Tripura High Court

Shri Supradip Das vs The State Of Tripura on 23 February, 2022

                     HIGH COURT OF TRIPURA
                           AGARTALA
                              A.B. No. 13 of 2022

Shri Supradip Das
son of Sri Pabitra Das, resident of Khudiram Palli
no.2, Amarpur, South Tripura, P.S- Birganjh,
District-Gomati, Tripura
                                                      ............... Petitioner(s).
                                       Vs.

The State of Tripura
Represented by Ld. P. P, High Court Tripura.
                                                    ............... Respondent(s).

For Petitioner(s)         :       Mr. S. Lodh, Advocate.

For Respondent(s)         :       Mr. S. Ghosh, Addl. Public Prosecutor.

           HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY
                                      ORDER

23/02/2022

Heard Mr. Sankar Lodh, learned counsel appearing for the

petitioner as well as Mr. S. Ghosh, learned Addl. Public Prosecutor

representing the State.

[2] Petitioner is an accused in Birganj P.S Case

No.2022/BRG/002 which has been registered for commission of offence

punishable under Sections 376, 313, 506, 509, 323 read with Section

34 IPC. Apprehending arrest in the case, petitioner has filed this

application under Section 438 Cr.P.C for granting pre-arrest bail to

him.

[3] The case was registered on the basis of the written FIR

lodged by the victim of this case wherein she alleged that the accused

is a neighbour of her. Father of the accused had a very good

relationship with her father and the family members of the accused

including the accused used to visit their house regularly. The accused

and the victim thus developed an intimacy. On 15.09.2021 accused

came to her house and gossiped with her over a long period of time.

The other house inmates were away from home at that time. Taking

the opportunity, accused committed rape on her. When she divulged

the incidence to her guardians, they called the parents of the accused.

Father of the accused in a village meeting assured that his son would

marry the victim and she was requested not to file any case against

him. Their relationship became normal thereafter. On 16.11.2021

when the victim met the accused in his house, he wanted to have

physical relationship with her and despite her resistance she was

subjected to sexual intercourse by the accused. Accused blackmailed

her by saying that he captured all photographs of their past physical

relationship in his mobile and in case of her refusal to have physical

relationship with him he would make the pictures viral in social media.

She informed the father of the accused about the occurrence who

advised her to accept everything without protest. Few days thereafter

she conceived, when she told the petitioner about her pregnancy, he

assured her that he would marry her as soon as he gets an

employment. He gave some tablets to the victim. The victim

miscarried after taking those tablets. After her miscarriage, accused

again started blackmailing her. Then she lodged a written complaint in

the Court of the Sub-Divisional Judicial Magistrate at Amarpur. Her

complaint was forwarded to the Officer-in-Charge of Birganj police

station at Amarpur for investigation and report on the basis of which

case was registered and investigation was taken up. Apprehending

arrest, accused has approached this Court for pre-arrest bail under

Section 438 Cr. P. C.

[4] Appearing for the petitioner, Mr. Lodh, learned counsel

contends that victim was at her consenting age at the time of

occurrence and her complaint would demonstrate that it was a

consented relationship between the parties. Counsel submitted that it

would appear from her complaint that she continued to have

relationship with the accused over a quite long period of time. She

never lodged any complaint to police. After about four months from

the alleged date of occurrence, she lodged a complaint in the Court of

the Sub-Divisional Judicial Magistrate, Amarpur bringing false and

unfounded allegations against the accused petitioner with an ulterior

motive. Counsel contended that the allegations made in the complaint,

even if they are taken at their face value and accepted in their entirety

would not prima facie constitute a charge of rape against the petitioner

because the victim was admittedly at her consenting age and as per

her version she lived in a relationship with the accused for about four

months prior to filing of her complaint. Counsel contends that in her

complaint the petitioner has clearly stated that after the first incidence

on 15.09.2021 accused promised to marry her. Therefore, she cannot

take the plea that her consent was vitiated because she was induced

by the accused to consent to the relationship by false promise of

marriage. To buttress his contention, counsel has relied on the decision

of the Apex Court in Pramod Suryabhan Pawar Vrs. State of

Maharashtra and another; reported in AIR 2019 SC 4010 wherein

the Apex Court has deliberated in paragraph-18 of the judgment as to

how consent of a woman with respect to Section 375 IPC can be said

to be vitiated by a misconception of fact arising out of a promise to

marry and observed as under:

"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."

[5] Counsel contends that in the present case, the victim who

is admittedly 20 years old has stated in her complaint that on

15.09.2021 the accused for the first time got engaged in sexual act

with her and admittedly, there was no promise of marriage at that

time. Therefore, her consent in this case cannot be said to have been

vitiated by misconception of fact arising out of promise to marry. To

establish his contention counsel has also relied on the decision dated

09.12.2021 of this High Court in Shri Priyangan Saha Vrs. The

State of Tripura [Crl. A(J) No. 36 of 2020] wherein this Court relying

on the decision of the Hon'ble Apex Court in Pramod Suryabhan

Pawar(supra) observed that consent as contemplated under Section

375 IPC cannot be said to have been vitiated by misconception of fact

arising out of promise to marry unless such promise bears a direct

nexus to the woman's decision to engage in the sexual act. Having

contended thus counsel of the petitioner has urged the Court to allow

pre-arrest bail to the petitioner.

[6] Mr. S. Ghosh, learned Addl. Public Prosecutor vehemently

opposes the bail application contending that the victim belongs to poor

strata of society who was sexually ravished by the accused to gratify

his lust. The poor victim was allured with the promise of marriage by

the petitioner to obtain her consent for physical relationship.

Ultimately, he refused to marry her and continuously blackmailed her

by saying that he would circulate the pictures of their physical

relationship captured by him in his cell phone in social media in case of

her refusal to have sexual intercourse with him. Counsel submits that

investigation is in progress and evidence is forthcoming. In these

circumstances, pre-arrest bail of the accused would obstruct a free and

fair investigation of the case.

[7] Perused the record including the case diary. Considered the

submissions of learned counsel made at the Bar. It is true that court

enjoys discretionary power with regard to grant of bail under Section

438 Cr. P.C. But the Apex Court in Nathu Singh Vrs. State of Uttar

Pradesh and Others; reported in (2021) 2 SCC (Cri) 757 has held

that such discretionary power cannot be exercised in an untrammeled

manner. Observation of the Court is as under:

"24. However, such discretionary power cannot be exercised in an untrammeled manner. The Court must take into account the statutory scheme under Section 438, Cr.P.C., particularly, the proviso to Section 438(1), Cr.P.C., and balance the concerns of the investigating agency, complainant and the society at large with the concerns/interest of the applicant. ******"

[8] In the present case, obviously the victim has brought

serious charges against the accused. She has categorically stated that

accused being a neighbour of her had access to her home and on the

material date when the house inmates were away from home on work,

he went there and despite her resistance he committed sexual

intercourse on her. He even video graphed the pictures of their

relationship in his mobile phone and later started blackmailing her. On

several occasions thereafter he obtained her consent to have sexual

intercourse with him saying that the pictures would be circulated in

case of her refusal to engage in sexual act with him. The facts and

circumstances appearing from her complaint clearly indicate that even

though she was at her consenting age, she was subjected to sexual