Rajasthan High Court - Jodhpur
Deepak Sankhla vs State on 8 September, 2017
Author: P.K. Lohra
Bench: P.K. Lohra
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc. Bail No. 6345 / 2017
Deepak Sankhla s/o Late Shri Himmatsingh Sankhla, by caste
Mali, aged 31 years, resident of Sankhla Bhawan, Outside
Chandpole, Police Station Soorsagar, Jodhpur.
(At present lodged in Central Jail, Jodhpur).
----Petitioner
Versus
State of Rajasthan
----Respondent
_____________________________________________________
For Petitioner(s) : Mr. Mahesh Bora, Senior Advocate with Mr.
Arun Kumar.
For Respondent(s) : Mr. Ashok Upadhyay, Public Prosecutor.
For Complainant(s): Mr. Vikas Gaur.
_____________________________________________________
HON'BLE MR. JUSTICE P.K. LOHRA
Order 08/09/2017 Petitioner, Deepak Sankhla, facing imputations for offences under Section 376(2)(n) and 384 IPC, pursuant to investigation into FIR No.127/17, Police Station Chopasani Housing Board, Jodhpur, has laid this bail application under Section 439 Cr.P.C.
During investigation, considering the gravity and magnitude of offences slapped against petitioner being cognizable and non- bailable, he was arrested on 27 th of May, 2017. Upon completion of investigation, chargesheet is filed against the petitioner for the said offences.
(2 of 6) [CRLMB-6345/2017] Learned Senior Advocate, Mr. Mahesh Bora, submits that petitioner has been falsely implicated in the matter inasmuch as from a bare reading of FIR no offence is made out against him. Learned Senior Counsel has submitted that petitioner and complainant had courtship for quite some time which led to developing consensual relationship but after the break-up of that relationship and subsequent marriage of the petitioner, complainant has lodged FIR with inordinate delay for wrecking personal vengeance. Learned Senior Counsel would contend that in the event of consensual relationship per se offence of ravishing prosecutrix by the petitioner is not made out. Learned Senior Counsel has also argued that mere resile of the petitioner from promise to marry complainant after developing physical relationship, offence under Section 376(2)(n) IPC is not made out.
It is argued by learned Senior Counsel that though in the FIR complainant has insinuated the petitioner for blackmailing her after taking obscene photographs but during investigation no such objectionable material has come to the fore further strengthens petitioner's contention that entire story is based on fabricated and concocted facts. Learned Senior Counsel has also argued that a bare reading of statement of the complainant under Section 164 Cr.P.C. makes it abundantly clear that she has projected an embellished version and per se her revelations are not inspiring confidence. While referring to offence under Section 384 IPC slapped against the petitioner, it is submitted by learned Senior Counsel that requisite ingredients for constituting offence of extortion are conspicuously missing in the matter. Lastly, learned (3 of 6) [CRLMB-6345/2017] Senior Counsel would urge that after investigation charge-sheet in the matter has already been filed, therefore, it would not be appropriate to keep the petitioner under further incarceration. In support of his arguments, learned Senior Counsel has placed reliance on following legal precedents:
(1) Prashant Bharti Vs. NCT of Delhi (AIR 2013 SC 2753) (2) Anup K Pal Vs. State of Rajasthan & Anr. (2015 (3) Cr.L.R. (Raj.) 1491) (3) Order dated 6th of September 2017 passed in S.B. Criminal Misc. Petition No.1106/16 (Baldev Gora Vs. State of Rajasthan & Anr.
Per contra, learned Public Prosecutor Mr. Ashok Upadhyay has vehemently opposed bail application of the petitioner. It is submitted by learned Public Prosecutor that petitioner has exploited the complainant on the false pretext of marrying her and therefore keeping in view serious delinquencies for which he is chargesheeted, grant of bail in the matter is not desirable.
Learned counsel for the complainant, while reiterating submissions of learned Public Prosecutor, has urged that petitioner has sexually exploited the complainant by alluring her with promise of marriage, and therefore, offence under Section 376 IPC is clearly made out against him. It is also submitted by learned counsel for the complainant that if the bail plea of the petitioner is examined on the touchstone of relevant grounds and considerations for grant of bail, then per se no case is made out in his favour for its favourable disposition. In support of his submissions, learned counsel for the complainant has placed reliance on these judgments:
(4 of 6) [CRLMB-6345/2017] (1) Y.S. Jagan Mohan Reddy Vs. C.B.I. [(2013) 3 SCC (Cr.)552] (2) State of U.P through CBI Amarmani Tripathi [(2005) 8 SCC 21] (3) C.B.I. Vs. Vijay Sai Reddy [(2013) 7 SCC 452].
. I have given my thoughtful considerations to the arguments advanced by learned counsel for the parties and scanned the materials available on record.
At the outset, it may be observed that at the stage of consideration of bail application of an accused, prime concern of the Court is to examine the allegations and the evidence which has surfaced during investigation. It goes without saying that while examining bail plea of an accused person, Court is not expected to embark on merits of the case but for examining prima facie the available material. While it is true that petitioner is castigated by the complainant for offence of committing rape repeatedly, but then in her statements recorded under Section 164 Cr.P.C. she has very candidly stated that she had acquaintance with the petitioner since April 2016 which eventually culminated into physical relationship. Although she has made a specific allegation in her statements that she was offered cold drink and after consuming the same she became intoxicated and taking advantage of her semi-consciousness petitioner ravished her but her statements also fortify that thereafter physical relationship between them continued unabatedly. Undeniably, at the behest of complainant, the incident of April 2016 was not reported to police and further revelation of the complainant that (5 of 6) [CRLMB-6345/2017] later on physical relationship continued per force as the petitioner took her obscene photographs is prima facie not discernible from the evidence and other materials collected during investigation. It is also noteworthy that in the charge-sheet, petitioner is neither slapped with an offence under the I.T. Act nor for blackmailing her. The first incident of alleged offence of rape is of April 2016 and undeniably FIR in the matter has been lodged after lapse of more than a year, i.e., on 26th of May 2017, further persuaded this Court to believe that in continuing physical relationship complainant's consent was there, may be in a subtle manner. There remains no quarrel that when petitioner and complainant started courtship, both were mature inasmuch as petitioner was in his early thirties whereas complainant was in her late thirties, therefore, looking to the age of the complainant also, it appears prima facie unthinkable that he alone was responsible for their physical relationship or forced her for physical relationship. True it is that there were financial transactions between complainant and the petitioner but sans prima facie evidence that petitioner put the complainant in fear of some injury and thereby dishonestly induced her to deliver any property or valuable security, it is difficult to comprehend that solely on the basis of such insinuations petitioner is liable to be kept in custody.
Upon examining the matter in light of legal precedents on which learned counsel for the parties have placed reliance and taking into account the entire fact scenario, I am unable to subscribe this view that in case petitioner is bailed out, it would not be possible to secure his presence at trial. It may be (6 of 6) [CRLMB-6345/2017] observed that in absence of any reasonable apprehension that witnesses at the behest of petitioner can be tampered with or larger interests of public/State would be put to jeopardy, grounds for thwarting his bail plea per se appears to be irrelevant or facile. Moreover, no other criminal antecedents of the petitioner are discernible from the charge-sheet so as to cast a shadow of doubt on his character. Therefore, in totality, while refraining to make any comments on merits and clarifying that the observations made supra shall have no ramification on the trial of case, in the backdrop of facts and circumstances of the case, I feel persuaded to enlarge the petitioner on bail.
Accordingly, the bail application under Section 439 Cr.P.C. is allowed and it is ordered that accused-petitioner, Deepak Sankhla s/o Late Shri Himmatsingh Sankhla, arrested in connection with FIR No.127/17, Police Station Chopasani Housing Board, Jodhpur, may be released on bail; provided he furnishes a personal bond of Rs.50,000/- with two sureties of like amount to the satisfaction of learned trial Court with the stipulation to appear before that Court on all dates of hearing and as and when called upon to do so.
(P.K. LOHRA)J.