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2022 DIGILAW 91 (TRI)

Supradip Das v. State of Tripura

2022-02-23

S.G.CHATTOPADHYAY

body2022
JUDGMENT 1. Heard Mr. Sankar Lodh, learned counsel appearing for the petitioner as well as Mr. S. Ghosh, learned Addl. Public Prosecutor representing the State. 2. Petitioner is an accused in Birganj P.S Case No.2022/BRG/002 which has been registered for commission of offence punishable under Sections 376, 313, 506, 509, 323 read with Section 34 IPC. Apprehending arrest in the case, petitioner has filed this application under Section 438 Cr.P.C for granting pre-arrest bail to him. 3. The case was registered on the basis of the written FIR lodged by the victim of this case wherein she alleged that the accused is a neighbour of her. Father of the accused had a very good relationship with her father and the family members of the accused including the accused used to visit their house regularly. The accused and the victim thus developed an intimacy. On 15.09.2021 accused came to her house and gossiped with her over a long period of time. The other house inmates were away from home at that time. Taking the opportunity, accused committed rape on her. When she divulged the incidence to her guardians, they called the parents of the accused. Father of the accused in a village meeting assured that his son would marry the victim and she was requested not to file any case against him. Their relationship became normal thereafter. On 16.11.2021 when the victim met the accused in his house, he wanted to have physical relationship with her and despite her resistance she was subjected to sexual intercourse by the accused. Accused blackmailed her by saying that he captured all photographs of their past physical relationship in his mobile and in case of her refusal to have physical relationship with him he would make the pictures viral in social media. She informed the father of the accused about the occurrence who advised her to accept everything without protest. Few days thereafter she conceived, when she told the petitioner about her pregnancy, he assured her that he would marry her as soon as he gets an employment. He gave some tablets to the victim. The victim miscarried after taking those tablets. After her miscarriage, accused again started blackmailing her. Then she lodged a written complaint in the Court of the Sub-Divisional Judicial Magistrate at Amarpur. He gave some tablets to the victim. The victim miscarried after taking those tablets. After her miscarriage, accused again started blackmailing her. Then she lodged a written complaint in the Court of the Sub-Divisional Judicial Magistrate at Amarpur. Her complaint was forwarded to the Officer-in-Charge of Birganj police station at Amarpur for investigation and report on the basis of which case was registered and investigation was taken up. Apprehending arrest, accused has approached this Court for pre-arrest bail under Section 438 Cr. P. C. 4. Appearing for the petitioner, Mr. Lodh, learned counsel contends that victim was at her consenting age at the time of occurrence and her complaint would demonstrate that it was a consented relationship between the parties. Counsel submitted that it would appear from her complaint that she continued to have relationship with the accused over a quite long period of time. She never lodged any complaint to police. After about four months from the alleged date of occurrence, she lodged a complaint in the Court of the Sub-Divisional Judicial Magistrate, Amarpur bringing false and unfounded allegations against the accused petitioner with an ulterior motive. Counsel contended that the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety would not prima facie constitute a charge of rape against the petitioner because the victim was admittedly at her consenting age and as per her version she lived in a relationship with the accused for about four months prior to filing of her complaint. Counsel contends that in her complaint the petitioner has clearly stated that after the first incidence on 15.09.2021 accused promised to marry her. Therefore, she cannot take the plea that her consent was vitiated because she was induced by the accused to consent to the relationship by false promise of marriage. To buttress his contention, counsel has relied on the decision of the Apex Court in Pramod Suryabhan Pawar v. State of Maharashtra and another; reported in AIR 2019 SC 4010 wherein the Apex Court has deliberated in paragraph-18 of the judgment as to how consent of a woman with respect to Section 375 IPC can be said to be vitiated by a misconception of fact arising out of a promise to marry and observed as under: '18. To summarise the legal position that emerges from the above cases, the 'consent' of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the 'consent' was vitiated by a 'misconception of fact' arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act.' 5. Counsel contends that in the present case, the victim who is admittedly 20 years old has stated in her complaint that on 15.09.2021 the accused for the first time got engaged in sexual act with her and admittedly, there was no promise of marriage at that time. Therefore, her consent in this case cannot be said to have been vitiated by misconception of fact arising out of promise to marry. To establish his contention counsel has also relied on the decision dated 09.12.2021 of this High Court in Shri Priyangan Saha v. The State of Tripura [Crl. A(J) No. 36 of 2020] wherein this Court relying on the decision of the Hon'ble Apex Court in Pramod Suryabhan Pawar (supra) observed that consent as contemplated under Section 375 IPC cannot be said to have been vitiated by misconception of fact arising out of promise to marry unless such promise bears a direct nexus to the woman's decision to engage in the sexual act. Having contended thus counsel of the petitioner has urged the Court to allow pre-arrest bail to the petitioner. 6. Mr. S. Ghosh, learned Addl. Public Prosecutor vehemently opposes the bail application contending that the victim belongs to poor strata of society who was sexually ravished by the accused to gratify his lust. The poor victim was allured with the promise of marriage by the petitioner to obtain her consent for physical relationship. Ultimately, he refused to marry her and continuously blackmailed her by saying that he would circulate the pictures of their physical relationship captured by him in his cell phone in social media in case of her refusal to have sexual intercourse with him. Counsel submits that investigation is in progress and evidence is forthcoming. Ultimately, he refused to marry her and continuously blackmailed her by saying that he would circulate the pictures of their physical relationship captured by him in his cell phone in social media in case of her refusal to have sexual intercourse with him. Counsel submits that investigation is in progress and evidence is forthcoming. In these circumstances, pre-arrest bail of the accused would obstruct a free and fair investigation of the case. 7. Perused the record including the case diary. Considered the submissions of learned counsel made at the Bar. It is true that court enjoys discretionary power with regard to grant of bail under Section 438 Cr. P.C. But the Apex Court in Nathu Singh v. State of Uttar Pradesh and Others; reported in (2021) 2 SCC (Cri) 757 has held that such discretionary power cannot be exercised in an untrammeled manner. Observation of the Court is as under: '24. However, such discretionary power cannot be exercised in an untrammeled manner. The Court must take into account the statutory scheme under Section 438, Cr.P.C., particularly, the proviso to Section 438(1), Cr.P.C., and balance the concerns of the investigating agency, complainant and the society at large with the concerns/interest of the applicant. ******' 8. In the present case, obviously the victim has brought serious charges against the accused. She has categorically stated that accused being a neighbour of her had access to her home and on the material date when the house inmates were away from home on work, he went there and despite her resistance he committed sexual intercourse on her. He even video graphed the pictures of their relationship in his mobile phone and later started blackmailing her. On several occasions thereafter he obtained her consent to have sexual intercourse with him saying that the pictures would be circulated in case of her refusal to engage in sexual act with him. The facts and circumstances appearing from her complaint clearly indicate that even though she was at her consenting age, she was subjected to sexual intercourse by the accused either against her consent or she gave consent under duress. Therefore, the case demands a thorough investigation. There is merit in the submission of the learned Addl. Public Prosecutor that custodial interrogation of the petitioner is necessary in this case. Therefore, the case demands a thorough investigation. There is merit in the submission of the learned Addl. Public Prosecutor that custodial interrogation of the petitioner is necessary in this case. Moreover, the victim belongs to poor strata of society and the facts and circumstances reveal that she is a hapless woman. In these circumstances, it is quite likely that the petitioner, if released on bail, will influence the witnesses and obstruct the course of a free and fair investigation of the case. Charge is serious for which severe punishment is prescribed. The allegations on the face value constitute a strong prima facie case of the offence of rape against the petitioner. The materials so far collected by the investigating agency also support the charge of rape. In these circumstances, it would be inappropriate to release the petitioner on pre arrest bail. 9. In terms of the above, his bail application stands rejected and the case is disposed of.