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2013 DIGILAW 252 (HP)

Tarun Chaudhary v. State of Himachal Pradesh

2013-04-05

SANJAY KAROL

body2013
JUDGMENT Sanjay Karol, J. (Oral) On 28.1.2013, prosecutrix lodged a written complainton the basis of which FIR No. 19 dated 28.1.2013 was registered by the police at Police Station Sadar, District Shimla, under the provisions of Section 376, Indian Penal Code. 2. As per the compliant, petitioner and the prosecutrix used to study in a school at Shimla till the year 1999-2000. Thereafter they lost contact with each other. In 2007, petitioner contacted the prosecutrix on her Mobile. Thereafter, till the year 2010, petitioner regularly maintained contact with her on her Mobile. Prosecutrix and petitioner would freely talk on the Mobile. In the year 2011, petitioner met her at Shimla Public School, Shimla where she was teaching. Thereafter, both she and the petitioner kept on meeting at various places in Shimla. During this period, he proposed marriage, to which she agreed. She informed her parents, who in turn contacted his parents. For a period of two- three months petitioner’s parents did not respond, despite the fact that petitioner was ready and willing to perform the marriage. Petitioner also expressed his such desire to his parents. When father of the petitioner did not respond, her parents contacted parents of the petitioner on telephone. At that time, her parents were assured that petitioner’s father would visit Shimla and discuss the matter. However, such meeting could not fructify. Her father tried to contact the petitioner’s father at Dharamshala, but on some pretext no meeting was held. Thereafter, petitioner proposed to the prosecutrix to solemnize their marriage through Court. He also asked the prosecutrix to leave her job, which she did. But petitioner did not contact her at Shimla for solemnizing the marriage nor did he visit Shimla. Prosecutrix fell quite ill and went into depression and became bed ridden. Thereafter when her father contacted petitioner’s father, he asked her parents to visit Baijnath for further talks. When her parents visited Baijnath, it was agreed between the parents of the petitioner and the prosecutrix that marriage would be solemnized. In October, 2012, petitioner’s mother fixed the date of marriage as 2nd May, 2013. But, however, on the day of KARVA CHOUTH talks of marriage were completely broken on the pretext that prosecutrix had changed her mind and that her parents wanted to get her married somewhere else. Since then neither the petitioner nor his parents have responded to any of the telephone calls. But, however, on the day of KARVA CHOUTH talks of marriage were completely broken on the pretext that prosecutrix had changed her mind and that her parents wanted to get her married somewhere else. Since then neither the petitioner nor his parents have responded to any of the telephone calls. Also they have not discussed the issue of marriage. Under the guise of solemnizing the marriage, petitioner without the consent of the prosecutrix, forcibly developed physical relationship with her. This was so done in a house of a petitioner’s friend at U.S. Club, Shimla. 3. To the aforesaid effect, police recorded statement of the prosecutrix under Section 154, Cr.P.C. However, during the course of investigation, police again recorded her statement under Section 161, Cr.P.C. in which she disclosed that petitioner had physical relationship with her on two occasions i.e. April, 2011 and October, 2011 at two different places in Shimla. When prosecutrix resisted the advances of the petitioner, he told her that there is nothing wrong in it and these days this is the done thing and in any event, their marriage is to be solemnized in near future. 4.Petitioner, who is 28 years of age, is a permanent resident of Baijnath, District Kangra, H.P. but works for gain as a Design Engineer in Frames Process and Energy, Pune (Maharashtra). 5.Apprehending arrest, petitioner filed the instant petition under Section 438, Cr.P.C. seeking grant of pre-arrest bail. 6.The matter came up for hearing before the Court on 25.2.2013 and the Court granted the petitioner interim bail subject to certain terms and conditions, including petitioner’s joining investigation as and when called for by the Investigating officer. Thereafter, the matter was listed on 4.3.2013, 13.3.2013, 20.3.2013, 3.4.2013 and 4.4.2013 and the interim orders are still in operation. 7.It is not in dispute that petitioner has joined investigation as and when called for by the police. 8.In support of the petition, Mr. Satyen Vaidya, learned counsel for the petitioner, has invited my attention to the undated letters written by the prosecutrix, in her own hand, to the petitioner; Short Message System (SMS) messages sent by her from her Cell Phone to the petitioner from July, 2012 till January 2013, and the complaints dated 29.12.2012 and 31.12.2012 written to the Chairman, Women Commission, Himachal Pradesh, Shimla by the parents of the prosecutrix. Orally it is urged that talks of marriage failed for the reason totally unconnected with the petitioner or his parents. Petitioner is innocent, has fully cooperated and is not to leave the country. His parents permanently reside in Baijnath, H.P. Reliance is also placed on the decision of the Apex Court in Siddharam Satlingappa Mhetre vs. State of Maharashtra and others, (2011) 1 SCC 694 . 9.The application is opposed by Shri Verma, learned Addl. Advocate General on the ground that there is apprehension that petitioner may influence the witnesses by intimidating them. Also there is apprehension that the petitioner may flee as he is working at Pune and leave the country to avoid trial. Custodial interrogation is required as petitioner has yet not come out with the truth during investigation. 10.Mr Bimal Gupta, learned counsel, who was allowed to assist the Court on behalf of the complainant, while supporting the submissions made on behalf of the State, has strongly contended that the petitioner had sexual intercourse with the prosecutrix without intending to solemnize the marriage. As such, he is guilty of rape and it cannot be said that prosecutrix had consented for the sexual acts. It is also urged that as per the status report, petitioner remained unavailable and had absconded for a period of one month. Still further, it is urged that petitioner handed over his mobile to the police only on 19.3.2013, after deleting the messages he had sent to the prosecutrix. 11.He has also referred to and relied upon the decision of the Apex court in Pradeep Kumar vs. State of Bihar, (2007) 7 SCC 413 , as also the High Court of Delhi in Bail Application No. 1745 of 2009, decided on 1.2.2010, titled as Nikhil Parasar vs. The State Govt. NCT of Delhi. 12.The Apex Court in Siddharam Satlingappa Mhetre (supra), while relying upon its decision rendered by its Constitution Bench in Gurbaksh Singh Sibbia vs. State of Punjab, (1980) 2 SCC 565 , laid down the following parameters for grant of pre-arrest bail:- “111. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualized for the grant or refusal of anticipatory bail. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualized for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia’s case (supra) that the High Court or the Court of Sessions to exercise their jurisdiction under section 438 Cr.P.C. by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour. 112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: (i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; (iii) The possibility of the applicant to flee from justice; (iv) The possibility of the accused’s likelihood to repeat similar or the other offences. (v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her. (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. (vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. (vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; (ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. 113. Arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record. 114. These are some of the factors which should be taken into consideration while deciding the anticipatory bail applications. These factors are by no means exhaustive but they are only illustrative in nature because it is difficult to clearly visualize all situations and circumstances in which a person may pray for anticipatory bail. If a wise discretion is exercised by the Judge concerned, after consideration of entire material on record then most of the grievances in favour of grant of or refusal of bail will be taken care of. The legislature in its wisdom has entrusted the power to exercise this jurisdiction only to the judges of the superior courts. If a wise discretion is exercised by the Judge concerned, after consideration of entire material on record then most of the grievances in favour of grant of or refusal of bail will be taken care of. The legislature in its wisdom has entrusted the power to exercise this jurisdiction only to the judges of the superior courts. In consonance with the legislative intention we should accept the fact that the discretion would be properly exercised. In any event, the option of approaching the superior court against the court of Sessions or the High Court is always available.”(Emphasis supplied) 13.Mr. Gupta has relied upon Pradeep Kumar (supra) only to show as to how the Apex Court has construed the definition of word ‘consent’. The Court was dealing with the case where the accused after promising marriage first had physical relationship with the prosecutrix and then married her, but later on denied the factum of both the physical relationship and the marriage. Prosecutrix was forced to lodge a complaint with the police and FIR under Sections 376 and 406, IPC was registered. The accused moved the High Court for cancellation of the FIR, which was rejected. Thereafter, when trial Court framed the charges, he unsuccessfully assailed the order before the High Court. The accused took the matter to the Supreme Court and there the Court after considering its earlier decisions in Uday vs. State of Karnataka, (2003) 4 SCC 46 and Deelip Singh alias Dilip Kumar vs. State of Bihar, (2005) 1 SCC 88 , while reiterating the principles of ‘consent’ under the Penal Code, dismissed the petition leaving the trial Court to consider as to whether any consent for sexual intercourse was there on the part of the wife or not. 14.Significantly, in Uday (supra), the Apex Court has held as under:- 21. It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no strait jacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the Courts provide at best guidance to the judicial mind while considering a question of consent, but the Court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them. 15.Further in Deelip Singh (supra), the Court has held that promise to marry without anything more will not give rise to ‘misconception of fact’ within the meaning of Section 90. It clarified that a representation deliberately made by the accused with a view to elicit consent of the victim without having the intention or inclination to marry her, will vitiate the consent. If on the facts, it is established that at the very inception of making of the promise, accused did not really entertain the intention of marrying the prosecutrix and the promise to marry held out by him was mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the rigors of the Penal laws. The interpretation of term ‘consent, as per the observations made by the Court, with reference to special Section 90, IPC, is to be seen in the factual backdrop of the case. In this backdrop the Court posed the following question for consideration in such like cases:- “30. Is it a case of passive submission in the face of psychological pressure exerted or allurements made by the accused or was it a conscious decision on the part of the prosecutrix knowing fully the nature and consequences of the act she was asked to indulge in? Is it a case of passive submission in the face of psychological pressure exerted or allurements made by the accused or was it a conscious decision on the part of the prosecutrix knowing fully the nature and consequences of the act she was asked to indulge in? Whether the tacit consent given by the prosecutrix was the result of a misconception created in her mind as to the intention of the accused to marry her? These are the questions which have to be answered on an analysis of the evidence. The last question raises the allied question, whether the promise to marry, if made by the accused, was false to his knowledge and belief from the very inception and it was never intended to be acted upon by him. As pointed out by this Court in Uday case the burden is on the prosecution to prove that there was absence of consent. Of course, the position is different if the case is covered by Section 114-A of the Evidence Act. Consent or absence of it could be gathered from the attendant circumstances. The previous or contemporaneous acts or the subsequent conduct can be legitimate guides.” 16.It is in this backdrop one has to see the factual matrix of the instant case. 17.Now in the instant case, perusal of the record produced by the prosecution as also the petitioner reveals that prior to 28.1.2013 at no point of time did either the prosecutrix or her parents allege any act of physical relationship between her and the petitioner. 18.Perusal of the letters placed on record by the petitioner, which are in the handwriting of the prosecutrix, would only reveal that she is in great love with the petitioner. But there is reference of a third person in her life at some point in time. Now whether this was the cause for the marriage not being solemnized or not is the question to be considered and decided after trial. I need not go more into details about the contents of the letters. 19.Perusal of the messages (SMSs) would also show that the prosecutrix is in great love with the petitioner. Even here, she has neither disclosed nor made any grievance about the factum of physical relationship. Significantly, this fact is also not so recorded in the complaint filed before the Women Commission. 19.Perusal of the messages (SMSs) would also show that the prosecutrix is in great love with the petitioner. Even here, she has neither disclosed nor made any grievance about the factum of physical relationship. Significantly, this fact is also not so recorded in the complaint filed before the Women Commission. It is true that in the messages she has blamed the parents of the petitioner for non- solemnization of the marriage but then this by itself would not mean that there was a misconception of fact created by the petitioner in the mind of the prosecutrix, with regard to his intention of marrying her at the time when sexual intercourse took place. 20.It be only noticed that prosecutrix has not stated that her consent was obtained at the time when she was under depression. 21. Whether at the time of physical relationship, petitioner had obtained consent by inducement or misconception of fact is a question, which needs to be considered during trial, but prima facie, at this stage, it cannot be said with certainty that it is so. Whether the third person in the life of the prosecutrix was prior to her meeting the petitioner or thereafter is also a matter which needs to be considered during trial. 22.At this stage, based on the material so produced, it also cannot be said that prosecutrix was subjected to inducement or deceit. This I say so for the reason that the prosecutrix is an adult, aged about 29 years, She is highly educated. She was serving as a teacher in a public school at Shimla. She is born and brought in a cosmopolitan atmosphere and culture of Shimla town. Undisputedly she is not a rustic villager. Both the petitioner and the parents were in touch on telephone for over three years i.e. between 2007 and 2010. Thereafter, till April, 2011 they were in touch in person. Petitioner used to visit Shimla to meet the prosecutrix and they would meet at different places both pubic and private. Significantly, petitioner regularly kept on meeting the prosecutrix, who was in deep love from 2010 upto the year 2012 and the incident of alleged physical assault is once in the month of April, 2011 and second time in the month of October, 2011. 23.Significantly, FIR is totally silent with regard to the dates, time and the factum of consent having been obtained by misconception of fact. 23.Significantly, FIR is totally silent with regard to the dates, time and the factum of consent having been obtained by misconception of fact. The factum of misconception that the petitioner has no intention of marrying the prosecutrix at the time of physical relationship does not surface from the available record. Also, so far the prosecution agency has not been able to bring out any corroborative evidence. It is only in the statement of the prosecutrix under Section 161, Cr.P.C that such facts were disclosed. The relevancy of the statement recorded under Section 161, Cr.P.C., the fact that police has recorded such statement only to improve the version so narrated by the prosecutrix and whether there is inherent contradiction and improvement in such version, as is so urged on behalf of the petitioner, are matters which needs to be considered only after trial. This Court is not required to go into these questions at this stage. 24.However, I am of the considered view that there is no foundation to the apprehension of the prosecution that the petitioner would flee the country to avoid trial. His parents and permanent resident of Kangra. He only resides in Pune for work. Also there is no foundation of the plea that the petitioner would try to influence the witnesses. Prosecutrix is an educated lady, her parents are also educated and have already taken recourse to law, including approaching the Women Commissioner, Himachal Pradesh, Shimla. 25.During the investigation, petitioner, to my mind, has fully cooperated and his custodial interrogation would not be necessary unless there are other facts and circumstances, which may surface subsequently. Investigation has progressed significantly. 26.Petitioner may have be hiding after registration of the FIR till such time interim bail was granted by this Court, but then thereafter he is always available. Petitioner may have deleted the messages sent by him to the prosecutrix but then such messages were sent to the prosecutrix and should be with her. In any event, deletion of such messages would in no manner make the case worse against him. 27.No doubt, the crime is of grievous nature but then balance has to be struck between high rights and the right of the police to carry out a free and fair investigation. In any event, deletion of such messages would in no manner make the case worse against him. 27.No doubt, the crime is of grievous nature but then balance has to be struck between high rights and the right of the police to carry out a free and fair investigation. I am of the considered view that no prejudice will be caused to the prosecution or the prosecutrix in case pre-arrest bail is granted to the petitioner. 28.On the basis of record, it cannot be said that the petitioner would in any manner, impede the course and cause of justice. In no manner, the petitioner would hamper free, fair and full investigation. 29.Whether ultimately petitioner would be convicted or not for the offence in question, which has to be determined by the trial Court after complete material is placed on record by the parties, but till date it cannot be said that petitioner is not entitled for bail. In the given facts and the circumstances, petitioner has prima facie made out a case for grant of bail. 30.There is no probability of the petitioner abusing his liberty. He, through his learned counsel, undertakes to make himself available during the course of investigation, if required, as also during trial, if any. 31.Unlike the facts in Nikhil Parasar (supra), where the accused after meeting the prosecutrix at Delhi had agreed to marry her but prior to the marriage took her to Bombay where he committed sexual intercourse under the impression that the marriage would be solemnized, in the instant case, the parties were not only familiar with each other but talks of marriage was going on between the respective parents and the parties continued with their courtship being in love with each other. 32.Having taken into consideration the overall attending circumstances, the petitioner has been able to show that there is reason to believe that the threat of arrest is imminent. 33.For all the aforesaid reasons, interim order dated 25.2.2013, as extended from time to time, is made absolute. The petitioner shall be on bail till such time Challan is presented in the Court for trial whereafter, he shall approach the Court for regular bail, in accordance with law. 33.For all the aforesaid reasons, interim order dated 25.2.2013, as extended from time to time, is made absolute. The petitioner shall be on bail till such time Challan is presented in the Court for trial whereafter, he shall approach the Court for regular bail, in accordance with law. Needless to add, during this period petitioner shall fully comply with all the statutory conditions laid down under the provisions of Section 438 of the Cr.P.C. As a matter of abundant caution, it is clarified that petitioner shall neither tamper with the evidence nor try to influence the witnesses. He shall make himself available for investigation as and when required by the Investigating Officer. He shall not leave the country without prior permission of the Court. Liberty granted to the State/complainant for cancellation of the bail,if need so arises subsequently. 34.Hence for all the aforesaid reasons, the present petitioner is allowed. Any observation made herein above shall not be taken as an expression of opinion on the merits of the case and the trial Court/Women Commission shall decide the matter uninfluenced by any observation made herein above. Copy dasti.