Applicant Rohit Tiwari apprehends his arrest in connection with Crime No.297/2021 registered at Police Station Nauraujabaad, Distt. Umaria (MP) for the offence punishable under Sections 376 and 376(2)(n) of the IPC.

As per the prosecution case, on 18/07/2021 prosecutrix lodged a written report at Police Station Nauraujabad, Distt. Umaria averring that she is a resident of Nauraujabad. In the month of September 2017, when she was

posted as Counselor at Aisect Prime Minister Skill Centre, Umaria, she came in contact with the applicant, who had come there to give a motivational speech. After that they started meeting and talking with each other. On 17/11/2018 applicant came to her house at Nauraujabad when she was alone and made sexual relations with her on the pretext of marriage. Thereafter, the second time applicant made sexual relations with her at his house at Shahdol, third time at his friend’s room at Annuppur and last time on 05/02/2020 at Indore.

Learned counsel for the applicant submits that the applicant has not committed any offence and has falsely been implicated in the offence. The prosecutrix was major. It is alleged that applicant made sexual relations with the prosecutrix for the first time on 17/11/2018, while on this date applicant was in training, so the allegation of the prosecutrix that the applicant made Signature Not Verified SAN

Digitally signed by ANURAG SONI Date: 2021.12.13 17:50:09 IST 2 MCRC-41105-2021 sexual relations with her on 17/11/2018 becomes false. He further submitted that earlier also the prosecutrix had lodged a report at Police Station, Nauraujabaad against him. On that, police called him and under the pressure of the police and the prosecutrix, a compromise was recorded. At that time also he had said that if his family agreed then he would marry the prosecutrix

and even the said compromise was signed by the applicant under the pressure of the police and prosecutrix. Soon after that he stopped talking to the prosecutrix and had also given a letter to the Station In-Charge, Umaria to the effect that the said compromise was signed by him under the pressure of the police and prosecutrix. Since the applicant's family was not ready for the relationship, he did not marry prosecutrix, so only on this basis that the applicant had physical relations on the basis of the promise of marriage with the prosecutrix, it cannot be said that the applicant had no intention of marrying the prosecutrix from the very beginning and hence no offence under Section 376 is made out against the applicant. The applicant is ready to cooperate in the investigation and trial. In the event of arrest, his reputation will be ruined. Under these circumstances, the applicant prays for grant of anticipatory bail. In support of his contention, learned counsel also placed reliance on the judgment passed by Hon'ble Apex Court passed in the case of Pramod Suryabhan Pawar vs. State of Maharashtra and Another reported in (2019) 9 SCC 608.

Learned counsel for the State as well as complainant opposed the prayer and submitted that the applicant made sexual relations with the prosecutrix on the pretext of marriage and refused to marry her later. Even earlier when the prosecutrix had lodged report, the applicant entered into a compromise with the prosecutrix and promised to marry her after a year, but married another girl later, which clearly shows that the applicant made sexual relation with the prosecutrix on the basis of false promise. Therefore, the offence under Section 376 is clearly made out against the applicant. So he

Signature Not Verified should not be released on anticipatory bail.

SAN

Digitally signed by ANURAG SONI Date: 2021.12.13 17:50:09 IST 3 MCRC-41105-2021 The facts of the case of Pramod Suryabhan Pawar (supra) relied upon by learned counsel for the applicant do not match with the present case. In that case, the complainant was aware that there existed obstacles to marrying the appellant since 2008. The applicant/accused expressed his reservations about marrying the complainant on 31 January 2014. Despite this, the appellant and the complainant continued to engage in sexual intercourse until March 2015. While in this case, the applicant and prosecutrix belonged to the same caste. It is not the defence of the appellant that despite denying to marry the prosecutrix, he and the prosecutrix continued to engage in sexual intercourse, so that judgment does not help the applicant. Even in that judgment, Apex Court held as under :

"€œ37. 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 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 of the 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 of the IPC and can be convicted for the offence under Section 376 of the IPC."€Â​ In the case of Deepak Gulati vs. State of Haryana (2013)7 SCC 675 Hon'ble Apex Court held "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

Signature Not Verified SAN misrepresentation made to her by the accused, or where an accused on

Digitally signed by ANURAG SONI Date: 2021.12.13 17:50:09 IST 4 MCRC-41105-2021 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. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives"

In the case of State Of U.P vs Naushad (2013) 16 SCC 651 Hon'ble Apex Court also held “the consent taken by the accused with the clear intention not to fulfil the promise and persuaded the girl to believe that he is going to marry her and obtained her consent for sexual intercourse under the total misconception, cannot be treated to be a consent.â€Â​ From the above judgments of Hon'ble Apex Court the position that emerges on the point whether consensual sex on the promise of marriage can be called rape or not is that 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. But in such cases where the intention of the accused was mala fide and that he had clandestine motives and where the accused had mala fide intention right from the inception and that he had made such false promise of marriage from the very beginning, in order to lure the victim to have sexual relations with him, such acts come under the preview of rape.

In this case, it is alleged that the applicant made sexual relations with the prosecutrix on the pretext of marriage. On 11/06/2020 when the prosecutrix lodged a report at Women Police Station, Umaria, the applicant again promised that he would convince his family members and would marry the prosecutrix within one year, but the applicant married another woman within 6 months even without informing the prosecutrix. However, the applicant also took a plea that he had signed the settlement deed under the Signature Not Verified SAN

Digitally signed by ANURAG SONI Date: 2021.12.13 17:50:09 IST 5 MCRC-41105-2021 pressure of police and prosecutrix.The applicant had also written a letter to the Station In-Charge Norojabad informing that he had signed the settlement deed under pressure, but the said settlement was done on 16/06/2020, while the applicant has written a letter to this effect on 17/10/2020. If the settlement was signed by the applicant under pressure, why was the letter to this effect was not sent by him to the Station In-Charge of Umaria as soon as he was out of the clutches of the police. He married another girl without waiting for a year, and without informing the prosecutrix, which raises doubts on the bonafide intention of the promise given by the applicant to the prosecutrix. So, looking to the facts and circumstances of the case and the allegation, this Court is not inclined to grant anticipatory bail to the applicant.

Accordingly, M.Cr.C. is rejected.

(RAJEEV KUMAR DUBEY) JUDGE

m/as

Signature Not Verified SAN

Digitally signed by ANURAG SONI Date: 2021.12.13 17:50:09 IST