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2020 DIGILAW 546 (RAJ)

Varun Goyal v. State of Rajasthan

2020-06-08

SANJEEV PRAKASH SHARMA

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JUDGMENT Sanjeev Prakash Sharma, J. - Instant second bail application has been filed by the petitioner palpably on the ground that there is change of circumstances as the charge-sheet has been filed by the Police against him under Section 376, 498-A, 323, 406, 506 IPC. 2. The first bail application was rejected by this Court vide order dated 07/04/2020 observing as under:- "Taking into consideration the allegations made in the FIR which show that the petitioner, who is a lawyer by profession, has obtained an ex-parte decree of divorce, and also beaten up the lady. It is also alleged that the petitioner has entered into illicit relationship with another women, he has after obtaining divorce on 1.4.2015 had illegally and forcefully sexual relationship with the prosecutrix, who has lodged an FIR alleging offence against the petitioner and other family members under Sections 498A, 406, 323, 377, 506, 494 and 120-B IPC. Learned counsel for the complainant has also submitted that the offence under Section 376 is also prima facie made out and investigation is under way. Keeping in view the allegation levelled against the accused petitioner, I do not find that it is a fit case to release the accused petitioner on bail under Section 439 CrPC. The bail application is accordingly dismissed." 3. Learned counsel for the petitioner has again argued the case on merits and submitted that the petitioner is in custody since 27/02/2020 and the ex-parte divorce decree granted to the petitioner has been set aside by the concerned Court. Learned counsel further submitted that under a compromise the petitioner had given the prosecutrix an amount of Rs.27 Lac and the prosecutrix was causing physical and mental cruelty to the petitioner on account of which the petitioner had moved the divorce petition. Learned counsel further submitted that since the ex-parte decree has been set aside, the prosecutrix becomes his wife of the petitioner and therefore, the provisions of Section 375 IPC shall not apply and at best it can come within the ambit of provisions of Section 376-B IPC which is a bailable offence and therefore, the petitioner ought to be released on bail. Learned counsel relied on the judgment of the Supreme Court rendered in Ravinder Kaur Vs. Learned counsel relied on the judgment of the Supreme Court rendered in Ravinder Kaur Vs. Anil Kumar, (2015) 8 SCC 286 to submit that in similar circumstances and the facts, the Court had noticed that if ex-parte divorce decree has been passed and the same is set aside, the matrimonial relations between husband wife shall have tobe restored. 3. Learned Public Prosecutor opposed the bail application. 4. Learned counsel for the complainant also opposed the bail application and pointed out that the petitioner, who is a Lawyer by profession, has misused his legal knowledge for getting the exparte divorce decree granted from the Court without getting the service affected on the wife and without knowledge of her wife. The documents which have been placed alongwith the bail to show that there was a compromise arrived at between the parties and that an amount of Rs.30 Lac was paid are all forged and no such amount has been received. The accused-petitioner has placed forged document and the same cannot be relied upon. Learned counsel for the complainant has further submitted that no new circumstances have arisen after the first bail application was rejected as at the time of the first bail application rejection, the documents were looked into by the Court. The allegations levelled against the petitioner are under various provisions of causing harassment and cruelty and demand of dowry. It is also submitted that the petitioner, after getting an ex-parte divorce decree, continued to have forceful sexual relations with his wife and at the same time, he also got married to another lady. It is stated that the petitioner deliberately mentioned his wrong address before the Family Court in the Divorce Petition by filing affidavit alongwith Divorce Petition and a decree of divorce was obtained by the petitioner on 01/04/2015. Learned counsel for complainant further submitted that the prosecutrix continued to live with her husband and two children and she was informed about the divorce only when she had come to Jaipur to visit her parents on 06/05/2017. 5. After hearing learned counsel for the petitioner, learned PP and learned counsel for the complainant, this Court has gone through the material available on record and the judged relied upon. 6. It is noticed that the accused-petitioner has retained entire jewelry of his wife as well as her clothing and that of her children. 5. After hearing learned counsel for the petitioner, learned PP and learned counsel for the complainant, this Court has gone through the material available on record and the judged relied upon. 6. It is noticed that the accused-petitioner has retained entire jewelry of his wife as well as her clothing and that of her children. The prosecutrix has also been threatened by her husband (accused petitioner) as well as her father-in-law and mother-inlaw who are also Lawyers. There is also mention of demand of dowry and allegations of being beaten up to the prosecutrix. From the charge-sheet, it is also seen that there are photographs of the prosecutrix having injuries on her body. 7. The judgment cited by learned counsel for the petitioner in Ravinder Kaur Vs. Anil Kumar (Supra) is otherwise. It is a case where the person, who had raped his wife after having taken exparte decree, had been discharged on the ground that the exparte decree had been set aside. However, the lady again filed a complaint and the question arise before the Apex Court was whether the provisions of Section 493 IPC would have an application in the facts of the case. Taking into consideration the ex-parte decree so passed on 08/01/1994 which was set aside on 19/02/1996, it was held that second complaint could be filed. However, offence under Section 493 IPC would not be made out wheeafter the Apex Court proceeded to compound the offence under Section 494 IPC. 8. In the present case, the facts are different. It is after the complaint was filed and the petitioner was placed in judicial custody that thereafter application for ex-parte decree was allowed and the ex-parte decree was set aside. The offence when committed was in full knowledge of the accused-petitioner being the period when he had already taken divorce. It is more aggravated taking into consideration that the accused-petitioner is a Lawyer having full knowledge of the procedure for obtaining ex- parte decree. Granting of bail is a discretionary power which has to be exercised judiciously and in matters where the Court finds that prima-facie the offence is not made out. From the facts which have come on record and from the charge-sheet, this Court primafacie finds that no case is for bail is made out in favour of the petitioner. 9. Granting of bail is a discretionary power which has to be exercised judiciously and in matters where the Court finds that prima-facie the offence is not made out. From the facts which have come on record and from the charge-sheet, this Court primafacie finds that no case is for bail is made out in favour of the petitioner. 9. With regard to the question whether the case would fall under Section 375 or 376-B IPC is not to be examined by this Court at this stage while considering the bail application of the accused-petitioner. 10. In view of the discussion made above, this bail application is rejected at this stage with liberty to the petitioner to file fresh after statement of the prosecutrix is recorded.