Rahul Raina vs Union Territory J&K

1 Instant application for grant of bail has been moved by the petitioner/accused whereby he has sought bailin the case arising out of FIR No. 190/2020

for offence under Section 376 IPC registered with Police Station, Katra

2 Briefly stated the case of prosecution is that on 20.11.2020, the prosecutrix lodged a written complaint with the Police of Police Station, Katra

alleging therein that the petitioner/accused, who is working with J&K Bank, gave a call to her on her mobile phone as she was having a Savings Bank

Account in the said Bank. According to the complaint, the petitioner remained in touch with the prosecutrix and had sexual relations with her at

Nagrota as well as at Kakrial, Katra. It was further averred in the complaint that the petitioner/accused had given assurance that he would marry her.

The complaint goes on to allege that the prosecutrix accompanied the petitioner/accused to Golden Temple, Amritsar for four days where he narrated

to her that he is unable to marry her and in case he marries her, he may get killed by someone. On the basis of this complaint, the Police registered

FIR No. 190/2020 for offence under Section 376 IPC and arrested the petitioner. During the course of investigation of the case, the statement of

prosecutrix under Section 164 Cr.P.C has been recorded and in her statement, she has supported the assertions made in the aforesaid complaint.

3 According to the petitioner, the allegations made in the FIR are vexatious and baseless and that no offence under Section 376 IPC is made out

against him. It is contended that, even if, it is assumed that there was any physical relationship between the petitioner and the prosecutrix, the same

was consensual. The petitioner has denied having made any false promise of marriage to the prosecutrix. It is averred that the prosecutrix is a

grownup girl, aged about 22 years and according to her, she has stayed with petitioner at Nagrota as well as at Amritsar for the last so many years, as

such, it cannot be stated that she was induced by the petitioner to have physical relationship with him on the assurance of marriage. The petitioner has

relied upon several judgments of this Court as well as of the Supreme Court in support of his assertion that no offence is made out against him on the

basis of allegations made in the FIR.

4 Per contra, learned AAG for respondent has vehemently contended that the petitioner has allured the prosecutrix to have sexual relationship on the

basis of a false promise of marriage. He has further contended that the prosecutrix has, while making her statement under Section 164 Cr.P.C,

reiterated the allegations against the petitioner and, as such, it cannot be stated that no offence is made out against the petitioner. According to the

learned AAG, keeping in view the gravity of offence and the public interest involved, the petitioner does not deserve the concession of bail.

5 I have heard learned counsel for the parties and perused the record of the case including the case diary.

6 From a perusal of the status report submitted by the respondent, it emerges that during the course of investigation of the case, it was found that the

petitioner was working in Jammu and Kashmir Bank, Branch SMVDU Kakryal from February 2018 till November, 2020 and he is presently posted at

J&K Bank, Branch Nagrota. It was also found that the prosecutrix was working in Shri Matavaishnodevi Naryana Hospital, Katra in synergy kitchen

from 14.01.2018 till 04.03.2019. The prosecutrix in her statement recorded under Section 164 Cr.P.C has stated that in the month of November, 2018,

she had opened an account in the Jammu and Kashmir Bank, Branch SMVDU Kakryal where the petitioner was working at the relevant time.

According to the prosecutrix, the petitioner used to call her and after about one month, he came to her rented room in Kakryal and told her that he

would marry her, whereafter he established physical relations with her. She further stated that in the monthof April 2019, the petitioner made her to

quit the job and asked her to move with him to his home at TRT Nagrota as his parents were staying away in Srinagar. She further stated that she

used to live with the petitioner at his home at Nagrota where he had physical relations with her and also made a promise of marrying her and during

this period, she also underwent miscarriage. She went on to state that in June 2019, she accompanied the petitioner to Golden Temple Amritsar where

they stayed for about 3-4 days and during this period also, the petitioner had sexual relations with her. According to the prosecutrix, she lived with the

petitioner at Nagrota for about 3-4 months and he promised her that when his parents would come back, he would talk to them about the marriage and

if they will not agree, he will commit suicide. The prosecutrix further stated that when she came to know that the petitioner is entering into wedlock

with some other girl, she narrated the whole story to her mother and lodged a written report with Police Station, Katra.

7 So far as the principles governing the grant or refusal of bail are concerned, the same are elucidated in a large number of judgements rendered by

the Supreme Court and our own High Court. These principles may be summarised as under:

i. The gravity of the offence and the nature of the accusation including severity of punishment in the case of conviction;

ii. The position and status of the accused vis-Ã -vis the victims/witnesses;

iii The likelihood of the accused fleeing from justice;

iii The possibility of the accused tampering with the evidence and/or witnesses and obstructing the course of justice;

iv The possibility of repetition of the offence;

iv The prima facie satisfaction of the Court in support of the charge including frivolity of the charge;

v Stage of the investigation;

vi Larger interest of the public or the State.

8 The guidelines relating to grant of bail have been laid down in Sections 437 and 439 of Cr.P.C. While in Section 437 Cr.P.C, certain restrictions and

conditions have been laid down for grant of bail by a Court, the power to grant bail under Section 439 Cr.P.C for the High Court or the Sessions Court

is wider.The overriding considerations in granting bail as laid down in Section 437 (1)and Section 439(1) of Cr.P.C, are the nature and gravity of the

offence, the frivolity or otherwise of the prosecution case, the position and status of the accused with reference to the victim and witnesses, the

likelihood of accused fleeing from justice, the chancesof repeating of offence by the accused, the chances of tampering with the witnesses, the stage

of investigation and the public interest.

9 The Supreme Court in the case of Mahipal vs. Rajesh Kumar and another, (2020) 2 SCC 118,while discussing the amplitude and power of the Court

under Section 439 Cr.P.C, has observed as under:

“The determination of whether a case is fit for the grant of bail involves the balancing of numerous factors, among which the nature of

the offence, the severity of the punishment and a prima facie view of the involvement of the accused are important. No straight jacket

formula exists for courts to assess an application for the grant or rejection of bail. At the stage of assessing whether a case is fit for the

grant of bail, the court is not required to enter into a detailed analysis of the evidence on record to establish beyond reasonable doubt the

commission of the crime by the accused. That is a matter for trial. However, the Court is required to examine whether there is a prima facie

or reasonable ground to believe that the accused had committed the offence and on a balance of the considerations involved, the continued

custody of the accused sub-serves the purpose of the criminal justice system.â€​.

10 From the aforesaid discussion of law on the subject, it is clear that while thenature of offence and severity of punishment is an important

consideration for considering the bail plea of an accused, a prima facieview of involvement of theaccused in the alleged crime is a factor which is also

required to be considered. On this aspect of the case, the learned counsel for the petitioner has highlighted the fact that the prosecutrix is a grown up

girl, aged about 22 years who is well aware of consequences of having a physical relationship with a boy prior to the marriage. The learned counsel

has contended that if a fully grown up girl consents to act of sexual intercourse on a promise of marriage and continues to indulge in such activities

until she becomes pregnant, it is an act of promiscuity on her part and not an act induced by misconception of facts. In order to buttress his point, the

learned counsel has relied upon the judgment of Supreme Court in the case of Jayanti Rani Panda vs. State of Bengal 1984 CrLJ wherein the Court,

on the facts of the said case, came to the conclusion that failure to keep the promise of marriage at a future uncertain date does not always amount to

a misconception of fact at the inception of the act itself.

11 Although, it would be premature for this Court to deeply analyse the material collected by the investigating agency in support its charge against the

petitioner, yet, for the limited purpose of deciding this application, it is necessary to take this material into consideration to test the merits of

submissions made by learned counsel for the petitioner.

12 It is clear from the material on record that the prosecutrix is a grown up girl, aged about 22 years. It is also an admitted fact that prosecutrix has

been in relationship with the petitioner since the year 2018 and has lived in company of the petitioner for several months during these years. The

prosecutrix has herself admitted in her statement recorded under section 164 Cr.P.C that she was living with petitioner at his home in Nagrota for

months together and that she accompanied the petitioner to Golden Temple, Amritsar for about 3-4 days in June 2019. It has also been admitted by her

that she enjoyed sexual relationship with petitioner and she became pregnant whereafter she underwent miscarriage as well..

13 The mystery that has to be unravelled by the investigating agency in such circumstances would be whether the consent of the prosecutrix to have

sexual intercourse with petitioner was a consensual and deliberate choice on her part or it was obtained on account of misconception of fact on the

basis of a false promise of marriage. This Court would not like to comment on this aspect of the matter at this stage, but then the material on record

does suggest that there was deep-seated love between the petitioner and the prosecutrix. The Supreme Court in the case of Uday vs State of

Karnataka, (2003) 4 SCC 46while considering the similar issue, made certain observations which are relevantto context of the present case. The same

read as under:

“It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come

what may, they will get married. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such

circumstances the promise loses all significance, particularly when they are over come with emotions and passion and find themselves in

situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. This is what appears

to have happened in this case as well, and the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she

was deeply in love, not because he promised to marry her, but because she also desired it. In these circumstances it would be very difficult

to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise.

In any event, it was not possible for the appellant to know what was in the mind of the prosecutrix when she consented, because there were

more reasons than one for her to consentâ€​.

14 For what has been observed by the Supreme Court in Uday’s case (supra), it becomes clear that for making out a charge of rape against an

accused, there has to be material to show that the prosecutrix had consented to sexual intercourse in consequence of a misconception of fact arising

from the promise of the accused.

15 At this stage it cannot be stated with certainty as to what was in the mind of the prosecutrix when she consented to have sex with the petitioner.

However, there is material on record to suggest that she was deeply in love with him and she had been in a kind of live in relationship with him. In

these circumstances, the veracity of the complaint will have to be thoroughly investigated. The conduct of the prosecutrix raises many questions and it

has to be ascertained during the investigation of the case whether there are ingredients of cheating.

16 Having regard to the long standing love affair between the prosecutrix and the petitioner coupled with the manner in which they have lived with

each other for months together, a prima facie case for grant of bail is made out. It is, however, made clear that the opinion expressed by this Court is

limited for the purpose of these proceedings and it shall have no bearing upon the merits of the case.

17 Apart from the above, the petitioner has been in custody for the last more than two months and by now, the investigation of the case must have

been completed. Denying the petitioner the concession of bail, in these circumstances, would amount to inflicting punishment upon him without trial

and the same may prejudice his right to prepare defence against the charge that has been laid against him. Further, there is nothing on record to even

remotely suggest that in case the petitioner is granted bail, he would be fleeing or thwarting the course of justice

18 For the foregoing reasons, the petition is allowed and the petitioner is admitted to bail subject to the following conditions:

(i) That he shall furnish personal bond in the amount of Rs.50,000/ with one surety of the like amount to the satisfaction of the learned trial court;

(ii) That he shall appear before the trial court on each and every date of hearing;

(iii) That he shall not leave the territorial limits of Union Territory of J&K without prior permission of the learned trial court;

(iv) That he shall not tamper with the prosecution witnesses.

19 Copy of this order be provided to the learned counsel for the petitioner through available mode and copy be also sent to the learned trial Court.