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2023 DIGILAW 1827 (ALL)

Riyazuddin v. State of U. P.

2023-07-31

NALIN KUMAR SRIVASTAVA

body2023
JUDGMENT : 1. Supplementary affidavit filed today is taken on record. 2. Heard learned counsel for the applicant, learned A.G.A. for the State and perused the material available on record. 3. Apprehending his arrest in Case Crime No.551 of 2019, under Sections 376, 504, 506 IPC, Police Station Tanda, District Rampur, the applicant -Riyazuddin has filed this anticipatory bail application seeking anticipatory bail in the aforesaid crime number. 4. It is alleged in the F.I.R. that on the false pretext of marriage, the accused applicant made physical relations with the prosecutrix for about one year and subsequently refused to marry her and threatened her to kill. F.I.R. was lodged on 16.11.2019 and investigation started and now charge-sheet has been submitted. 5. It is submitted by the learned counsel for the applicant that the applicant is innocent and he has apprehension of his arrest in the above-mentioned case, whereas there is no credible evidence against her. He has been falsely implicated into this matter. Allegations levelled against the applicant are false. The investigation of the case has been completed and charge-sheet has been filed. It is further submitted that the applicant never made any promise to marry with the prosecutrix. It is further submitted that it is a case of consensual relationship and the prosecutrix is a major lady and she was living with the applicant on her own free will and consent and the applicant never made physical relations with the prosecutrix forcibly or against her will. It is further submitted that in her statement recorded u/s 164 Cr.P.C., the prosecutrix has stated that she was in love with the applicant and she made physical relations with the applicant out of her own free will. It is further submitted that protection was granted to the applicant by this Court till filing of police report u/s 173 (2) Cr.P.C. in Crl. Misc. Writ Petition No. -24816 of 2019 vide order dated 5.12.2019 and the applicant has not misused the liberty granted to him. It is further submitted that the applicant has been cooperative during the course of investigation. He has no criminal history to his credit. No coercive process has been issued against the applicant. It is further submitted that no custodial interrogation is required in this matter from the applicant. Now after submission of the charge-sheet, the applicant is entitled for anticipatory bail till the end of trial. 6. He has no criminal history to his credit. No coercive process has been issued against the applicant. It is further submitted that no custodial interrogation is required in this matter from the applicant. Now after submission of the charge-sheet, the applicant is entitled for anticipatory bail till the end of trial. 6. Learned A.G.A. opposed the prayer for anticipatory bail and it has been submitted that after collecting ample evidence, charge-sheet has been submitted in this matter. Medical report supports the prosecution version. 7. By way of supplementary affidavit filed today, the applicant has brought this fact to the notice of this Court that he is still a bachelor whereas the prosecutrix performed marriage with one Rizwan s/o Kaluwa r/o Mohalla Vijay Nagar, Police Station Kashipur, District Udham Singh Nagar (Uttrakhand). 8. Now a days the Courts are over-flooded with the matters wherein it is alleged that the male accused, on the false promise of marriage, only to fulfill his lust, made physical relations with the victim and subsequently did not keep his promise and left her abandoned. In such matters, what the Court should actually look into is the intention of the accused from very inception of the relation. 9. Hon'ble Apex Court in Pramod Suryabhan Pawar Vs. The State of Maharashtra & Anr., 2019 (9) SCC 608 has categorically held that there is a distinction between a false promise given on understanding by maker that it will be broken and breach of a promise which is made in good faith but subsequently not fulfilled. In paragraph 14 of the aforesaid judgment, the Hon'ble Apex Court held that : "14. ... In the present case, the "misconception of fact" alleged by the complainant is the appellant's promise to marry her. Specifically in the context of a promise to marry, this Court has observed that there is a distinction between a false promise given on the understanding by the maker that it will be broken, and the breach of a promise which is made in good faith but subsequently not fulfilled. In Anurag Soni v State of Chhattisgarh, (2019) SCC OnLine SC 509, this Court held: "37. In Anurag Soni v State of Chhattisgarh, (2019) SCC OnLine SC 509, this Court held: "37. The sum and substance of the aforesaid decisions would be that if it is established and proved that from the inception the accused who gave the promise to the prosecutrix to marry, did not have any intention to marry and the prosecutrix gave the consent for sexual intercourse on such an assurance by the accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact as per Section 90 of the IPC and, in such a case, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined under Section 375 of the IPC and can be convicted for the offence under Section 376 of the IPC." Similar observations were made by this Court in Deepak Gulati v State of Haryana, (2013) 7 SCC 675 ("Deepak Gulati"): "21. … There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused…" Further, in paragraph 16 of the aforesaid judgment explaining the terms -misconception of fact, consent and breach of promise, the Hon'ble Supreme Court observed that : "16. ... Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a "misconception of fact" that vitiates the woman's "consent". On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it. The "consent" of a woman under Section 375 is vitiated on the ground of a "misconception of fact" where such misconception was the basis for her choosing to engage in the said act. In Deepak Gulati this Court observed: "21. … There is a distinction between the mere breach of a promise, and not fulfilling a false promise. The "consent" of a woman under Section 375 is vitiated on the ground of a "misconception of fact" where such misconception was the basis for her choosing to engage in the said act. In Deepak Gulati this Court observed: "21. … There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. … 24. Hence, it is evident that there must be adequate evidence to show that at the relevant time i.e. at the initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The "failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term "misconception of fact", the fact must have an immediate relevance". Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her." (Emphasis supplied) 10. Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her." (Emphasis supplied) 10. In the present case, it reflects from the factual matrix of the matter that the physical relations between the prosecutrix and the accused developed on the basis of a promise to marry on the part of the accused applicant, which continued for about one year, but significantly, in the present case, this is not the accused applicant, who refused to marry with the prosecutrix, though alleged so in the F.I.R. The supplementary affidavit filed today consists of a specific averment that this is the prosecutrix, who had already performed her marriage with one Rizwan whereas the present applicant is still a bachelor and hence it cannot be said at this stage that the promise to marry was broken by the applicant himself. 11. In Sonu @ Subhash Kumar Vs. State of U.P. & Anr., 2021 0 Supreme (SC) 182, in almost similar circumstances where the parties, who were adult and had been in consensual relationship for about a period of one and a half years, it was found that there was no allegation to the effect that promise to marry given to the victim was false at inception, benefit was given to the main accused. 12. In Criminal Appeal No.257 of 2023, Naim Ahamed Vs. State (NCT of Delhi), 2023 LiveLaw (SC) 66 filed against conviction under Section 376 IPC, the Hon'ble Apex Court, reiterating the same principle, categorically observed that : "20. ... The bone of contention raised on behalf of the respondents is that the prosecutrix had given her consent for sexual relationship under the misconception of fact, as the accused had given a false promise to marry her and subsequently he did not marry, and therefore such consent was no consent in the eye of law and the case fell under the Clause – Secondly of Section 375 IPC. In this regard, it is pertinent to note that there is a difference between giving a false promise and committing breach of promise by the accused. In this regard, it is pertinent to note that there is a difference between giving a false promise and committing breach of promise by the accused. In case of false promise, the accused right from the beginning would not have any intention to marry the prosecutrix and would have cheated or deceited the prosecutrix by giving a false promise to marry her only with a view to satisfy his lust, whereas in case of breach of promise, one cannot deny a possibility that the accused might have given a promise with all seriousness to marry her, and subsequently might have encountered certain circumstances unforeseen by him or the circumstances beyond his control, which prevented him to fulfill his promise. So, it would be a folly to treat each breach of promise to marry as a false promise and to prosecute a person for the offence under Section 376. As stated earlier, each case would depend upon its proved facts before the court." 13. In the present case, the fact of submission of charge sheet into the court, does not certainly precludes the applicant to approach this Court for a protection by way of anticipatory bail. 14. In Sushila Aggarwal and others vs. State (NCT of Delhi) and another, (2020) 5 SCC 1 , the Hon'ble Apex Court has settled the controversy finally by holding the anticipatory bail need not be of limited duration invariably. In appropriate case, it can continue upto conclusion of trial. It has been further held therein that anticipatory bail granted can, depending on the conduct and behavior of the accused, continue after filing of the charge sheet till end of trial. It has been further held by the Hon'ble Apex Court that while considering an application for grant of anticipatory bail, the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence including intimidating witnesses, likelihood of fleeing justice, such as leaving the country, etc. It has further been held that 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. 15. It has further been held that 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. 15. Reiterating the principle above-mentioned, the Hon'ble Apex Court in Aman Preet Singh Vs. C.B.I. Through Director, 2021 SCC OnLine SC 941, while referring to a judgment of Delhi High Court in Court on its own Motion Vs. Central Bureau of Investigation, (2004) 72 DRJ 629 , held so in paragraph 11 of the aforesaid judgment. "11. ... Insofar as the present case is concerned and the general principles under Section 170 Cr.P.C., the most apposite observations are in sub-para (v) of the High Court judgment in the context of an accused in a non-bailable offence whose custody was not required during the period of investigation. In such a scenario, it is appropriate that the accused is released on bail as the circumstances of his having not been arrested during investigation or not being produced in custody is itself sufficient to entitle him to be released on bail. The rationale has been succinctly set out that if a person has been enlarged and free for many years and has not even been arrested during investigation, to suddenly direct his arrest and to be incarcerated merely because charge sheet has been filed would be contrary to the governing principles for grant of bail. We could not agree more with this." 16. Undoubtedly, it is a case of consensual relationship between two major persons. The applicant was not arrested during the course of investigation nor required to be taken into custody by the Investigating Officer and now after submission of charge sheet, no custodial interrogation is required. Hence, in the light of the aforesaid legal pronouncements and considering the facts and circumstances of the case, submissions of the learned counsel for the parties, nature of accusation, role of applicant, without expressing any opinion of the merits of the case, in my view, it is a fit case for anticipatory bail to the applicant till end of the trial in the matter. 17. The anticipatory bail application is allowed. 18. 17. The anticipatory bail application is allowed. 18. In the event of arrest of the applicant in the aforesaid case crime, he shall be released on anticipatory bail till end of the trial on his furnishing a personal bond of Rs. 50,000/-with two sureties each in the like amount to the satisfaction of the Court concerned with the following conditions :- (i) The applicant shall make himself available before the court concerned on the date fixed in the matter; (ii) The applicant 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 / her from disclosing such facts to the Court or to any police officer; (iii) The applicant shall not leave India without the previous permission of the Court and if he has passport, the same shall be deposited by him before the S.S.P./S.P. Concerned. 19. In case of default of any of the conditions, same may be a ground for cancellation of protection granted to the applicant.