Pankaj Kumar vs State Of Himachal Pradesh

Rakesh Kainthla, J

The petitioner has filed the present petition for seeking pre-arrest bail. It has been asserted that an FIR No. 40 of 2023, was registered against the petitioner at Women Police Station, Baddi on 30.09.2023 for the commission of an offence punishable under Section 376 of IPC. The FIR is false. The petitioner is apprehending his arrest in connection with the FIR. The petitioner is a respectable person of the society. He would abide by all the terms and conditions, which may be imposed by the Court. Hence, the petition.

The petition is opposed by filing a status report asserting that the victim made a complaint to the Police that the petitioner assured the victim that he would marry her and enter into sexual relations with her. She became pregnant thrice but was persuaded to abort the fetus by the petitioner who said that he would marry her subsequently. The petitioner threatened to upload the video of the victim on the internet. The matter was reported to the police. The petitioner promised before the police that he would marry the victim. The petitioner married someone else and did not fulfil his promise. He raped the victim on the pretext of the marriage. The police registered the FIR and conducted the investigation. The police prepared the challan and presented it before the Court. No recovery is to be effected from the petitioner.

I have heard Mr. Hemant Kumar Sharma, learned counsel for the petitioner and Mr. Jitender Sharma, learned Additional Advocate General for the respondent/State.

Mr. Hemant Kumar Sharma, learned counsel for the petitioner submitted that the petitioner was falsely implicated. The relationship between the parties, if any, was consensual and no case of rape is made out; therefore, he prayed that the present petition be allowed and the petitioner be released on bail.

Mr. Jitender Sharma, learned Additional Advocate General for the respondent/State submitted that the petitioner had entered into sexual relations with the victim on the pretext of marriage. He did not fulfil his promise. Therefore, a case for the commission of rape is made out. The offence is heinous and the petitioner is not entitled to pre-arrest bail; hence, he prayed that the present petition be dismissed.

I have given considerable thought to the submissions at the bar and have gone through the record carefully.

It was laid down by the Hon’ble Supreme Court in P. Chidambaram vs. Directorate of Enforcement 2019 (9) SCC 24 that the power of pre-arrest is extraordinary and should be exercised sparingly. It was observed:

“67. Ordinarily, arrest is a part of the procedure of the investigation to secure not only the presence of the accused but several other purposes. Power under Section 438 Cr.P.C. is an extraordinary power and the same has to be exercised sparingly. The privilege of pre-arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; the possibility of the applicant fleeing justice and other factors to decide whether it is a fit case for grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the court must be circumspect while exercising such power for the grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of rule and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy.”

The victim had categorically stated that she had entered into a relationship with the petitioner when the petitioner promised to marry her. The petitioner did not fulfil his promise. He married somewhere else. This clearly shows that the petitioner had made a promise to marry the victim which was not fulfilled. It was laid down by Hon’ble Supreme Court in Naim Ahamed v. State (NCT of Delhi), 2023 SCC OnLine SC 89: 2023 Criminal Law Journal 2585 that when a person enters into a sexual relationship with a woman with the promise to marry her without any intention to fulfil his promise, the same would amount to a rape. In the present case, the petitioner had entered into sexual relations with the victim by promising to marry her and there is nothing on record to show that he was prevented from fulfilling the promise due to circumstances beyond his control; therefore, prima facie, a case for the commission of an offence punishable under Section 376 of IPC is made out against the petitioner.

The petitioner is seeking pre-arrest bail. It was laid down by Hon’ble Supreme Court in Ms X versus State of Maharashtra and another, 2023 STPL 3386 SC:2023(2) Crimes 66 (SC)] that pre-arrest bail should not be granted in an offence punishable under Section 376 of IPC. It was observed:

Surprisingly, none of the aforesaid aspects have been touched upon in both the impugned orders. The nature and gravity of the alleged offence has been disregarded. So has the financial stature, position and standing of the accused vis-a-vis the appellant/prosecutrix been ignored. The High Court has granted anticipatory bail in favour of the respondent No. 2/accused in a brief order of three paragraphs, having been swayed by the 'star variations in the narration of the prosecutrix' implying thereby that what was originally recorded in the FIR, did not make out an offence of rape, as defined in Section 375 IPC, which is an erroneous assumption. Even if the first Supplementary statement of the appellant/prosecutrix recorded in the evening hours of 6th August 2022, the date on which the FIR had been registered against the respondent No.2/accused in the first half of the same day, her second Supplementary statement recorded on 6th September 2022 and the Medico-Legal Report of the doctor who had examined the appellant/prosecutrix on 8th August 2022, are kept aside for a moment, we find that there was still sufficient material in the FIR that would prima facie attract the provision of Section 376, IPC. In our opinion, these factors ought to have dissuaded the High Court from exercising its discretion in favour of respondent no. 2/accused for granting him anticipatory bail.

Therefore, in view of the binding precedents of the Hon’ble Supreme Court, the petitioner is not entitled to pre-arrest bail.

Final Order:

Consequently, the present petition fails and the same is dismissed.

The observation made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.