Dr. Umesh Mourya vs The State Of Madhya Pradesh
2022 Latest Caselaw 3064 MP

                                                                        1
                                       IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
                                                                    BEFORE
                                                   HON'BLE SHRI JUSTICE RAJEEV KUMAR DUBEY
                                                              ON THE 4th OF MARCH, 2022

                                                    MISC. CRIMINAL CASE No. 10278 of 2022

                                            Between:-
                                            DR. UMESH MOURYA S/O RAMKAVEL MORYA,
                                            AGED ABOUT 32 YEARS, OCCUPATION: DOCTOR
                                            R/O WARD NO 2 JAWARLAL NEHARU WARD
                                            RAHATGARH, DISTRICT SAGAR (M.P.)

                                                                                                       .....APPLICANT
                                            (SHRI JAFAR KHAN, LEARNED COUNSEL FOR THE APPLICANT )

                                            AND

                                            THE STATE OF MADHYA PRADESH THROUGH
                                            POLICE STATION GOPALGANG DISTRICT SAGAR
                                            (MADHYA PRADESH)

                                                                                                     .....RESPONDENT
                                             SHRI DILIP KUMAR SHRIVASTAVA, LEARNED G.A. FOR THE
                                            RESPONDENT / STATE.

                                            SHRI M.P. TRIPATHI, LEARNED COUNSEL FOR THE OBJECTOR.

                                         This M.Cr.C. coming on for M.Cr.C. this day, the court passed the
                                   following:
                                                                         ORDER

Heard with the aid of case diary.

This is the first application under Section 438 of the Cr.P.C. for grant of anticipatory bail. Applicant Dr. Umesh Mourya apprehends his arrest in connection with Crime No.79/2022 registered at Police Station Gopalganj, District Sagar (MP) for the offence punishable under Section 376(2)(n) of IPC.

As per the prosecution case in the year 2016 prosecutrix came in contact with the applicant and thereafter on 21, March 2017 for the first time applicant made sexual relation with the prosecutrix on the pretext of marriage and he sexually exploited her on the pretext of marriage up to March 2021, thereafter he denied to marry her. The applicant earlier told the prosecutrix that when he would get the job, then he would marry her. After that when he got the job, the applicant refused to marry the prosecutrix.

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Learned counsel for the applicant submitted that the applicant has not Digitally signed by NAVEEN KUMAR SARATHE Date: 2022.03.05 15:33:25 IST committed any offence and has falsely been implicated in the offence. The

applicant is a Doctor. He 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 this regard, learned counsel for the applicant has placed reliance upon the judgments of Hon'ble Apex Court passed in

Dr. Dhruvram Murlidhar Sonar Vs. State of Maharashtra and Ors . , AIR 2019, SC 327, and Pramod Suryabhan Pawar Vs. The State of Maharashtra and Ors., 2019 (11) SCAlE 2009.

Learned counsel for the State as well as learned counsel for the objector opposed the prayer and submitted that the applicant sexually exploited the prosecutrix on the pretext of marriage and thereafter he dined to marry her, so he should not be released on anticipatory bail.

The facts of the cases Dr. Dhruvaram Murlidhar Sonar vs. State of Maharashtra & Ors. (Supra) and Pramod Suryabhan Pawar Vs. The State of Maharashtra and Ors. (supra ) as relied upon by the learned counsel of the applicant do not match with the present case. In the first case, it was alleged that the applicant made sexual relations with the prosecutrix after informing him that he is a married man. In the second 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, it is not the defence of the applicant that despite denying to marry the prosecutrix, he and the prosecutrix continued to engage in sexual intercourse, so above mentioned judgments do not help the applicant.

Even in the case of Pramod Suryabhan Pawar (supra) Hon'ble 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 Signature Not Verified SAN assurance by the accused that he would marry her, such consent can be said Digitally signed by NAVEEN KUMAR SARATHE to be a consent obtained on a misconception of fact as per Section 90 of the Date: 2022.03.05 15:33:25 IST

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."

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 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. 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 "€œthe consent taken by the accused with the clear intention not to fulfill 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​ From the above judgments of the 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

Signature Not Verified do so. Such cases must be treated differently. But in such cases where the SAN

Digitally signed by NAVEEN KUMAR intention of the accused was mala fide and that he had clandestine motives and SARATHE Date: 2022.03.05 15:33:25 IST

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. Thereafter he denied to marry her without any cause, 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 sarathe

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Digitally signed by NAVEEN KUMAR SARATHE Date: 2022.03.05 15:33:25 IST