Nikhil Prasar v. State Govt. of N.C.T. of Delhi

V.K. JAIN,J FEBRUARY 1, 2010 bg

* IN THE HIGH COURT OF DELHI AT NEW DELHI + BAIL APPLN. No. 1745/2009 % Reserved on: 29th January, 2010 Date of Decision: 1st February, 2010 # NIKHIL PARASAR ..... Petitioners Through: Mr. R.S. Juneja, Adv. ! versus $ THE STATE GOVT. NCT OF DELHI ..... Respondent Through: Mr.Pawan Bahl, APP Ms. Ruchi Mishra for complainant. * CORAM: HON'BLE MR. JUSTICE V.K. JAIN 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in the Digest? : V.K. JAIN, J. 1. This is a petition under Section 438 of the Code of Criminal Procedure for grant of bail. The case of the prosecution, in a nutshell, is that the parents of the complainant/prosecutrix selected the petitioner through Internet in February, 2009 for marriage with the complainant/prosecutrix. The petitioner and the prosecutrix met face to face on 16th February, 2009, liked each other and agree for marriage. The family of the petitioner also accepted the prosecutrix for marriage with the petitioner. The prosecutrix and her family members then met the family members of the petitioner in Parikrima Hotel, Connaught Place, New Delhi. The prosecutrix was liked by the parents of the petitioner. In the end of March, 2009, when the petitioner was in Mumbai on an official tour, he persuaded the prosecutrix to come to Mumbai. The prosecutrix, accordingly, joined him and stayed with him in a hotel for 3-4 days. During night, the petitioner had sexual intercourse with the prosecutrix and he also assured her that he was going to marry her. Roka was, thereafter, held in Delhi on 3rd April, 2009. The petitioner then took the prosecutrix with him on 4th April, 1999 to Sailor Home, Vasant Kunj, on the pretext of celebrating Roka ceremony. They stayed there in the night intervening 4th April, 2009 and 5th April, 2009 and the petitioner again had sexual intercourse with the prosecutrix without her consent. She, however, did not report the matter to the police, since the petitioner told her that they were going to marry soon. The prosecutrix further claims that the petitioner again took her to the same place 3-4 times and again had sexual intercourse with her on the same pretext. Ultimately, the petitioner refused to marry the prosecutrix, leading to matter being reported to the police. 2. The first question, which comes up for consideration in this case, is as to whether having sexual intercourse with the prosecutrix, in the facts and circumstances of this case, amounts to committing rape or not. This issue came up for consideration before the Hon"ble Supreme Court in Deelip Singh Vs. State of Bihar 2004 (iv) Ad. Cri. (SC) 433. After examining case law on the subject, including its earlier decision in Uday vs. State of Karnataka 2003 (2) Scales 329, the Hon"ble Supreme Court, inter alia, observed as under: "it needs to be clarified that a representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent. If on the facts it is established that at the very inception of the making of promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of Section 375 Clause secondly." 3. In Yedla Srinivasa Rao vs. State of A.P. 2006 VIII AD (SC) 309, the Hon"ble Supreme Court, in the facts and circumstances of the case before it, found that the intention of the accused, right from the beginning was not honest and he kept on promising that he would marry her till she became pregnant. The Hon"ble Supreme Court then, inter alia, held as under: "This kind of consent obtained by the accused cannot be said to be any consent because she was under a misconception of fact that the accused intends to marry her, therefore, she had s