Sandeep Chaudhary v. State of U.P

Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 43119 of 2023 Applicant :- Sandeep Chaudhary Opposite Party :- State of U.P. Counsel for Applicant :- Rohit Singh,Amit Pratap Singh,Vijay Pratap Singh Counsel for Opposite Party :- G.A.,Anjit Kumar Verma Hon'ble Rajeev Misra,J.

¶1Heard Mr. Rohit Singh, the learned counsel for applicant, the learned A.G.A. for State and Mr. Achyut Ji Advocate, holding brief of Mr. Anjit Kumar Verma, the learned counsel representing first informant.

¶2Perused the record.

¶3This application for bail has been filed by applicant Sandeep Chaudhary seeking his enlargement on bail in Case Crime No. 548 of 2023, under Section 376-D, 406, 420 I.P.C., Police Station Kavinagar District Ghaziabad during the pendency of trial.

¶4Record shows that in respect of incidents which are alleged to have occurred from 11.04.2022 to 28.05.2023, a delayed F.I.R. dated 03.07.2023 was lodged by first informant Hemlata i.e. the prosecutrix herself and was registered as Case Crime No. 548 of 2023, under Section 420, 406, 376-D, 504, 506 I.P.C., Police Station Kavinagar District Ghaziabad (Commissionate). In the aforesaid F.I.R. three persons namely Sandeep Chaudhary (applicant herein), Pooja Chaudhary and Suraj Malik have been nominated as named accused, whereas, an unknown person has also been arraigned as an accused.

¶5The gravamen of the allegations made in the F.I.R. is to the effect that named accused Sandeep Chaudhary (applicant herein) is alleged to have extended a false promise of marriage to the prosecutrix. On the said false assurance the applicant is further alleged to have been taken a sum of Rs. 11 lacs from the prosecutrix. However, the applicant has neither returned the money taken by him from the prosecutrix nor has fulfilled the promise extended by him to the prosecutrix i.e. to solemnize marriage with the prosecutrix.

¶6After aforementioned F.I.R. was lodged, Investigating Officer proceeded with statutory investigation of concerned crime number in terms of Chapter XII Cr.P.C. He first recorded the statement of prosecutrix i.e. the first informant itself under Section 161 Cr.P.C., which is on record at page 28 of the paper book The prosecutrix in her aforesaid statement has not only supported the F.I.R. but has come up with categorical material in support of the F.I.R. Giving rise to the present criminal proceedings. Thereafter the prosecutrix was requested for her internal medical examination. The prosecutrix in her statement before the doctor, who medically examined her has rejoined her previous statement under Section 161 Cr.P.C. The doctor, who examined the prosecutrix, however, did not find any such injury on the body of the prosecutrix so as to denote commission of deliberate or forceful sexual assault. However, with regard to the private part of the prosecutrix, the doctor has opined as follows. "No any external mark of injury seen over the body at present and no any bleeding/tear/discharging/ocdine tandems P/v or P/S finding at present."

¶7Certain samples were collected from the body of the prosecutrix for pathological examination. However, according to the learned A.G.A. the results of the same are in negative. Ultimately the statement of the prosecutrix was recorded under Section 164 Cr.P.C. The same is on record at page 43 of the paper book. The prosecutrix in her aforesaid statement has reitereated her previous statement under Section 161 Cr.P.C. During course of investigation, Investigating Officer examined the following witnesses under Section 161 Cr.P.C:- Upendra, Rajpal Singh Deshwal, Prashant Kumar, Suraj Malik and Pooja Chaudhary. Witnesses so examined have substantially supported the F.I.R.

¶8On the basis of above and other material collected by the Investigating Officer, during course of investigation, he came to the conclusion that allegations made in the F.I.R. with regard to transfer of money and dislodging the modesty of the prosecutrix by extending false promise of marriage are fully established against the applicant. He, accordingly, submitted the charge sheet dated 03.08.2023, whereby, applicant has been charge sheeted under Sections 376-D, 406, 420 I.P.C, unknown has been charge sheeted under Sections 376-D, 406, 420 I.P.C, whereas the other two named accused namely, Pooja Chaudhary and Suraj Malik have been exculpated.

¶9Learned counsel for applicant contends that though applicant is a named and charge sheeted accused yet he is liable to be enlarged on bail. He invited the attention of Court to the F.I.R. On the basis of above, he contends that in the date and time column of the F.I.R.it is mentioned that the occurrence giving rise to present criminal proceedings are alleged to have occurred from 11.04.2022 to 28.05.2023. However, the F.I.R. was lodged on 03.07.2023. As such there is delay in lodging the F.I.R. However, the delay in lodging the F.I.R. has not been explained. He therefore submits that since, the delay in lodging the F.I.R. has not been explained, therefore, the prosecution of the applicant itself cannot be maintained.

¶10According to the leaned counsel for applicant the prosecutrix is major. She is a willing and consenting party. The bona fide of the applicant is explicit from the fact that as per the medical opinion no such injury was found on the body of the prosecutrix so as to denote commission of deliberate or forceful sexual assault. He, therefore, contends that since prosecutrix is major and she was in consensually relationship with the applicant, as such, no offence under Section 376 I.P.C. can be said to have been committed by the applicant as nothing was done by the applicant to forcefully dislodge the modesty of the prosecutrix.

¶11With regard to the bona fide of the applicant and his false implication in the crime in question, the learned counsel for applicant invited the attention of Court to the averments made in paragraph 16 of the affidavit filed in support of the present application for bail. He has then referred to the document occurring at page 83 of the paper book and on basis thereof, he contends that since a sum of Rs. 4 lacs were advanced by the applicant to the prosecutrix, and the prosecutrix has herself failed to return the said amount, consequently, in order to subvert the liability arising out of said payment, the present criminal proceedings have been engineered to falsely implicate the applicant in the crime in question.

¶12Per contra, the learned A.G.A. and learned counsel representing first informant have vehemently opposed the prayer for bail. They submit that admittedly, the applicant is a married man and, therefore, the promise made by the applicant to the prosecutrix i.e. he shall solemnize marriage with the prosecutrix was false from the very inception. Applicant is a hindu by religion. Until and unless, he got divorce from his first wife neither he could extend promise of marriage to the prosecutrix nor could he indulge in extra-marital relationship with the prosecutrix. The criminality committed by the applicant with the prosecutrix clearly falls in the realm of adultery, which is prohibited under the provisions of Section 13 of the Hindu Marriage Act.

¶13It is then contended that reliance placed by learned learned counsel for applicant upon the averments made in paragraph 16 of the affidavit and the supporting document occurring at page 83 of the paper book are misconceived. Amount of Rs. 4 lacs was given by the prosecutrix herself to the applicant and in lieu thereof, an affidavit was prepared whereby, the applicant acknowledged receipt of Rs. 4 lacs. They, therefore submits that in view of above, it cannot be said that the applicant has been falsely implicated in the crime in question so as to avoid the financial liability arising out of the advanced alleged to have been made by the applicant to the prosecutrix. With regard to the delay in lodging the F.I.R., the learned A.G.A. and the learned counsel representing first informant with reference to the material on record, submit that the cause of action for lodging the F.I.R. is not a singular act of the applicant but on account of repeated acts of applicant i.e. repeated cause of action. The prosecutrix in the F.I.R. which has been lodged by her though, has not specifically detailed the circumstances resulting in the delay in lodging the F.I.R., but in her statement under Section 161 Cr.P.C. has categorically stated that on account of assurance extended by accused on 28.05.2023 that the amount has been arranged and shall be returned to the prosecutrix, the prosecutrix believed the bona fide of the applicant and therefore, withheld the lodging of the F.I.R. On the above premise, it is urged by the learned counsel representing first informant as well as the learned A.G.A. there is no deliberate negligence or latches on the part of the first informant/prosecutrix. The prosecutrix bona-fidely believed the assurance given by the applicant with regard to return of money. However, when the applicant failed to fulfil the promise so made by him that the present F.I.R. was lodged. It is thus, contended that since there is no deliberate negligence or latches on the part of the first informant in lodging the F.I.R. therefore, the present criminal proceedings are clearly maintainable. On the above conspectus, it is thus urged by the learned A.G.A. as well as the learned counsel representing first informant that no good or sufficient ground is made out to enlarge the applicant on bail.

¶14When confronted with above, the learned counsel for applicant could not overcome the same.

¶15Having heard, the learned counsel for applicant, the learned A.G.A. for State and the learned counsel representing first informant, upon perusal of record, evidence, complicity of applicant and accusation made, the nature and gravity of offence coupled with the fact that though, applicant is a married man yet he extended the promise of marriage to the prosecutrix i.e. he shall solemnized marriage with the prosecutrix, during the subsistence of the marriage of the applicant he indulged in extra marital relationship with the prosecutrix, the prosecutrix was made to believe the bona fide of the applicant on account of his conduct, therefore, prima facie the promise made by the applicant to the prosecutrix that he shall solemnize marriage with the prosecutrix is false right from the very inception inasmuch as no divorce decree was granted in favour of the applicant before he entered into extra marital relationship with the prosecutrix or during the pendency of relationship, the judgments of the Supreme Court in

¶1Pramod Suryabhan Pawar Vs. State of Maharashtra (2019) 9 SCC 608.

¶2Sonu @ Shubash Kumar Vs. State of U.P. 2021 SCC Online SC 181.

¶3Maheshwar Tigga Vs. State of Jharkhand (2020) 10 SCC

108.

¶4Deepak Mandar Pawar Vs. State of Maharashtra 2022 LiveLaw (SC) 649.

¶5Naim Ahmad Vs. State (NCT of Delhi) 2023 SCC Online SC 89, the payment of the amount alleged in the F.I.R. is substantially through electronic mode, however, no document has been brought on record by the applicant in support of the bail application to establish that the amount alleged in the F.I.R. was not credited in the account of applicant, therefore, irrespective of the varied submissions urged by the learned counsel for applicant in support of the present application for bail, but without making any comments on the merits of the case, this Court does not find any good or sufficient good to enlarge the applicant on bail.

¶16In view of above, the bail application fails and is liable to be rejected.

¶17It is, accordingly rejected. Order Date :- 24.11.2023 Imtiyaz High Court of Judicature at Allahabad