Vikram Singh S/O Puran Singh Negi vs State Of Gujarat

Ilesh J. Vora, J

Apprehending the arrest, the applicant herein seeks pre-arrest bail under Section 438 of Cr.P.C. in connection with the FIR being C.R. No.11191030210055 of 2021 registered with Mahila Police Station (West), Ahmedabad for the offences punishable under Sections 376, 376(2)(n), 354, 354(A)(1)(i), 328 and 406 of IPC.

This Court has heard Ms. Megha Jani, learned advocate with Mr. Kshitij Amin, learned advocate for and on behalf of the applicant, Mr. Manan Maheta, learned APP for the respondent-State and the original complainant as a party-in-person.

The applicant has been charged with offences punishable under Section 376, 376(2)(n), 354, 328 and 406 of the IPC. According to the case of prosecution, the applicant herein alleged to have committed rape upon the victim-complainant against her will and without her consent. In January, 2020, victim and the applicant met in the Food Event for the first time. They exchanged their mobile numbers. In the event, the applicant introduced the victim to his family members. The victim was having food stall at the event, the family members of the applicant placed an order to buy pickle and accordingly, it was supplied by her. Thereafter, they were in constant touch either on mobile or whatsapp chat. The victim is unmarried and was in search of good person to settle by way of marriage. She had registered her name with matrimonial site and was in contact with suitable person also. Meanwhile, the applicant and victim exchanged their personal details. The applicant projected himself that his family life with his wife is not well and they are not in good terms. The applicant and victim came more close to each other and applicant shown his interest to live with the victim and win over the sentiments and sympathy of her and they were occasionally meet at the house of the applicant, however, they did not indulge in sexual intercourse. The victim was also interested to settle with the applicant. On 23.09.2020, the applicant called the victim at his home, where, both consumed drinks and on insistence of the applicant, she smoked the intoxicated substance “weed”, which also smoked by the applicant. It is alleged in the complaint that, after taking some of the puffs of the “weed”, she started spinning. The applicant herein asked for sexual favour which she had refused. Despite the resistance of the victim, the applicant indulged into sexual intercourse and on same night, again, he had forcefully maintain sexual intercourse with the victim. In these background facts, the victim made her protest by sending whatsapp messages which the applicant admitted that he should not have done the act. Thereafter, the applicant herein stopped to respond to the calls and whatsapp messages of the victim. The victim tried her level best to reconcile the situation, but, it could not resolved positively. In these circumstances, the victim lodged the written complaint alleging that at relevant point of time, she did not freely agreed to submit herself and there was no consent at all and the applicant herein cheated her to satisfy his lust and engaged in the sexual intercourse without her will and consent.

In the aforesaid facts, the applicant herein moved an application for anticipatory bail before City Sessions Court, Ahmedabad being Criminal Misc. Application No.6986 of 2021, which came to be rejected vide order dated 27.09.2021. The Sessions Court while rejecting the application observed that, despite of having a married person, the applicant told the victim that he will give divorce to his wife as he liked her and engaged into the sexual intercourse for which, there was no consent on her part as the act of rape was committed by administering stupefying drug like “weed”. The learned Sessions Court further observed that, the case is not exceptional one to exercise the discretion for grating pre-arrest bail and considering the facts and circumstances of the case, the application deserves to be rejected and accordingly, it was rejected.

Ms. Megha Jani, learned counsel for and on behalf of the applicant, submitted following submissions:

(i) Referring to the contents of FIR, it was submitted that, no offence whatsoever can be made out against the applicant and he has been falsely roped in the alleged offence with ulterior motive; the complainant is aged about 41 years and the applicant is married person and she knows all those things. Despite having knowledge about everything, she took participation in the alleged act. It was contended that, there is no allegation that the applicant under the guise of false promise to marry, maintain physical relationship. Therefore, in absence of any promise to marry and without having annulled the existing marriage of the applicant, it was not possible for him to have obtained the consent, wrongfully or by misrepresenting the facts as alleged, on the pretext of getting married. In these circumstances, it was urged that, question of taking advantage by misrepresenting and falsely induced the victim on the ground of marriage are baseless and devoid of any merit or truth. Thus, therefore, she urged that considering the facts of FIR and conduct of the victim, none of the ingredients of Section 375 of the IPC are attracted so as to make out a case of rape.

(ii) It is alleged that, by administering stupefying substance like “weed”, the applicant made sexual intercourse. In this context, she urged that, assuming for the sake of arguments, the allegations believed to be true, then at no point of time, she tried to leave the house when the applicant had gone to upstairs. Therefore, the victim was very much aware about the act done by the applicant and she was fully conscious. Hence, no offence under Section 376 is made out in the case and the applicant has been falsely implicated in this case and entire allegations as alleged are false and concocted.

(iii) She further submitted that, the alleged incident took place in the month of September-2020 for which she filed written complaint to the concerned authority on 01.06.2021 i.e. after delay of nine months, for which there is no reasonable explanation offered by her. Thus, the complaint is nothing but an afterthought to harass and defame the applicant with an ulterior motive to malign him and his family who having good reputation in the society. The applicant’s father was an I.A.S. Officer. The applicant after doing his graduation, completed his Post Graduation from I.I.M, Bangalore and worked with reputed companies and attended global conferences and at relevant point of time, he was working with Times of India Group as Response Head for Gujarat. In short, she urged that, the applicant hails from well educated family and having good reputation and does not have any past antecedents of like nature.

(iv) She further submitted that, the applicant herein cooperated with the investigation as directed by this Court. On the other hand, the victim has not cooperate with the investigating agency and therefore, the whatsapp chats, produced by the victim herein which is not part of the investigation, cannot be looked into by this Court while deciding the application.

In view of the aforesaid submissions, learned counsel for the applicant submitted that investigation is almost over and the applicant herein has cooperated throughout the investigation and have deposited his mobile phone for interrogation and therefore, if the application is allowed, then no prejudice will be caused to the investigation of the case and under such circumstances, there is no need for custodial interrogation of the applicant.

Learned counsel Ms. Megha Jani, in support of her submissions, placed reliance on the decision rendered by Hon’ble Supreme Court in case of Pramod Suryabhan Pawar vs. State of Maharashtra reported in (2019) 9 SCC 608, to submit that, when the victim participated in the alleged act with all understanding of circumstances and consequences of the act, then alleged sexual act will not amount to rape.

In the aforesaid contentions, learned counsel Ms. Jani prays that the discretion may kindly be exercised and the present application may be allowed.

Opposing the application, the complainant-party-in-person submitted that, she was not interested at all to marry with a married person and therefore, from the inception, she had said that, she is persuading for marriage with another guy. However, the applicant insisted that he will obtain divorce as they are incompatible and since long, they had not performed sexual relationship. In these circumstances, the applicant herein win over her trust and sympathy, as a result, they were continuously chatting on phone as well as whatsapp and personally met some times also. Reiterating the facts of the affidavit, she argued that, during the courtship period, the applicant herein so many times said that he likes her and before 23.09.2020, he never asked for sexual favour and therefore, she put trust on the applicant. It was submitted that, in the month of September-2020, she had been called by the applicant at his home and in night hours, despite her resistance, the applicant performed sexual act without her will and consent as the alleged act was performed under the effect of “weed” cigarette repeatedly. It was submitted that, after the alleged act, when she raised the objection on whatsapp, the applicant admitted that he should not have done the alleged act without her consent. The victim heavily relied on the whatsapp chat, to demonstrate that, there was no consent or will on her part for the alleged act. After, the incident, the applicant stopped to respond the messages and phone calls. She had tried her level best to resolve the issue, however, the wife of the applicant and family members did not pay any heed. She further submitted that the applicant is influential person and has not cooperated to the investigating agency, and, the investigation is still incomplete, therefore, considering the seriousness of the offence and the way in which it was committed by the applicant, his custodial interrogation is required to unearth the truth of the alleged act.

In the aforesaid contentions, the complainant-party-in-person prays that, as such, there is no delay in lodging the FIR. She was pursuing the matter with the family members of the applicant and due to influence of the applicant, the police authority has delayed in registering the FIR which facts can be inferred from the circumstances shown by her in the complaint. Thus, therefore, she submitted that, the learned Sessions Judge has assigned sound reasons while rejecting the application and as such, there is no ground exists to interfere with the meritorious order of rejection by this Court.

Mr. Manan Maheta, learned APP adopting the contentions raised by the complainant-party-in-person submitted that, the applicant failed to make out a special case for exercise of the powers to grant anticipatory bail and therefore, considering the conduct of the applicant, nature of offence, the application may be rejected.

Having considered the rival contentions and upon perusal of the material placed on record, it appears that, the applicant is charged with the offence of rape as referred above. It is not in dispute that, the applicant is a married person, whereas, the victim is unmarried and both have possess higher level of educational qualification. The victim was in search of good person for marriage for which talks were going on with another person, meanwhile, in a food festival, the applicant and victim accidentally met. It is to be noted that, at the instance of the applicant, the victim rejected the proposal of marriage and started taking interest in the applicant as he inspired confidence that he and his wife having not good terms and since long, they did not maintain sexual relationship. In these background facts, the victim had put trust on the applicant and they met on and often to understand each other so that further proceedings of marriage can be implemented. Learned counsel Ms. Megha Jani for the applicant strongly objected to consider the whatsapp chat mainly on the ground that, it is not part of the investigation. This Court is not agreed with the contention advanced by Ms. Jani, learned counsel of the applicant, as the investigation is not completed. The factum of whatsaap chat having not denied by the applicant and it is not the case of the applicant that, the conversation made by him on whatsapp chats were not sent by him. Therefore, at this stage, the factum of whatsapp chats for deciding this bail application can be looked into and accordingly, it is taken into consideration.

In view of the aforesaid facts, a bare reading of the complaint which runs into 15 pages and the conversation of whatsapp chats, it is evident that, the applicant being a married person, win over the trust of the victim and he had sexual intercourse and at relevant point of time, both have consumed puff of “weed” cigarette and according to version of the victim, the act was performed against the will and without her consent.

In order to bring home the charge of rape against the man, it is necessary to establish that sexual intercourse, complained of was either against the will or without her consent. Where consent is obtained under the circumstances enumerated under clauses 1 to 6 of Section 375, the same would also amount to rape. The term, against her will means intercourse was done by a man with a woman despite her resistance and opposition. On the other hand, without her consent, would comprehend an act of reason, accompanied by deliberation (Dilipsingh Vs. State of U.P. reported in 2013 (14) SCC 331). Therefore, consent under Section 375 requires voluntary participation, not only after exercise of intelligent based on the knowledge of the significance and moral quality of the act, but, after fully exercise the choice between resistance and assent. Whether there was consent or not is to be ascertained only on a careful study of all relevant circumstances.

In the facts of the present case, as analyzed hereinabove, prima-facie, this Court is of the opinion that, alleged act complained of was done against will and without her consent as submission by her under the influence of “weed” cigarette and upon the assurance given by the applicant and same facts admitted by the applicant that he should not have done the alleged act.

In the aforesaid facts, as discussed hereinabove, there is a reasonable ground to believe that the applicant herein committed an offence. Considering the contents of FIR and material placed on record, it cannot be said that, the accusations have been made only with the object of injuring or humiliating the applicant by arresting him and he has been falsely roped in the alleged offence. The applicant herein seeking his pre-arrest bail invoking extra ordinary jurisdiction of this Court. The discretion under Section 438 cannot be exercised with regard to offences punishable under death or imprisonment for life unless the Court at that very stage is satisfied that such a charge appears to be false or groundless. Therefore, the power under Section 438 is of an extraordinary character and must be exercised sparingly in exceptional cases only.

In light of the settled law and considering the nature, gravity of offence as well as role of the applicant herein and having regard to the facts and circumstances of the case, the applicant failed to make out a special case for exercise of powers to grant bail and therefore, without commenting on the merits of the case, this Court do not find any exceptional grounds to exercise its discretionary jurisdiction to grant anticipatory bail and accordingly the application is liable to be rejected.

This Court has not delve into merits of the matter and views expressed in the order, are prima-facie only.

In the result, the application fails and is hereby rejected. Rule is discharged. Interim relief stands vacated forthwith.

(ILESH J. VORA,J)

Further Order

After pronouncement of the order, Mr. Amin, learned advocate for the applicant submits that interim relief may kindly b- -e continued for a period of 15 days, so as to enable the applicant to file further proceedings.

Considering the observations made hereinabove, request of Mr. Amin, learned advocate for the applicant, is not considered.