Danish @ Danish Alam Khan vs The State Of Bihar
2023 Latest Caselaw 4485 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
              CRIMINAL MISCELLANEOUS No.9003 of 2023
    Arising Out of PS. Case No.-61 Year-2022 Thana- SHASTRINAGAR District- Patna
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Danish @ Danish Alam Khan (Male) aged about 32 years, Son of Mohammad Azhar Imam @ Sona Khan R/o Opposite Purani Msjid, Samanpura, Raja Bazar, B.V. College, P.S.- Shastri Nagar, District- Patna.

... ... Petitioner Versus The State of Bihar

... ... Opposite Party ====================================================== Appearance :

For the Petitioner/s : Mr. Ansul, Advocate Mr. Anuj Kumar, Advocate For the State : Mr. Uma Shankar Prasad Singh, APP For the Infomant : Mr. Ashish Giri, Advocate Ms. Riya Giri, Advocate Mr. Sumit Kumar Jha, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA CAV JUDGMENT Date : 11-09-2023

Heard learned counsel for the petitioner, learned

Counsel for informant and learned APP for State.

2. The petitioner seeks bail in anticipation of his arrest

in shastri Nagar P.S. Case No. 61 of 2022 registered for the

offences punishable under Section 341, 342, 323, 354, 354-A,

504, 506/34 of the Indian Penal Code and later on, section 376

and 493 of the 1.P.C. was also added vide order dated

07.12.2022.

3. The petitioner and the informant were friends. After

some time, the petitioner established physical relation with the

informant on the pretext of marriage but when she asked to Patna High Court CR. MISC. No.9003 of 2023 dt.11-09-2023

solemnize the marriage, the petitioner denied. After sometime

the petitioner alongwith his three friends kidnapped her and kept

her in the house where sister and mother of petitioner assaulted

and abused her and torn her clothes, made nude video of her.

4. Learned counsel for the petitioner has submitted

that petitioner is innocent and has falsely been implicated in the

instant concocted and manufactured case on account of ulterior

motive of black mailing the petitioner who is an MBA and

drawing a handsome salary, while working as Area Manager in

HP Company. Further, the petitioner denied that he had entered

into a physical relation with informant on pretext of marriage.

Learned counsel for the petitioner has submitted that even if the

entire prosecution case is admitted, for the sake of argument, the

case seems to be of consensual sex between two adults which is

not a crime. The informant is an adult educated, woman who

was well aware of the facts and circumstances and Section 375

of I.P.C. is not applicable in consensual sex. The informant has

improved her version. He referred the Judgment of Hon'ble

Supreme Court in Pramod Suryabhan Pawar Vs. State of

Maharastra and Anr. (2019) 9 SCC 608; Sonu @ Subhash

kumar Vs. State of Uttar Pradesh and Anr. (2021) SCC

online SC 181 wherein the Hon'ble Supreme Court quashed the Patna High Court CR. MISC. No.9003 of 2023 dt.11-09-2023

F.I.R. where the parties were involved in sexual relations on the

basis of promise to marry which was later on not work out. It is

further submitted that petitioner is ready to abide by the

conditions laid down under Section 438 (2) of Cr.P.C.

5. Per contra, learned counsel for informant and

learned APP for the state have vehemently opposed the

anticipatory bail of the petitioner and have submitted that there

is direct allegation against the petitioner of committing rape on

informant which is serious in nature. The petitioner had given

promise to informant which at the inception was false and on

that basis he induced the informant in a sexual relationship with

him. The petitioner has also kidnapped and made nude video of

the informant. Learned counsel for the informant has submitted

that petitioner even during the pendency of this application,

threaten the informant and making pressure on her for which she

has filed complaint before the court concern. Further, he has

submitted that the law is well settled that while deciding an

application for bail, the Court ought to refrain from undertaking

a detailed analysis of the evidence and the focus shall be on the

prima facie issues. It is further submitted that there is sufficient

prima facie material in the F.I.R. to have made out serious

offences including offence under Section 376 I.P.C. Patna High Court CR. MISC. No.9003 of 2023 dt.11-09-2023

6. It is further submitted that this Court vide order

dated 22.03.2023 passed in Criminal Miscellaneous No. 18301

of 2023 filed on behalf of Co-accused persons observed that

from reading of the F.I.R., it appears that prima facie case is

made out against the petitioners. An offence is punishable under

Section 376 of the I.P.C. if the offence of rape is established in

terms of Section 375 which sets out the ingredients of the

offence. In the present case, the second description of Section

375 alongwith Section 90 of the I.P.C. is relevant which deals

with consent.

7. Section 114-A of the Indian Evidence Act, 1872 is

also relevant which deals certain prosecution as to absence of

consent in certain prosecution for rape. A reading of the said

section makes it clear that where sexual inter course by the

accused is proved and the question is whether it was without the

consent of the woman alleged to have been raped, and such

woman states in her evidence before the Court that she did not

consent, the Court shall presume that she did not consent.

8. In Pramod Suryabhan Pawar Vs. State of

Maharastra & Anr. (2019) 9 SCC 608, the Hon'ble Supreme

Court observed: " To summarise the legal position that emerges

from the above cases, the "consent" of a woman with respect to Patna High Court CR. MISC. No.9003 of 2023 dt.11-09-2023

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 sexual act."

9. The Hon'ble Supreme Court in Sonu @ Subhash

Kumar vs. State of Uttar Pradesh 2021 SCC Online SC 181

observed that in context of a promise to marry 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.

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 'misconception of fact' that vitiate 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 Patna High Court CR. MISC. No.9003 of 2023 dt.11-09-2023

of upholding his word at the time of giving it.

10. It appears from the F.I.R, that there is direct

allegation against the petitioner that he has established physical

relation with the informant on the promise to marry with her, but

later on denied the same without any reason and also assaulted,

kidnapped and made video. The allegation in F.I.R. has been

corroborated by her in her confessional statement under Section

164 Cr.P.C. Further, allegation is that the petitioner is still

harassing the informant.

11. Considering the aforesaid facts and circumstances,

this Court is not inclined to grant anticipatory bail to the

petitioner and the application is, accordingly, dismissed.

(Sunil Dutta Mishra, J)

shweta/-

AFR/NAFR                NAFR
CAV DATE                06.09.2023
Uploading Date          11.09.2023
Transmission Date