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2022 DIGILAW 187 (MEG)

Rupak Paul v. State of Meghalaya

2022-07-15

W.DIENGDOH

body2022
JUDGMENT 1. Heard Mr. K. Ch. Gautam, learned counsel for the applicant, who, at the first instance has led this Court to Annexure-1 of this application which is a copy of the FIR lodged by the respondent No.3 herein. The contents of the FIR lodged before the Officer-In-Charge Jhalupara Beat House, Shillong dated 31.05.2022 would show that the complainant has accused the applicant herein of having raped her several times in the year 2013 and to keep her quiet had threatened her with dire consequences, even to kill her if she complaints about the matter to anyone. This act of rape continued even in the year 2014 after the marriage of respondent No.3/complainant and finally on 28.05.2022 at about 4:00PM, the applicant, called her up over the phone in the presence of her husband and indicated that she is to come and meet him at Barapathar as he was in the mood and wanted to play the game. The husband of respondent No.3/complainant overheard this conversation which finally led to the respondent No. 3/complainant to reveal the whole story to him. The husband then called up the wife of the applicant, who is the sister of the respondent No.3/complainant and told her everything, but the said sister refused to believe the respondent No.3/complainant. 2. It is also submitted that on the basis of the said FIR, the police had registered a case being Lumdiengjri PS Case No. 58(6)2022 under Section 376/506/509 IPC. 3. Mr. Gautam has further submitted that a plain reading of the FIR would suggest that it is false and fabricated made with an ulterior motive, since there was considerable delay of 9(nine) years in filing of the same which was not explained by the respondent No.3/complainant and has cast serious doubts about the allegations made therein. 4. On the antecedents of the applicant, Mr. Gautam has submitted that the applicant, is working as a medical representative in a private company with good reputation and having a wife with one school going child and there is no criminal record against him. Being accused of having committed a serious offence of rape, the reputation of the applicant, will be tarnished in society and his job would be in jeopardy. 5. Being accused of having committed a serious offence of rape, the reputation of the applicant, will be tarnished in society and his job would be in jeopardy. 5. It is further submitted that irrespective of the fact that the case against the applicant, may proceed in its usual course, since an apprehension of imminent arrest is made out, the applicant, has therefore approached this Court with this instant application under Section 438 Cr. PC for grant of pre-arrest bail on any conditions that this Court may deemed fit and proper to impose. 6. It is also submitted that this Court upon hearing the applicant vide order dated 08.07.2022, had allowed the applicant to go on interim bail and as such, it is prayed that the interim bail may be made absolute. 7. Mr. R.H. Alice, learned counsel for the respondent No.3/complainant has submitted that the allegations made in the FIR are true and that the respondent No.3/complainant has been threatened by the applicant, not to disclose the fact that she was raped by him. However, it was only when she received the phone call on 28.05.2022, that she along with her husband have decided to report the matter to the police. 8. Mr. S. Sengupta, learned Addl. PP on behalf of the State respondent has submitted that the relevant case diary as called for is now produced before this Court and on perusal of the same this Court may be pleased to pass necessary orders. 9. Due consideration has been given to the submission of the learned counsels for the parties. At the outset, it would not be proper if the relevant provision is not highlighted as regard the provision for grant of pre-arrest bail is concerned. Section 438 Cr. PC reads as follows: - '438. Direction for grant of bail to person apprehending arrest. 9. Due consideration has been given to the submission of the learned counsels for the parties. At the outset, it would not be proper if the relevant provision is not highlighted as regard the provision for grant of pre-arrest bail is concerned. Section 438 Cr. PC reads as follows: - '438. Direction for grant of bail to person apprehending arrest. -(1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely: - (i) The nature and gravity of the accusation; (ii) The antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; (iii) The possibi8lity of the applicant to flee from justice; and (iv) Where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail; Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application. (1A) Where the Court grants and interim order under sub-section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court. (1B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.] (2) When the High Court or the Court of Session makes a direction under sub- section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including- (i) a condition that the person shall make himself available for interrogation by a police officer as and when required; (ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; (iii) a condition that the person shall not leave India without the previous permission of the Court; (iv) such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section. (3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1). [(4) Nothing in this section shall apply to any case involving the arrest of any person on accusation of having committed an offence under sub-section (3) of section 376 or section 376AB or section 376DA and section 376DB of the Indian Penal Code (45 of 1860).] 10. Generally understood, this provision provides for a direction for grant of bail to an accused person in the event of his arrest. However, consideration has to be taken to a number of factors before this provision can be resorted to. Generally understood, this provision provides for a direction for grant of bail to an accused person in the event of his arrest. However, consideration has to be taken to a number of factors before this provision can be resorted to. The first is the nature and gravity of the accusation followed by the antecedent of the applicant to be looked into and also the possibility of the applicant to flee from justice and finally, if an accusation has been made with the object of injuring or humiliating the applicant. 11. The case is at the investigation stage and the case diary would show that the Investigating Officer (I/O) had taken the preliminary steps and has recorded the statement of relevant witnesses including the respondent No. 3/complainant. Infact, the respondent No.3/complainant has also got her statement recorded before a Judicial Magistrate under Section 164 Cr. PC. 12. Relevant for consideration is the statement of the respondent No.3/complainant inasmuch as, what is on record is a detailed rendering of what transpired since the first time when the applicant was accused of having committed the act of rape on the respondent No.3/complainant which started sometime in the year 2013. On going through such an elaborate narration, prima facie this Court is of the considered opinion that a victim of rape would not be able to give such an accurate depiction of events if, there is no truth in the same, coupled with the fact that the often quoted notion that a victim of rape would not necessarily subject herself to public humiliation if there is no truth in the allegation. This does not necessarily mean that the same will stand the scrutiny of law and evidence but at the stage of investigation, on prima facie evidence the matter can proceed for investigation. 13. The authorities cited by the learned counsel for the applicant that is Bail Application No. 3475 of 2022 before the High Court of Kerela, being the case of Vijay Babu v. State of Kerela & Ors. would not help the applicant as the facts and circumstances are not similar to the matter in hand. However, in the said order at paragraph 19, the Hon'ble High Court has quoted the judgment of the Hon'ble Supreme Court in the case of Sushila Aggarwal and Ors. would not help the applicant as the facts and circumstances are not similar to the matter in hand. However, in the said order at paragraph 19, the Hon'ble High Court has quoted the judgment of the Hon'ble Supreme Court in the case of Sushila Aggarwal and Ors. v. State (NCT of Delhi) and Another; (2020) 5 SCC 1 , particularly paragraph 92 with extracts of paragraph 92.4 which reads as follows: - '92.4. Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail, or refuse it. Whether to grant or not is a matter of discretion; equally whether and if so, what kind of special conditions are to be imposed (or not imposed) are dependent on facts of the case, and subject to the discretion of the court.' 14. Again, in the case of Pratap v. State of UP & Ors. 2020 SCC Online All 935, the Hon'ble Allahabad High Court in this case has taken into account, inter alia, the fact that the FIR is delayed by more than five months without any justifiable reasons, has granted anticipatory bail to the applicant therein. 15. However, in this case the delay in filing the FIR has been clearly explained by the respondent No.3/complainant when she has stated that it was because of threats by the applicant that she was restrained from filing a complaint. 16. On consideration of the above, this Court is of the view that at this stage of the investigation, considering the nature and gravity of the offence alleged, the prayer of the applicant for grant of pre-arrest bail cannot be considered. 17. Accordingly, this application is hereby dismissed as devoid of merits and the same is hereby disposed of. 18. The interim bail grant is hereby vacated. 19. Registry is directed to send back the case diary.