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2023 DIGILAW 2049 (ALL)

Kaushal Anand v. State of U. P.

2023-08-24

NALIN KUMAR SRIVASTAVA

body2023
JUDGMENT : 1. Counter affidavit filed on behalf of the informant/opposite party no.2 is taken on record. 2. Apprehending his arrest in Case Crime No.568 of 2023, under Sections 323, 328, 376, 506 IPC, Police Station Quarsi, District Aligarh, the present anticipatory bail application has been moved on behalf of the applicant Kaushal Anand seeking anticipatory bail. 3. Heard learned counsel for the applicant, learned A.G.A. for the State as well as learned counsel for the informant/opposite party no.2 and perused the record. 4. Prosecution story as unfolded in the F.I.R. is that the applicant developed family relations with the prosecutrix and after administering some intoxicant in the cold drink, he committed rape with her on 19/20.4.2022 and subsequently on so many occasions the prosecutrix was physically exploited by the applicant. Concealing his marital status, the applicant used to insist the prosecutrix to get married with him and during the sequence of events, he also assaulted the prosecutrix as a result whereof she sustained injuries and the applicant also procured some obscene photos and videos relating to the prosecutrix and used it as a tool to blackmail her. An F.I.R. was lodged on 23.6.2023 and investigation started, which is going on. 5. It has been submitted by the learned counsel for the applicant that applicant is innocent and he has apprehension of his arrest in the above-mentioned case, whereas there is no credible evidence against him. Allegations levelled against the applicant are false. He has been falsely implicated in this case. It is further submitted that the F.I.R. of this case has been lodged very belatedly without any plausible explanation of delay. It is further submitted that it is a case of consensual relationship where the major prosecutrix with her own will and consent made physical relations with the applicant and a huge monetary help was also offered by the applicant to her. It is further submitted that they have been in sweet and close relations with each other and only to grab the money from the applicant, F.I.R. has been lodged on the basis of false and fabricated facts. It is further submitted that they have been in sweet and close relations with each other and only to grab the money from the applicant, F.I.R. has been lodged on the basis of false and fabricated facts. It is further submitted that the anticipatory bail application was moved before the Sessions Court by the applicant on 27.6.2023, which was rejected by the Court on 18.7.2023, but in the meanwhile, during the interregnum period, a process under section 82 Cr.P.C. was also issued against the applicant under the instructions of the Court on 11.7.2023 and the applicant, as such, was not a willful defaulter. It is further submitted that a twisted story has been averred by the prosecutrix in her statement under section 164 Cr.P.C. It is also submitted that on the alleged dates of rape and physical exploitation, the applicant and prosecutrix were staying happily together and relevant photographs have been annexed with the affidavit. It is also submitted that the medical report of the prosecutrix is a suspicious piece of evidence and she has refused for her internal examination by the doctor. It is further submitted that as a matter of fact, opposite party no.2 herself has played fraud with the Government and an F.I.R. was lodged against her as case crime no.362 of 2021 under sections 177, 420 IPC by the District Program Coordinator, District T.B. Disease Centre, Aligarh. It is further submitted that during the course of investigation, an application along with affidavit was given to S.S.P., Aligarh by one Priyanka Chauhan, who is said to be the friend of the prosecutrix, wherein she has narrated the factum of a friendly live-in relationship between the applicant and the prosecutrix herself. It is further submitted that the criminal history of the applicant has been duly explained and as such he is entitled for anticipatory bail. In support of his submissions, reliance has been placed upon the decision of the Hon'ble Apex Court in Ansaar Mohammad Vs. The State of Rajasthan and Anr., 2022 LiveLaw (SC) 599, by the applicant. 6. Per contra, learned A.G.A. as well as learned counsel for the informant/opposite party no.2 opposed the prayer for anticipatory bail and it has been submitted that by concealing his marital status, the accused applicant started making physical relations with the prosecutrix, which shows his fraudulent intention towards the victim of the case. 6. Per contra, learned A.G.A. as well as learned counsel for the informant/opposite party no.2 opposed the prayer for anticipatory bail and it has been submitted that by concealing his marital status, the accused applicant started making physical relations with the prosecutrix, which shows his fraudulent intention towards the victim of the case. Being a family person, he could not legally marry with the prosecutrix, but concealing the material facts, the accused applicant made an insistence upon the prosecutrix to marry with him and developed physical relations and committed rape upon her after administering some intoxicant to her. It is further submitted that since the very inception of the relationship the accused applicant had never any intention to marry with the prosecutrix. It cannot be termed as a case of consensual physical relationship between two major persons of opposite sex. It is further submitted that on few occasions, the applicant transferred some money in the bank account of the prosecutrix to show a different colour of his relationship with her, but as soon as this fact came to the knowledge of the prosecutrix, she immediately transferred the same amount in the bank account of the applicant and statement of account in this respect has been annexed with the counter affidavit filed by the opposite party no.2 herself. It is also submitted that as the applicant has been a willful defaulter and a process under section 82 Cr.P.C. was issued against him under the instructions of the Court, an F.I.R. under section 174-A IPC was also lodged against the applicant by reason of his abscondence. It is further submitted that after rejection of the anticipatory bail application by the Sessions Court, Aligarh, the prosecutrix was threatened by the applicant and he also made some obscene photographs relating to the prosecutrix viral on social media and an F.I.R. as case crime no.719 of 2023 under section 507 IPC and section 67 of Information Technology Act was also lodged against him on 23.7.2023. It is also submitted that when the prosecutrix was bitterly beaten by the applicant, she was medically examined and injuries were found over her body. It is further submitted that the proceedings in pursuance to the F.I.R. dated 3.4.2021 lodged against the opposite party no.2 are stayed by the Hon'ble Apex Court in S.L.P. No.7636 of 2021 vide order dated 8.10.2021. It is further submitted that the proceedings in pursuance to the F.I.R. dated 3.4.2021 lodged against the opposite party no.2 are stayed by the Hon'ble Apex Court in S.L.P. No.7636 of 2021 vide order dated 8.10.2021. It is further submitted that the offence is very heinous in nature and on the basis of the evidence collected during the course of investigation so far, active role in the commission of the offence on the part of the applicant is established and he is not entitled for anticipatory bail. 7. It is in the backdrop of the aforesaid factual scenario and the consideration of the rival submissions made by both the sides, the present matter has to be looked into. 8. The statement made by the victim under Section 164 Cr.P.C. recorded before a Magistrate on a sexual offence undoubtedly stands on a different footing than that of recorded under Section 161 Cr.P.C. by the Investigating Officer of the case. The sanctity of the statement recorded under Section 164 Cr.P.C. has been emphasized by a coordinate Bench of this Court in Dharmendra @ Patra Vs. State of U.P. (Order dated 1.10.2021 passed in Criminal Misc. Bail Application No. -31695 of 2021) by holding as follows : "11. The statement made by the prosecutrix/victim under Section 164 of the Code before the Magistrate stands on a high pedestal and sanctity during the course of investigation than that of her statement recorded under section 161 of the Code by the Investigating Officer." 9. In the light of the aforesaid observation, it is found that in the case in hand, not only in her statement under Section 161 Cr.P.C., but in the statement under Section 164 Cr.P.C. as well the prosecutrix, who is said to be a model, has avowed consistently the whole story and sequence of incidents in respect of the commission of the crime alleged against the applicant and has narrated how rape was committed to her by the applicant after administering some intoxicant in the cold drink to her and pretending himself to be a bachelor he, subsequently on many occasions, physically and mentally exploited her and also made an assault upon her and his marital status subsequently came to the knowledge of the prosecutrix. As a married person having his wife and two children, the applicant was never in a position to marry with the prosecutrix, but the concealment of his marital status from the victim of the case and making physical relations with her is a discernible fact that since the very inception, he never intended to marry with the prosecutix and with malafide motives he was only fulfilling his lust. 10. The Hon'ble Supreme Court in Dr. Dhruvaram Murlidhar Sonar Vs. The State of Maharashtra & Ors., 2019 0 AIR (SC) 327 had an occasion to deal with the subject under consideration and it was held: "20. Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the later falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. 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 the misconception created by 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. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 of the IPC." 11. The same view was reiterated by the Hon'ble Supreme Court in Pramod Suryabhan Pawar Vs. State of Maharashtra and Anr., AIR 2019 Supreme Court 4010 wherein the legal dictum on the subject was affirmed by holding that : "14. In the present case, the "misconception of fact" alleged by the complainant is the appellant's promise to marry her. The same view was reiterated by the Hon'ble Supreme Court in Pramod Suryabhan Pawar Vs. State of Maharashtra and Anr., AIR 2019 Supreme Court 4010 wherein the legal dictum on the subject was affirmed by holding 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 : ( AIR 2019 SC 1857 ) 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 Sections 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 : ( AIR 2013 SC 2071 ) : "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…" 15. In Yedla Srinivasa Rao v State of Andhra Pradesh, (2006) 11 SCC 615 : (AIR Online 2006 SC 40, para 13), the accused forcibly established sexual relations with the complainant. When she asked the accused why he had spoiled her life, he promised to marry her. On this premise, the accused repeatedly had sexual intercourse with the complainant. When the complainant became pregnant, the accused refused to marry her. When she asked the accused why he had spoiled her life, he promised to marry her. On this premise, the accused repeatedly had sexual intercourse with the complainant. When the complainant became pregnant, the accused refused to marry her. When the matter was brought to the panchayat, the accused admitted to having had sexual intercourse with the complainant but subsequently absconded. Given this factual background, the court observed: "10. It appears that the intention of the accused as per the testimony of PW 1 was, right from the beginning, not honest and he kept on promising that he will marry her, till she became pregnant. This kind of consent obtained by the accused cannot be said to be any consent because she was under a misconception of fact that the accused intends to marry her, therefore, she had submitted to sexual intercourse with him. This fact is also admitted by the accused that he had committed sexual intercourse which is apparent from the testimony of PWs 1, 2 and 3 and before the panchayat of elders of the village. It is more than clear that the accused made a false promise that he would marry her. Therefore, the intention of the accused right from the beginning was not bona fide and the poor girl submitted to the lust of the accused, completely being misled by the accused who held out the promise for marriage. This kind of consent taken by the accused with clear intention not to fulfil the promise and persuading the girl to believe that he is going to marry her and obtained her consent for the sexual intercourse under total misconception, cannot be treated to be a consent…." The Hon'ble Apex Court further held that – "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." 12. 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." 12. The same principle of law was reiterated recently by the Hon'ble Supreme Court in Naim Ahamed v State (NCT of Delhi), 2023 LiveLaw (SC) 66 (Criminal Appeal No.257 of 2023 arising out of SLP (Crl.) No.8586 of 2017 dated 30.1.2023. 13. In almost similar matter wherein the prosecutrix, who happened to be a model by profession, was suppressed by the masculine power of the accused forcefully and rape was committed to her and she was also assaulted under the threatening to make a compromise with the accused to get success in the modelling profession, the Hon'ble Apex Court in a recent judgment passed in Mr. X versus State of Maharashtra and another, 2023 (124) ACC 673, quashed and set-aside the orders granting anticipatory bail to the accused under Sections 354, 354B, 376, 506 IPC. 14. The legal dictum enumerated in the aforesaid decisions of the Hon'ble Supreme Court squarely applies in the facts and circumstances of the case in hand, which negates the prayer of the present accused applicant for grant of anticipatory bail to him. 15. Reliance has been placed upon Ansaar Mohammad (supra) case on behalf of the applicant, but the facts of the aforesaid case differ from the present one, as the aforesaid case was relating to a relationship between two major persons of opposite sex and it was held that the complainant had willingly been stayed with the appellant and continued with the relationship and since the relationship was not working out, it was held that it was no ground to lodge an F.I.R. for the offence under Section 376 (2) (n) IPC, but the elements of seducement, concealment of marital status with ulterior motive on the part of the accused and commission of rape upon the victim by adopting deceitful means present in the case in hand, were missing in the case above-mentioned. Hence, the ratio of law enumerated in Ansaar Mohammad (supra) is deducible from the application of law applicable to the peculiar facts and circumstances of the present case. 16. Hence, the ratio of law enumerated in Ansaar Mohammad (supra) is deducible from the application of law applicable to the peculiar facts and circumstances of the present case. 16. The issuance of process under Section 82 Cr.P.C. resulting into lodging of the F.I.R. under Section 174-A IPC against the present applicant on account of his abscondence is another factum which the learned A.G.A. has made a ground of assailment to the present anticipatory bail application. 17. Contending to that, counsel for the applicant has made a specific but however, oral submission that anticipatory bail was moved by the applicant before the Court of Session on 27.6.2023, which was rejected by the Sessions Court on 18.7.2023, but during the pendency of the said anticipatory bail application, a process under Section 82 Cr.P.C. was issued against him on 11.7.2023, which was certainly against the provisions of law and the scheme of personal liberty guaranteed to him by the Constitution as well and lodging of an F.I.R. under Section 174-A IPC in furtherance of the punitive action taken against the applicant was also a glaring example of misuse of power by the investigating agency which was fully aware of the fact of pendency of anticipatory bail application before the Court of law. 18. Further, it was submitted that in view of pending application for grant of anticipatory bail, it was not justified for the court concerned to pass an order to issue a process under Section 82 Cr.P.C. against the applicant, but in my view even on this ground if this Court considers the anticipatory bail application moved by the applicant, the merits of this case restrict this Court to lean its discretion in favour of the applicant and to grant anticipatory bail to him. 19. In Sushila Aggarwal and others vs. State (NCT of Delhi) and another, (2020) 5 SCC 1 , the Hon'ble Apex Court has held 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. 20. Adverting to the peculiar facts and circumstances of this case, the Court finds that offences of such nature cannot be confined to affect the life and dignity of the prosecutrix of this very case only, but in such type of cases, a larger public interest is always involved. Highlighting the need to analyze the matters of such type in this perspective, the Hon'ble Apex Court in Pratibha Manchanda & Anr. Vs. State of Haryana & Anr., 2023 SCC OnLine SC 785 expressly held as under : "19. The relief of Anticipatory Bail is aimed at safeguarding individual rights. While it serves as a crucial tool to prevent the misuse of the power of arrest and protects innocent individuals from harassment, it also presents challenges in maintaining a delicate balance between individual rights and the interests of justice. The tight rope we must walk lies in striking a balance between safeguarding individual rights and protecting public interest. While the right to liberty and presumption of innocence are vital, the court must also consider the gravity of the offence, the impact on society, and the need for a fair and free investigation. The court's discretion in weighing these interests in the facts and circumstances of each individual case becomes crucial to ensure a just outcome." 21. Hence, considering the settled principles of law regarding anticipatory bail, submissions of the learned counsel for the parties, nature of accusation, role of applicant and all attending facts and circumstances of the case, without expressing any opinion of the merits of the case, in my view, it is not a fit case for anticipatory bail to the applicant. 22. The anticipatory bail application is rejected.