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2021 DIGILAW 296 (JK)

Sumeet Ramotra v. Union Territory J&K

2021-06-24

SANJAY DHAR

body2021
Judgment 1. Petitioner has moved this application for grant of bail in anticipation of his arrest in FIR No.109/2021 for offences under Sections 376, 343, 504 and 506 IPC registered with Police Station, Domana, Jammu. 2. Briefly stated, the case of prosecution is that the prosecutrix, moved an application for registration of FIR in terms of Section 156(3) of Cr. P. C. before the Court of Special Excise Mobile Magistrate, Jammu, and vide order dated 15.04.2021 read with order dated 30.03.2021, passed by the learned Magistrate, directions for registration were issued to the police, in pursuance whereof the prosecutrix produced the said application before the police. On the basis of the orders of the learned Magistrate, the aforesaid FIR came to be registered by the police. 3. In her complaint, the prosecutrix claimed that she had come in contact with the accused in the year 2018 and after 2-3 days of her conversation with the accused, he promised to marry her. According to the complainant/prosecutrix, she fell into the trap of the accused and accompanied him to Katra City for paying a visit to Shri Mata Vaishno Devi Shrine on 03.09.2018. It has been alleged that while they spent a night in a hotel at Katra, the accused forced himself upon the prosecutrix and committed sexual intercourse with her. It is further alleged that the accused clicked some nude photographs of the prosecutrix and thereafter started blackmailing her. The prosecutrix further goes on to allege that on account of this blackmailing tactics of the accused, she again accompanied the accused on 20th of January, 2019, on which date she was again sexually exploited by him and thereafter on 21.04.2019, she again accompanied the petitioner to Srinagar. It is alleged that the accused kept on committing sexual intercourse with the prosecutrix for about three years by making false promise of marrying her. 4. After registration of the FIR, the Investigating Agency went ahead with the investigation of the case. As per the status report filed by the respondent State, on the basis of investigation conducted so far, the offences under Section 376, 343, 504 and 506 IPC stand established against the accused/petitioner. 5. According to the petitioner, the allegations made in the FIR are vexatious and baseless and that no offences are made out against him. As per the status report filed by the respondent State, on the basis of investigation conducted so far, the offences under Section 376, 343, 504 and 506 IPC stand established against the accused/petitioner. 5. According to the petitioner, the allegations made in the FIR are vexatious and baseless and that no offences are made out against him. It is contended that the very basis of the FIR in question, so far it relates to the allegation that the petitioner has committed sexual intercourse with the prosecutrix by extending false promise of marriage to her, is improbable because the prosecutrix, at the time of alleged occurrence, was a married lady and, as such, there was no question of extending a promise of marriage to her by the petitioner. It is averred that the prosecutrix is serving as a Constable in the Police Department and she, by misuse of her official position, in order to harass the petitioner, has managed to register a false and frivolous case against the petitioner, who is a married person. In this regard, the petitioner is stated to have approached the higher authority of the Police Department prior to the registration of the FIR. 6. Learned AAG, appearing for respondent No.1 and 2,has vehemently opposed the contentions of the petitioner and has contended that the petitioner has allured the prosecutrix to have sexual relationship with him on the basis of a false promise of marriage. He has further contended that the material collected by the Investigating Agency till date has established the complicity of the petitioner and, as such, he does not deserve to be released on bail, that too in anticipation of his arrest. It is further contended that keeping in view the gravity of the offences and the public interest involved, the bail application deserves to be dismissed. 7. Respondent No.3, the prosecutrix, has also contested the application by filing a reply thereto. In her reply, respondent No.3 has reiterated the allegations made by her in the FIR. She has further submitted that it is only because the petitioner extended promise of marriage to her that she, relying upon the said promise, acceded to his request of having sexual relationship on a number occasions. In her reply, respondent No.3 has reiterated the allegations made by her in the FIR. She has further submitted that it is only because the petitioner extended promise of marriage to her that she, relying upon the said promise, acceded to his request of having sexual relationship on a number occasions. Respondent No.3 has, however, admitted that her marriage had taken place on 08.05.2018 and has further gone on to submit that the said marriage ended in a divorce by virtue of a decree of divorce dated 22nd of January, 2020. 8. I have heard learned counsel for the parties and perused the record of the case including the case diary. 9. So far as the principles governing the grant of bail in anticipation of arrest are concerned, the same have been laid down by a Constitution Bench of the Supreme Court in the case of Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 . In this judgment, the Supreme Court has observed that some of the considerations, which must enter the mind of a Court while deciding a bail application, are the nature and seriousness of the proposed charges, a reasonable possibility of applicant’s presence not being secured at the trial, a reasonable apprehension of applicant tampering with the prosecution witnesses and similar other factors. Besides this, the Supreme Court has laid down that frivolity in the prosecution case should always be considered and in the event of there being some doubt as to the genuineness of the prosecution case, in the normal course of events, the accused is entitled to an order of bail. These principles have been reiterated by the Supreme Court in Siddharam Satlingappa Mhetre v. State Of Maharashtra And Ors, (2011) 1 SCC 694 . 10. Thus, while the nature of offence and severity of punishment is an important consideration for considering a plea for grant of anticipatory bail to an accused, a prima facie, view of the genuineness of the charges against an accused is a factor which is always required to be considered. 11. Adverting to the facts of the case, a perusal of the status report submitted by the respondent No.2, reveals that the petitioner was working in Ellaqui Dehati Bank at Chanderkote, Ramban, whereas the prosecutrix is serving as a Constable in the J&K Police Department. 11. Adverting to the facts of the case, a perusal of the status report submitted by the respondent No.2, reveals that the petitioner was working in Ellaqui Dehati Bank at Chanderkote, Ramban, whereas the prosecutrix is serving as a Constable in the J&K Police Department. In her complaint, the prosecutrix has submitted that in the year 2018, she came in contact with the petitioner, who promised to marry her. From the facts narrated in the FIR, it emerges that the petitioner and the prosecutrix had been in relationship for about three years and during this period they developed physical relations with each other on several occasions. The prosecutrix accompanied the petitioner to Katra, Srinagar and several other places during this period. From the facts narrated in the pleadings of the parties, it further emerges that the prosecutrix was married at the time she came in contact with the petitioner. 12. Learned counsel for the petitioner has laid much emphasis on the fact that the prosecutrix, as per her own admission, was a married lady in the year 2018, when she developed relationship with the accused/petitioner. On this basis, it is urged that in such a situation the question of extending promise of marriage by the petitioner to the prosecutrix and the corresponding reliance upon such promise by the prosecutrix is inconceivable. The learned counsel has contended that a married lady cannot be hoodwinked into a promise of marriage by a person and, as such, it cannot be stated that the consent of such a lady to enjoy sexual relation with a man would be vitiated by misconception. It is further contended that even if it is assumed that the petitioner had any sexual relationship with the prosecutrix, the same would be consensual in nature and not an act induced by misconception of facts. Learned counsel has relied upon the judgment of the Supreme Court in the case of Jayanti Rani Panda vs. State of West Bengal, 1984 Cri. L.J 1535, wherein the Court, on the facts of the said case, came to the conclusion that failure to keep the promise of marriage at a future uncertain date does not always amount to a misconception of fact at the inception of the act itself. 13. L.J 1535, wherein the Court, on the facts of the said case, came to the conclusion that failure to keep the promise of marriage at a future uncertain date does not always amount to a misconception of fact at the inception of the act itself. 13. Although, it would be premature for this Court to deeply analyse the material collected by the investigating agency in support of its charge against the petitioner, yet, for the limited purpose of deciding this application, it is necessary to take this material into consideration to test the merits of submissions made by learned counsel for the petitioner. 14. As already noted, the prosecutrix remained in relationship with the petitioner for about three years right from the year 2018. She accompanied him to several places and spent many days and nights with him. As per own case of the prosecutrix, she enjoyed sexual relationship with the petitioner on a number of occasions. She, however, claims that she did so on account of the false promise of marriage extended to her by the petitioner. The prosecutrix has, however, admitted in her pleadings that she was married in the year 2018 and she got divorce from her husband in January, 2020. There appears to be force in the contention of the petitioner that the promise of marriage by a man to a married lady is improbable and it is highly unlikely that a married lady would give her consent for having sexual relationship by believing such a promise. This Court would not like to comment on the merits of the allegations made by the prosecutrix in the FIR but the material on record does suggest that the prosecutrix and the petitioner were deeply in love with each other, which resulted in sexual intercourse between the two. 15. The Supreme Court in the case of Uday v. State of Karnataka, (2003) 4 SCC 46 , while considering a similar issue, made certain observations which are relevant to context of the present case. The same read as under: “It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. The same read as under: “It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances the promise loses all significance, particularly when they are over come with emotions and passion and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well, and the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. In these circumstances it would be very difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In any event, it was not possible for the appellant to know what was in the mind of the prosecutrix when she consented, because there were more reasons than one for her to consent”. 16. For what has been observed by the Supreme Court in Uday’s case (supra), it becomes clear that for making out a charge of rape against an accused, there has to be material to show that the prosecutrix had consented to sexual intercourse in consequence of a misconception of fact arising from the promise of the accused. 17. At this stage it cannot be stated with certainty as to what was in the mind of the prosecutrix when she consented to have sex with the petitioner. However, there is material on record to suggest that she was deeply in love with him and she was already married at the time when she started her relationship with the petitioner. In these circumstances, the veracity of the complaint will have to be thoroughly investigated. The conduct of the prosecutrix raises many questions and it has to be ascertained during the investigation of the case whether the ingredients of cheating are present in the instant case. 18. In these circumstances, the veracity of the complaint will have to be thoroughly investigated. The conduct of the prosecutrix raises many questions and it has to be ascertained during the investigation of the case whether the ingredients of cheating are present in the instant case. 18. Having regard to the foregoing discussion, particularly keeping in view the fact that the prosecutrix was a married lady when she started her relationship with the petitioner, her conduct regarding levelling of allegation of rape on account of false promise of marriage against the petitioner creates genuine doubts which the Investigating Agency will have to address and answer during investigation of the case so as to see whether the ingredients of cheating are made out in this case. 19. Thus, a prima facie, case for grant of bail is made out. It is, however, made clear that the opinion expressed by this Court is limited for the purpose of these proceeding and it shall have no bearing upon the merits of the case. 20. For the foregoing reasons, the petition is allowed and the petitioner is admitted to bail in anticipation of his arrest in the aforesaid FIR subject to the following conditions: (i) That the petitioner shall make himself available to the Investigating Agency by surrendering before it and thereafter, in the event of arrest of the petitioner in connection with case i.e. FIR No.109/2021 P/S Domana Jammu, shall be released on furnishing bail to the tune of Rs.50,000/ and the personal bond of like amount to the satisfaction of the IO concerned; (ii) That the petitioner will remain available to the investigating agency as and when required. (iii) That the petitioner in any manner, directly or indirectly, will not attempt to thwart the process of investigation. (iv) That the petitioner will not tamper with the prosecution witnesses. (v) That the petitioner will not leave the limits of Union Territory of Jammu and Kashmir without prior permission of Investigating Officer concerned. (vi) That in case IO notices any type of deviation from the imposed conditions by the petitioner, he shall be at liberty to move an appropriate motion through learned counsel for cancellation of concession of bail granted to the petitioner. 21. Disposed of.