RAJEEV vs STATE OF JAMMU & KASHMIR AND ANOTHER

Petitioner has been arrested by the police for allegedly having committed offences punishable under sections 376 & 420 RPC registered as FIR No.

242/2017 of Police Station, Bishnah. The FIR has been registered on a direction under section 156(3) Code of Criminal Procedure (for short the Code)

issued on 01.08.2017 on a complaint lodged by a girl (hereinafter to be referred as the victim). The accusation leveled by the victim is that the

petitioner sexually assaulted her for 10 years under the pretext of marrying her and on 16.07.2017 refused to marry her. She has alleged also that the

petitioner and his parents, namely, Janak Raj and Neelam Kumari, cheated her by promising that the petitioner will marry her but they exploited her for

10 years.

This court in a petition under section 561-A of the Code filed by the petitioner has vide order dated 19.02.2018 stayed investigation in the FIR.

However prior thereto, the petitioner was arrested by the police on 30.01.2018. Petitioner has, therefore, filed this bail application.

It is contended by the petitioner that he has been falsely implicated by the victim and her parents. He never have had any affair, much less, any

physical relation, with the victim but she and her parents had been pressurizing him and his parents for the marriage and had openly threatened that

they will get him involved in a false case of rape if he does not marry the victim

Grant of bail to the petitioner has been resisted on behalf of the State as also by the victim. It is contended in the reply filed on behalf of the State

that the victim and the petitioner were known to each other and were in regular touch since long. The petitioner committed offence of rape under false

promise of marriage with the victim inasmuch as it has come in the investigation that the petitioner had earlier given 'Shagun' money to the victim in

presence of her mother. “In April 2014 accused called victim at the residence of her sister at Kheri Bishnah for attending marriage ceremony and

on this victim along with her mother visited at the residence of accused sister at Kheri where accused committed rape with her. As per the version

of the victim it has come to her notice that accused was going to solemnize marriage with other lady and when the victim asked the accused to fulfill

his promise, accused refused to do so and cheated her, during investigation offence u/s 420/376 RPC was proved against the accused.â€​   Â

Learned Senior Advocate, Mr. Sunil Sethi, appearing on behalf of the petitioner submitted briefly that the petitioner has been falsely implicated to

wreck vengeance on him for not having accepted the proposal for marriage with the victim and that even in view of the case set up by the victim

commission of rape or cheating is not constituted.Â

Per contra, the learned Senior AAG appearing on behalf of the State and learned Senior Advocate, Ms. Surinder Kour, appearing on behalf of the

victim, submitted that petitioner cannot be released on bail in view of the restriction imposed under section 497-C of the Code due to his involvement in

commission of offence of rape under section 376 RPC. It was argued also that petitioner is involved in commission of a heinous offence, he has

spoiled life and future of the victim and cannot claim release on bail.

Section 497-C of the Code, which has been inserted vide Act No. XI of 2014. provides, firstly, that no person accused of one of the offences

mentioned therein, including offence under section 376 RPC, shall be released on bail unless the public prosecutor has been given an opportunity of

being heard on the bail application and secondly, imposes a restriction on the discretion of the bail to grant him bail, if the court, on a perusal of the

case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation

against such person is prima facie true. This restriction has been imposed in addition to the other restrictions under the Code or any other law for the

time being in force. Section 497-C(1) and its proviso are relevant which reproduce for ready reference:

“497-C. Special provision regarding bail in certain offences against women etc.-(1) Notwithstanding anything contained in this Code no person

accused of an offence punishable under section 304-B, 326A, 370, 376, 376A, 376C, 376D or 376E of Ranbir Penal Code, shall if in custody, be

released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release:

Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made

under section 173 of the Code, is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie

trueâ€​Â

On a plain reading of Section 497-C (1), it would be clear that it does not provide for a blanket ban against grant of bail to a person involved in

commission of one or more of the offences mentioned therein. What it mandates is that bail shall not be granted to such a person, if there are

“reasonable groundsâ€​ for believing that accusation against him “is prima facie trueâ€​.Â

In the case on hand, the accusation clearly and precisely is that the petitioner indulged in physical relation with the victim under a false pretext of

marriage with her for a period of 10 years before he refused to marry her. It, however, is not denied that the victim at the relevant time was a grown

up girl and, in any case, it is not stated that she was less than 16 years at any relevant point of time. It is not alleged also that the acts of intimacy had

been committed by the petitioner forcibly or without consent of the victim. The accusation leveled by the victim does not indicate that the false

promise to marry her was made by the petitioner and/or his family members with the sole purpose of the petitioner establishing physical relation with

the victim. A false promise of marriage made only with the purpose of obtaining consent of a woman for sexual favour may, having regard to other

facts and circumstances of the case, amount to misrepresentation and consent so obtained may not exonerate a person from liability for commission of

the offence of rape.Â

Though it would not be proper to express any opinion at this stage in regard to commission of offence of rape or cheating by the petitioner, in the

facts and circumstances of the case a reference to legal position in such cases cannot be avoided.Â

In Uday’s case (supra), the Supreme Court has held as under:

“It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the victim to sexual intercourse with a

person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of

fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no strait

jacket formula for determining whether consent given by the victim to sexual intercourse is voluntary, or whether it is given under a misconception of

fact. In the ultimate analysis, the tests laid down by the Courts provide at best guidance to the judicial mind while considering a question of consent,

but the Court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case

has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact.

It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence,

absence of consent being one of them.â€​

In another case, DeepalGulhati v Stae,(2013)7 SCC 675 Supreme Court has held:

“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 victim 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.

In view of the legal position in the cases of like nature, restriction imposed under section 497-C of the Code will not strictly apply in the facts and

circumstances of this case. On the other hand, the petitioner, who is in custody from last about 2 months in a case in which investigation has been

stayed by this Court, is entitled to be released on bail at this stage.Â

Viewed thus, bail application is allowed, petitioner is admitted to bail and it is ordered that he be released from custody on furnishing a personal

bond in the amount of Rs.50,000/ along with a surety in the like amount to the satisfaction of the Registrar Judicial of this Court.