Abbas Ali vs State of Uttarakhand

LOK PAL SINGH, J. (ORAL)

Heard learned counsel for the parties. This bail application has been filed by the applicant for seeking regular bail in FIR/ Case Crime No.

0011/2018, under Sections 323, 419/ 376 of I.P.C. registered at Police Station Patelnagar District Dehradun.

The First Information Report was lodged by the complainant (named not being disclosed) with the averments that she is orphaned. Her parent died

long back and she was living with her brother and for maintenance of herself and brother she was doing typing work in the court compound Dehradun.

In the year 2013 a boy, namely Anil, who was working as an Advocate came to her and was taking some typing work he introduced himself as Anil to

the complainant and thereafter, he proposed to the complainant that he loved her and being Hindu. He wishes to marry with the complainant. Since

she was an orphaned and willing to take some assistance and believing on the statement of the accused, who called himself as Anil and also made

proposal to the applicant under the guise that he will marry with the complainant under the pretext of false assurance of marriage. He committed rape

with the complainant. Thereafter he continued relationship with the prosecutrix (victim) and got married according to the Hindu Rites and Rituals on

11.12.2017. At the time of marriage he also claimed himself as Hindu before priest and told his name as Anil. Subsequent thereto the complainant

came to know that the person with whom she got married is not in fact Anil rather he is Abbas Ali. He also tried to marry again with another lady and

she opposed it then she was beaten by the applicant. The applicant has been arrested and languishing in jail.

Learned counsel for the applicant would submit that since the marriage has been solemnized as per Hindu Rites and Rituals between the accused

and complainant on 11.12.2017 and the marriage between them has not been declared null and void by any competent authority of law, therefore, it

cannot be considered as a rape.

Learned counsel for the applicant further submitted that in view of the proviso 2 of Section 375 of I.P.C. The relationship between the applicant and

complainant was consensual and being wife he made physical relationship with the complainant.

Learned counsel for the applicant has placed reliance on the judgment of Hon’ble Apex Court in the case of Deepak Gulati vs. State of

Haryana reported in (2013) 7 SCC 675, the relevant paragraph of 21 is extracted hereinunder:-

“21. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by

deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a

case like this, the court must very carefully examine whether the accused 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 latter falls within the ambit of cheating or deception. 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 mis-representation 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.

An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had

clandestine motives.â€​

The first contention of learned counsel for the applicant that since the applicant got married with the complainant on 11.12.2017 and marriage has

not been declared null and void by any competent court, has not help to the applicant as a criminality has to be shown on the date of occurrence. Date

of occurrence of alleged rape is in 2013. Subsequent thereto on false pretext as it appears from the document the marriage was solemnized on

11.12.2017. On that day the applicant again proclaimed himself as Anil, which is Hindu name. He never disclosed this fact to the applicant on the date

of marriage. Thus, this ground is also not available to the applicant. Another ground raised by the learned counsel for the applicant that since the

complainant is the wife of applicant, therefore, it cannot be termed as rape.

Learned counsel for the applicant has argued that since the complainant is the wife of the accused, therefore, the proviso 2 of Section 375 of IPC,

is applicable, which only gives the protection to the legally married husband. In the present case, the applicant made physical relationship on

misrepresentation by making a statement that he is Hindu and will marry with the applicant. Thus, it cannot be considered as a free consent.

Learned counsel for the applicant would submit that the consent was free. The Hon’ble Apex Court in the paragraph 21 (surpa) has held that

whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence.

Since the perusal of the averments made in the FIR, it would reveal that the consent was not free and it was obtained on misrepresentation and

making the false statement that he was a Hindu and under this pretext she any how gave consent to make the physical relationship with the

complainant. The ratio of the judgment cited by the learned counsel for the applicant does not apply in the peculiar facts and circumstances of the

present case rather the observations made by Hon’ble Apex Court in judgment supra goes against the applicant.

An offence under Section 376 of IPC is a heinous crime, the Hon’ble Apex Court in the case of Anil Kumar Yadav vs. State (NCT of Delhi)

reported in (2018) 12 SCC 129, while considering the concept of bail has held that, while considering the question of grant of bail, court should avoid

consideration of details of evidence, as it is not a relevant consideration. What is necessary for the court to decide the bail application is whether a

prima facie case is made out or not.

In view of this Court that prima facie case for the offenses punishable under Sections 323, 419/ 376 of I.P.C. are serious in nature. The perusal of

the material available on record, it would further reveal that the accused is compelling the complainant to file application to withdraw the prosecution.

In case, the applicant is enlarged on bail then, he will succeed in pressuring the complainant to withdraw the prosecution and purpose of launching the

prosecution against the applicant by the complainant would frustrate. In view of this Court, the applicant is not entitled to be enlarged on bail.

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Thus, this Court does not find any ground to enlarge the applicant on bail. Therefore, the first bail application is rejected.