Keshar Singh Bagoria vs State Of Madhya Pradesh

This is first bail application filed by applicant Keshar Singh Bagoria under Section 438 of the Cr.P.C. for grant of anticipatory bail. The applicant apprehends his arrest in connection with Crime No.12/2019 registered at Police Station Bilkisganj, District Sehore for the offences punishable under Sections 376 and 506 of the IPC.

As per the prosecution case on 21/1/2019 prosecutrix lodged the report at Police Station Bilkisganj, District Sehore averring that the applicant has been sexually exploiting her from last 18 years and also threatened her.

Learned counsel for the applicant submits that the applicant has not committed any offence and has falsely been implicated in the offence. Prosecutrix was major. It is alleged that the applicant committed rape with the prosecutrix for the first time in the year 1999, while prosecutrix lodged the report in the year 2019. The applicant is ready to cooperate in the investigation and trial. In the event of arrest, his reputation will be ruined. Under these circumstances, applicant prays for grant of anticipatory bail.

Learned counsel for the State opposed the prayer and submitted that the applicant sexually exploited the prosecutrix, so he should not be released on bail.

In the case of Jayanti Rana Panda Vs. State of West Bengal, 1984 Cr.L.J.1535 the Calcutta High Court held "The failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not always amount to a misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. The matter would have been different if the consent was obtained by creating a belief that they were already married. In such a case the consent could be said to result from a misconception of, fact. But here the fact alleged is a promise to marry we do not know when. If a full grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact."

In the case of Uday Vs. State of Karnataka, AIR 2003 SC 1639 Hon'ble Apex Court also held that in a case of consensual sex on the promise of marriage two conditions must be fulfilled for the application of Section 90 IPC. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception.

In the case of Deepak Gulati vs. State of Haryana (2013)7 SCC 675 Hon'ble Apex Court held "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. 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".

From the above judgments of Hon'ble Apex Court and High Courts position that emerges on the point whether consensual sex on the promise of marriage can be called rape or not is that 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. But in such cases where the intention of the accused was mala fide, and that he had clandestine motives; where the accused right from the inception had mala fide intention ; made such false promise of marriage from the very beginning, in order to lure the victim to have sexual relations with him, such acts comes under the preview of rape.

In this case, also the prosecutrix was major and it is alleged that the applicant has been sexually exploiting her from the year 1999, while she lodged the report in the year 2019.

So, looking to the facts and circumstances of the case without commenting on the merits of the case, the application is allowed and it is directed that in the event of arrest of the applicant in connection with the aforesaid crime number, he be released on bail upon his furnishing personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousand Only) with one surety in the like amount to the satisfaction of the Arresting Officer for his regular appearance before the Police during the investigation or before the Court during trial.

This order will remain operative subject to compliance of the following conditions by the applicant :-

The applicant will comply with all the terms and conditions of the bond executed by him;

The applicant will cooperate in the investigation/trial, as the case may be;

The applicant will not indulge himself in extending 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 the Police Officer, as the case may be;

The applicant shall not commit an offence similar to the offence of which he is accused;

The applicant will not seek unnecessary adjournments during the trial; and

The applicant will not leave India without previous permission of the trial Court/Investigating Officer, as the case may be.

Certified copy as per rules.