Uttarakhand High Court
BA1/2387/2021 on 3 March, 2022
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BAI No. 2387 of 2021
Hon'ble N.S. Dhanik, J .
Mr. Ramji Srivastava, learned
counsel for the applicant.
Mr. V.S. Rathore, learned A.G.A. for
the State.
Mr. Pawan Mishra, learned counsel
for the complainant.
Heard learned counsel for the
parties.
Applicant- Gaurav R. Bharti, who is
in jail in connection with Case Crime No.
86 of 2021 for the offence punishable
under Sections 376 and 323 IPC
registered at P.S. Vasant Vihar, District
Dehradun.
Learned counsel for the applicant
submits that the applicant has falsely
been implicated in the present case; that
he is languishing in jail since
18.08.2021; and that he has no criminal
history in his credit. He further submits
that the complainant/victim is major and
their relationship was developed on her
consent, therefore, Section 375 of IPC is
not made out against the present
applicant. He also submits that the
applicant is a disciplined Officer in Indian
Navy. Furthermore, it is also submitted
by learned counsel for the applicant that
the applicant made a complaint against
the complainant regarding the threats
extended by her to the applicant before
DIG Police, Dehradun and after having
come to know about the said complaint,
in counter blast thereto, the complainant
lodged the FIR dated 12.05.2021.
Learned counsel for the applicant
placed reliance on the judgment of
Hon'ble Apex Court in the case of Sonu
@ Subhash Kumar vs. State of Uttar
Pradesh and another reported in 2021
SCC Online SC 181 and in the case of
Maheshwar Tigga vs. State of
Jharkhand reported in (2020) 10 SCC
108.
Learned State Counsel as well
learned counsel for the complainant
vehemently opposed the bail application
contending that the applicant was
seriously involved in the crime and has
committed a serious offence. It is also
submitted that despite being a married
person, the applicant is habitual in
making matrimonial profiles wherein he
has shown himself as "never married". It
is also submitted that when the applicant
was already married, there was no
reason for him to approach the
complainant on the pretext of promise of
marriage and in these circumstances,
Section 90 IPC will come into play as,
admittedly, the consent, if any, was
obtained by the applicant on
misconception of facts that he is an
unmarried person and, therefore, the
consent of complainant is not a free
consent and a clear prima facie case
under Sections 376 and 323 IPC is
made out against the applicant.
Furthermore, there are specific and
serious allegations against the present
applicant, which proves the involvement
of the present applicant in the instant
crime. He would further submit that the
allegations leveled against the applicant
shows a serious nature of offence being
committed by him and, therefore, his
bail application is liable to be rejected.
He further argued that the law laid down
by Hon'ble Supreme Court in the
aforesaid cases, as mentioned by learned
counsel for the applicant, does not apply
in the present matter as the instant case
is not a case of false promise of
marriage, instead, it is a case where
consent of complainant is obtained by
misconception of facts by the applicant
as he has shown himself being 'never
married', whereas, admittedly he was a
married person.
This Court finds force in the
arguments advanced by the learned
counsel for the complainant as well as
learned counsel for the State.
Considering the facts and
circumstances of the case and also
considering the fact that the case law
upon which the learned counsel for the
applicant placed reliance, is not
applicable in the present case, therefore,
I am of the view that there is no ground
for grant of bail at this stage. Hence, the
first bail application is rejected
(N.S. Dhanik, J.)
03.03.2022
SB
