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2023 DIGILAW 153 (JK)

X (name concealed) v. UT of J&K

2023-04-20

RAJNESH OSWAL

body2023
JUDGMENT : Rajnesh Oswal, J. 1. Both the Union Territory of Jammu and Kashmir and the prosecutrix have approached this Court for cancellation of bail granted to the respondent by the Presiding Officer, Fast Track Court, Jammu (hereinafter to be referred as the 'trial court') in charge sheet titled, 'UT of J&K v. Manu Thapa', arising out of FIR No. 12/2022 registered with Police Station, Bishnah under sections 376, 417 and 201 IPC. 2. The Union Territory of Jammu and Kashmir has sought the cancellation of bail and quashing of the order dated 24.05.2022, by virtue of which, interim bail was granted to the respondent and the order dated 23.08.2022, by virtue of which, interim bail granted to the respondent was made absolute, on the ground that the order impugned has been passed on the erroneous assumption, as there is distinction between false promise of marriage and promise to marry made in good faith and further that the respondent from the initial stage of his relationship with the prosecutrix was having no intention to marry the prosecutrix and in fact convinced the prosecutrix to enter into physical relationship with him under the false promise of marriage. It is also stated that it was the case of rare instance where a woman was made to indulge into sexual act against her will, in order to save her from disgrace and the learned trial court has given undue leverage to the concocted story projected by the accused. It is also stated that the relevant factors for grant of bail have not been taken note of by the learned trial court while grating bail such as gravity and nature of offence, the position of the accused, likelihood with the tampering of the prosecution witnesses and the chances of the accused to jump over the bail to escape the prosecution. 3. The prosecutrix too has projected the same grounds for the cancellation of bail or in the alternative for quashing of the order dated 24.05.2022, granting bail to the respondent on the ground that learned trial court has not taken note of the fact that the prosecutrix was minor but the learned trial court has granted bail on the ground that the respondent was having love affair with the petitioner and there was promise of marriage. It is also stated that no opportunity of being heard has been granted to the petitioner before granting bail. 4. Mr. P.D. Singh, learned Dy. A.G., submitted that the learned trial court has granted bail to the respondent ignoring the serious allegations and the gravity of the offence. The respondent had sexually abused the prosecutrix forcibly and by blackmailing her, therefore, the order granting bail to the respondent deserves to be quashed. 5. Mr. Anuj Dewan Raina, learned Counsel for the prosecutrix/petitioner toed the line of arguments advanced by the learned Dy. A.G. and additionally submitted that the petitioner was not granted any opportunity to oppose the bail application by the learned trial court. 6. The respondent has filed the written submissions, wherein besides questioning the maintainability of the petition filed under section 482 Cr.P.C., has also made reference to the deposition of the prosecutrix before learned trial court. Mr. Sheikh Altaf Hussain, learned counsel for the respondent submits that statements of the prosecutrix, Dr. Khalida and Saudagar Mal have been recorded and till date there is no complaint against the respondent that he ever abused/misused the concession of bail. He further submitted that the prosecutrix has altogether created a new story while deposing before the learned trial court and the present petition has been filed by the prosecutrix just to harass the respondent. 7. Heard and perused the record. 8. A perusal of the record reveals that the prosecutrix submitted the written application on 24.01.2022 with Police Station Bishnah, for registration of FIR against the respondent wherein she pleaded that the respondent was known to her since long and they were good friends. However, with the passage of time, their friendship turned into love affair and they started frequently meeting each other. Manu developed physical relationship with her despite her strong resistance to such relationship before the solemnization of marriage. However, he convinced her that he would marry her only but his promise turned out to be false when she came to know that Manu was engaged to some other girl. She called him but he avoided her on one pretext or the other. Later on, she informed the girl's family and they broke the engagement with the respondent. However, he convinced her that he would marry her only but his promise turned out to be false when she came to know that Manu was engaged to some other girl. She called him but he avoided her on one pretext or the other. Later on, she informed the girl's family and they broke the engagement with the respondent. On 22.12.2021, the respondent again asked her to meet him but she refused and he also told her that he was having her private photos and if she did not come, he would upload those on social media. She requested him not to do so and she had no other option but to meet him. On the same day, he went to meet him and he had sexual intercourse with her despite her strong resistance for the same. Later, he threatened her not to disclose the fact to anyone other wise, he will upload the photos on social media. She did not disclose the same to anyone and few days back, she narrated the story to her mother. On receipt of this application, FIR under sections 376, 420 IPC was registered and after the conclusion of investigation, the charge sheet for commission of offences under sections 376, 417, 420 and 201 IPC was laid against the respondent. Offence under section 201 IPC was added because the respondent had allegedly destroyed the phone having photos of the prosecutrix. The charges for commission of above offences were framed against the respondent vide order dated 06.04.2022. 9. The statement of the prosecutrix was recorded and the learned trial court vide order dated 24.05.2022 granted interim bail to the respondent. Learned trial court while granting bail to the respondent has observed that crux of the statement of the prosecutrix recorded during the trial reveals that the respondent raped the prosecutrix on the promise of marriage on different dates against her consent and later refused to marry her. The learned trial court has taken note of the relevant considerations for grant of bail and has observed that the prosecutrix is grown up girl of 24 years of age and she has admitted that the respondent is his neighbour and used to visit the house of the prosecutrix regularly. 10. The learned trial court has taken note of the relevant considerations for grant of bail and has observed that the prosecutrix is grown up girl of 24 years of age and she has admitted that the respondent is his neighbour and used to visit the house of the prosecutrix regularly. 10. Though the prosecutrix has stated that the respondent maintained physical relations with her against her wish but equally true is that the prosecutrix has herself admitted that she was in love with the respondent and the respondent was usual visitor of the house of the prosecutrix. Whether the relationship between the respondent and the prosecutrix was consensual or not, is an issue that is a matter of trial. But at this stage it cannot be said that the respondent has no defence at all particularly when the respondent in his written submissions has submitted that even if the prosecutrix is believed, then judgment of Hon'ble Apex Court in 'Uday v. State of Karnataka', (2003) 4 SCC 46 would apply. 11. It needs to be noted that the petitioner in both the petitions has not only prayed for cancellation of bail granted to the respondent but has also prayed for quashing of the order impugned. The considerations for the grant of bail and cancellation of the bail are different. In CBI v. Subramani Gopalakrishnan, (2011) 5 SCC 296 , the Hon'ble Apex Court has observed as under: 23. It is also relevant to note that there is difference between yardsticks for cancellation of bail and appeal against the order granting bail. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of bail already granted. Generally speaking, the grounds for cancellation of bail are, interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concessions granted to the accused in any manner. These are all only few illustrative materials. The satisfaction of the court on the basis of the materials placed on record of the possibility of the accused absconding is another reason justifying the cancellation of bail. These are all only few illustrative materials. The satisfaction of the court on the basis of the materials placed on record of the possibility of the accused absconding is another reason justifying the cancellation of bail. In other words, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. 12. These principles were reiterated by the Hon'ble Apex Court in 'Ms. X v. State of Telangana, (2018) 16 SCC 511 ". Thus bail once granted to the accused can be cancelled only when the circumstances are such that permitting the accused to remain on bail would not be conducive for the fair trial. So far as the instant case is concerned, the statement of the prosecutrix, who is the star witness, has already been recorded. Even the statements of two more witnesses have been recorded. There is nothing on record to even suggest that the respondent has indulged in any activity that may be prejudicial to the conduct of the fair trial. 13. Further the Hon'ble Apex Court in 'Ms. X v. State of Telangana, AIR 2018 SC 2466 ', where challenge was thrown to the order granting bail to the accused involved in rape of an aspiring actress, has observed as under: 16. Having considered the rival submissions, we are not at this stage, inclined to delve into the merits of the allegations at any length in order to preclude the possibility of our observations influencing the course of the trial. Since the appeal has been argued at some length before the Court, we are indicating our reasons, though with a clarification-by way of abundant caution-that our observations are confined to the issues which arise here in an appeal against the order of the High Court granting bail under section 439. Having heard the learned counsel, we have arrived at the conclusion that the exercise of discretion by the High Court in the present case cannot be faulted. We must, at the outset, note that the case of the complainant is that the accused had (as she described in the complaint) "been making false promises for getting married to her". This has been reiterated in the charge-sheet which has been submitted on 06.03.2018. We must, at the outset, note that the case of the complainant is that the accused had (as she described in the complaint) "been making false promises for getting married to her". This has been reiterated in the charge-sheet which has been submitted on 06.03.2018. At this stage, all that we need to note is that even going by the case of the complainant, there was intimate contact between the complainant and the accused over a period of nearly six months between July, 2015 and January, 2016. Even according to the complainant, she visited the accused on two occasions in Hyderabad and stayed with him. The tickets for her travel from Mumbai were borne by the accused. The complaint was filed nearly a year thereafter in January, 2017. This is a relevant circumstance which has been taken note of by the High Court. These circumstances do bear upon the defence that there was a consensual relationship between the complainant and the accused. Both in her complaint as well as in the charge-sheet, it has been alleged that the accused had falsely promised to marry the complainant. However, in the course of the rejoinder, the complainant has substantially diluted this stand, alleging that: "That the petitioner has at every stage-including in arguments before this Hon'ble Court-maintained that the promise to marry was merely a complete elucidation of the facts and circumstances of the case." During the course of the hearing, the learned counsel appearing on behalf of the complainant submitted that this is not a case involving a breach of a promise to marry. 14. The learned trial court has taken in to consideration the relevant factors for grant of bail and in view of the peculiar facts and circumstances of the case, has granted bail to the respondent. The discretion exercised by the trial court on the basis of material available on record cannot be faulted with. 15. The learned counsel for the prosecutrix in the end also tried to raise an issue that a minor has been raped as it has been observed by the learned trial court that the prosecutrix has been in relationship with the accused for the last 9 years. It needs to be noted that there is no charge against the petitioner for commission of any offence under a POCSO Act, as such, there is no force in this contention, the same is rejected. 16. It needs to be noted that there is no charge against the petitioner for commission of any offence under a POCSO Act, as such, there is no force in this contention, the same is rejected. 16. In view of what has been discussed above, there is no merit in both these petitions and the same are, accordingly, dismissed.