Ravi Patel v. State of U.P

Court No. - 73 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 11212 of 2023 Applicant :- Ravi Patel Opposite Party :- State of U.P. Counsel for Applicant :- Anil Kumar Verma Counsel for Opposite Party :- G.A. Hon'ble Nalin Kumar Srivastava,J.

¶1Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.

¶2This application has been moved on behalf of the applicant - Ravi Patel seeking anticipatory bail in Case Crime No. 330 of 2023, under Sections 376, 506 IPC, Police Station-Shivpur, District-Varanasi.

¶3The major victim who have two children was committed rape by the present applicant and the offence continued for some time and subsequently marriage took place between two but she was deserted by the accused applicant. FIR was lodged on 16.7.2023 and investigation started, which is going on.

¶4It has been submitted by the learned counsel for the applicant that applicant is innocent and he has apprehension of arrest in the above-mentioned case, whereas there is no credible evidence against him. Allegations levelled against the applicant are false. Investigation is going on in the matter. It is further submitted the whole story of rape or forcible physical relation with the victim of this case is false and fabricated. It is also submitted that both the parties are major and the physical relations made and continued between them with the free will of both the parties. The victim in her statement under Section 161 and 164 Cr.P.C. has stated that her marriage has been performed with the present applicant. It is also submitted that as per averments mentioned in the FIR itself it reflects that the applicant has also solemnized marriage with the prosecutrix of this case. It is also submitted that the only allegations against the applicant is that he has deserted his wife/ victim. It is also submitted that he has been cooperative with the investigation of this case so far. He is having one solitary criminal history to his credit, which has been explained in the supplementary affidavit. In case applicant is granted anticipatory bail, he will not misuse the liberty of bail and would obey all conditions of bail.

¶5Learned A.G.A. opposed the prayer for anticipatory bail but however could not dispute this factual position that marriage has been taken place between the parties.

¶6In Anurag Soni v State of Chhattisgarh, (2019) SCC OnLine SC 509, this Court held: "37. The sum and substance of the aforesaid decisions would be that if it is established and proved that from the inception the accused who gave the promise to the prosecutrix to marry, did not have any intention to marry and the prosecutrix gave the consent for sexual intercourse on such an assurance by the accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact as per Section 90 of the IPC and, in such a case, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined under Section 375 of the IPC and can be convicted for the offence under Section 376 of the IPC."

¶7In Sonu @ Subhash Kumar Vs. State of U.P. & Anr., 2021 0 Supreme (SC) 182, in almost similar circumstances where the parties, who were adult and had been in consensual relationship for about a period of one and a half years, it was found that there was no allegation to the effect that promise to marry given to the victim was false at inception, benefit was given to the main accused.

¶8. In Criminal Appeal No.257 of 2023, Naim Ahamed Vs. State (NCT of Delhi), 2023 LiveLaw (SC) 66 filed against conviction under Section 376 IPC, the Hon'ble Apex Court, reiterating the same principle, categorically observed that : "20. ... The bone of contention raised on behalf of the respondents is that the prosecutrix had given her consent for sexual relationship under the misconception of fact, as the accused had given a false promise to marry her and subsequently he did not marry, and therefore such consent was no consent in the eye of law and the case fell under the Clause ? Secondly of Section 375 IPC. In this regard, it is pertinent to note that there is a difference between giving a false promise and committing breach of promise by the accused. In case of false promise, the accused right from the beginning would not have any intention to marry the prosecutrix and would have cheated or deceited the prosecutrix by giving a false promise to marry her only with a view to satisfy his lust, whereas in case of breach of promise, one cannot deny a possibility that the accused might have given a promise with all seriousness to marry her, and subsequently might have encountered certain circumstances unforeseen by him or the circumstances beyond his control, which prevented him to fulfill his promise. So, it would be a folly to treat each breach of promise to marry as a false promise and to prosecute a person for the offence under Section 376. As stated earlier, each case would depend upon its proved facts before the court."

¶9In Sushila Aggarwal and others vs. State (NCT of Delhi) and another, (2020) 5 SCC 1, the Hon'ble Apex Court has held that while considering an application for grant of anticipatory bail, the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence including intimidating witnesses, llikelihood of fleeing justice, such as leaving the country, etc. It has further been held that Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail, or refuse it. Whether to grant or not is a matter of discretion.

¶10In Siddharth Vs. State of Uttar Pradesh & Another, (2022) 1 Supreme Court Cases 676, the Hon'ble Apex Court has held that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it. If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the Investigating Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation, then there is no compulsion on the officer to arrest the accused.

¶11Considering the settled principles of law regarding anticipatory bail, submissions of the learned counsel for the parties, nature of accusation, role of applicant and all attending facts and circumstances of the case, without expressing any opinion of the merits of the case, in my view, it is a fit case for anticipatory bail to the applicant till filing of police report under Section 173(2) Cr.P.C. before the competent Court.

¶12The application is allowed accordingly.

¶13In the event of arrest of the applicant, he shall be released on anticipatory bail on his furnishing a personal bond of Rs.50,000/-with two sureties each in the like amount to the satisfaction of Station House Officer of the police station concerned with the following conditions:-

(i) The applicant shall make himself available for interrogation by a police officer as and when required.

(ii) The applicant shall not directly or indirectly, make any 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 any police office.

(iii) The applicant shall not leave India without the previous permission of the Court and if he has passport, the same shall be deposited by him before the S.S.P./S.P. Concerned.

¶14In case of default of any of the conditions, the Investigating Officer shall be at liberty to file appropriate application for cancellation of interim protection granted to the applicant. Order Date :- 22.11.2023 Fhd High Court of Judicature at Allahabad