Madhya Pradesh High Court
Rohit Tiwari vs The State Of Madhya Pradesh on 14 March, 2022
Author: Rajeev Kumar Dubey
1
IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAJEEV KUMAR DUBEY
ON THE 14th OF MARCH, 2022
MISC. CRIMINAL CASE No. 1225 of 2022
Between:-
ROHIT TIWARI S/O SHATRUGHAN TIWARI, AGED
ABOUT 30 YEARS, OCCUPATION: PATWARI RIDHI
COLONY, TEH.SITAMAU, P.S. SITAMAU DISTRICT
MANDSAUR (MADHYA PRADESH)
.....APPLICANT
(BY SHRI ANIL KHARE, LEARNED SENIOR COUNSEL WITH SHRI
ROHAN HARNE, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH
S.H.O.P.S. NAUROJABAD, DISTRICT UMARIA,
(MADHYA PRADESH)
.....RESPONDENT
(BY SHRI ATMARAM BEN, DY. GOVERNMENT ADVOCATE)
(SHRI VIVEK TIWARI, COUNSEL FOR THE OBJECTOR)
This M.Cr.C. coming on for admission this day, the court passed the
following:
ORDER
Case diary perused.
This is the second 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.
The earlier bail application filed by the applicant was dismissed on merit by
this Court vide order dated 10/12/2021 passed in M.Cr.C.No.41105/2021.
A s 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
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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 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. Learned counsel further submitted that though
earlier bail application filed by the applicant was dismissed on merit by this Court
on the ground that the settlement deed was done on 16/06/2020, while applicant
has written a letter to Police on 17/10/2020 to the effect that he signed the
settlement deed under the pressure of Police and prosecutrix, while applicant sent
that letter to Police on 17/08/2020 and he also filed copy of letter as Annexure A-9.
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
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for grant of anticipatory bail. In support of his contention, learned counsel also
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placed reliance on the judgment passed by Hon'ble Apex Court passed in the case
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of Pramod Suryabhan Pawar Vs. State of Maharashtra & Another, (2019) 9
SCC 608 and Maheshwar Tigga Vs. State of Jharkhand, (2020) 10 SCC
Learned counsel for the State as well as objector 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. The earlier bail application filed by the applicant
was dismissed on merit, thereafter there is no change in circumstance. The
applicant is still absconding. The custodial interrogation of the applicant is
required, so he should not be released on anticipatory bail.
The facts of the cases upon which reliance is placed by the learned counsel
for the applicant do not match with the present case. In the case of Pramod
Suryabhan Pawar (supra) 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.
Similarly, in the case of Maheshwar Tigga (supra) Hon'ble Apex Court at the
stage of judgment after evaluating all the prosecution evidence held that the
prosecution failed to prove his case against the applicant, while in this case the trial
has not been started as yet. So both the judgments do not help the applicant. Even
in the case of Pramod Suryabhan Pawar (supra), Hon'ble Apex Court held as
under :
"37. 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
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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."
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 that "the 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."
F ro m 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
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accused on account of circumstances which he could not have foreseen, or which
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were beyond his control, was unable to marry her, despite having every intention to
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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.
The earlier bail application filed by the applicant was dismissed on merit by
this Court vide order dated 10/12/2021 passed in M.Cr.C.No.41105/2021,
thereafter there is no change in circumstance.. The applicant is still absconding.
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 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
as
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