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Delhi High Court - Orders

Gaurav Kumar vs State Nct Of Delhi on 20 July, 2021

Author: Yogesh Khanna

Bench: Yogesh Khanna

                                $~27
                                *    IN THE HIGH COURT OF DELHI AT NEW DELHI
                                +    BAIL APPLN. 3618/2020
                                     GAURAV KUMAR                                    ..... Petitioner
                                                       Through : Mr.Ajay Kumar Jha, Advocate.
                                                       versus
                                     STATE NCT OF DELHI                              ..... Respondent
                                                       Through : Mr.M.S.Oberoi, APP for State.
                                                                   Complainant in person.
                                     CORAM:
                                     HON'BLE MR. JUSTICE YOGESH KHANNA
                                                       ORDER

% 20.07.2021

1. The hearing has been conducted through Video Conferencing.

2. This petition is filed for grant of regular bail to the petitioner in case FIR No.277/2020 dated 26.07.2020 under Section 376 IPC registered at PS Maurya Enclave, Delhi. The petitioner is in custody since 26.07.2020 i.e., almost a year. The chargesheet in the present case was filed on 23.09.2020.

3. The brief facts as alleged in the FIR are the complainant/prosecutrix claimed to be introduced to petitioner through Shaadi.com website in November, 2018. Both of them became friends and it is alleged the petitioner made false promises to marry her and took her from Cannaught Place on 05.05.2019 to a hotel at Paharganj, Delhi and entered into physical relation with her and later he called the prosecutrix at Lal Kuan, Ghaziabad and made physical relations with her.

4. The petitioner introduced the prosecutrix with her family. The family of the petitioner initially agreed for their marriage, but after using the prosecutrix for physical relations, the petitioner herein backed out from his promise to marry her on the plea his family is making demand of dowry of Rs.15.00 lacs, which the prosecutrix was unable to pay.

5. The learned APP for the State submits the offence is serious in nature as the life of the prosecutrix has since been spoiled by the petitioner and hence bail should not be granted to the petitioner.

6. The learned counsel for the petitioner however submits the prosecutrix had concealed the factum of filing a complaint against the petitioner at Ghaziabad, which was later withdrawn by her on 09.03.2020 stating, interalia, she does not want to keep any relation with the petitioner herein or with his family members and does not wish to take any action against him. The said statement of the prosecutrix was in her hand writing; given in presence of her sister namely Poonam, annexed at page no.43 of the paper book.

7. Further on record there is a report filed by SI Joginder Kumar of PS Mohan Nagar, Ghaziabad to the Superintendent of Police, Ghaziabad stating interalia the prosecutrix has withdrawn her compliant by saying since she was rejected by the family members of the petitioner, she became angry and had levelled the allegation against the petitioner herein and she later withdrew her complaint and shall not have any connection with the petitioner's family members.

8. The learned counsel for the petitioner submitted besides concealing the filing of the above complaint at Ghaziabad and its withdrawl, the prosecutrix also failed to get herself medically examined in the present FIR. Further there is a delay of more than a year in lodging the FIR which is fatal to the case of the prosecution. He relied upon various judgments and orders of Co-ordinate Bench of this Court as also of the Hon'ble Supreme Court to prove his point.

9. In Kunal vs. The State BAIL APPLN.2730/2018 decided on BAIL APPLN. 3618/2020 Page 2 of 6 Signature Not Verified Digitally Signed By:VIJAYA LAKSHMI DOBHAL Signing Date:23.07.2021 13:39 13.12.2018 the Co-ordinate Bench of this Court granted bail in a case of alleged false pretext of marriage when the accused had entered into physical relationship with the prosecutrix and had refused to marry her or refused to return the articles given to him in roka ceremony.

10. In Pankaj vs. State Govt. of NCT Delhi BAIL APPLN.339/2016 decided on 08.03.2016, the applicant who was in custody for two months in a similar matter was granted bail.

11. In Prem Prakash Choudhary vs. State BAIL APPLN.157/2018 decided on 24.01.2018 the Court held as follows:

"14. No doubt, the allegations made against the petitioner are very serious in nature, but severity of allegations is not the only consideration which should result in grant or denial of bail. The totality of the circumstances has to be seen before a person is granted or admitted to bail.

15. In the instant case, assuming that the allegations against the petitioner are correct, at best, a case of consent of the complainant having been obtained on the pretext of marriage would be made out. It may also be noticed that FIR has been lodged on 28.12.2017 relating to incidents, which allegedly occurred as far back as in April, 2016. The complainant alleges to have gone on a sightseeing trip to Kangra in January 2016. The complainant is alleged to have continued her relationship with the Petitioner even after the alleged incident of giving an intoxicant in Soup. The complainant does not deny having written the note on 15.10.2017, wherein the alleged incident of petitioner giving intoxicant in a soup is stated to have happened in January 2016 in Kangra. Though the contention is that the note was written on the dictation of a police officer, there is no such mention in the FIR which is lodged on 28.12.2017 and further no complaint about the same was made till 22.01.2018 after the first listing of this petition."

12. In Bhushan Lal Khanna vs. State (Govt. of NCT of Delhi) 253 (2018) DLT 173 the Court granted anticipatory bail on the ground the allegations involved require evidence.

13. In State vs. Sandeep in CRL.L.P.532/2019 decided on 25.09.2019 the Court held as follows:

"21. Inducement to have a physical relationship by promising marriage must have a clear nexus with the moment promise of marriage cannot be held out as an inducement for engaging in sex over a protracted and indefinite period of time. In certain cases, a promise to marry may induce a party to agree to establish sexual relations, even though such party does not desire to consent to the same. Such inducement in a given moment may elicit consent, even though the concerned party may want to say no. Such false inducement given with the intention to exploit the other party would constitute an offence. However, it is difficult to accept that continuing with an intimate relationship, which also involves engaging in sexual activity, over a significant period of time, is induced and involuntary, merely on the assertion that the other party has expressed its intention to get married."

14. In Nirmal Vaid vs. State of NCT of Delhi in BAIL APPLN.1760/2012 vide order dated 07.01.2013 the Court held it is not expected of the complainant who appears to be a well enlightened lady, running a dance studio, to submit herself to have sexual relationship with the petitioner just on the alleged promise of marriage made by the petitioner that too not in Delhi alone but also in Jaipur and Dehradun, where she had accompanied the petitioner.

15. Further in Vikas Bhushan vs. State (NCT of Delhi) in BAIL APPLN.2340/2020 decided on 10.09.2020 the Court held as follows:

"14. Upon a conspectus of the foregoing, what weighs with this court is firstly, that the case arises from a long-standing and evidently consensual relationship between two well-educated adults; secondly, that the allegation of 'false' promise of marriage or deception remains to be proved during trial since, even the FIR records that the marriage proposal was raised by the applicant with the complainant's parents, who also subsequently visited to meet the applicant's parents in Ranchi; thirdly, that the FIR came to be registered soon after the complainant learned of the applicant's marriage to a third person but not before; and lastly, that charge-sheet in the matter has been filed after completing investigation, and that therefore, no purpose in aid of investigation will be served by detaining the applicant in prison any longer."

16. Further in Bhushan Malik vs. State (Government of NCT of Delhi) 2018 (3) JCC 1680 the petitioner was granted bail when there was a delay of BAIL APPLN. 3618/2020 Page 4 of 6 Signature Not Verified Digitally Signed By:VIJAYA LAKSHMI DOBHAL Signing Date:23.07.2021 13:39 three months in reporting of the incident to the police. In Pramod Suryabhan Pawar vs. State of Maharashtra and Another (2019) 9 SCC 608 the Court held as follows:

"xxxxxxx......The false promise itself must be of immediate relevance, or bear a direct nexus to the women's decision to engage in the sexual act"

17. In Maheshwar Tigga vs. State of Jharkhand (2020) 10 SCC 108 the Court held the consent given in misconception is no consent in the eyes of law but misconception of fact has to be in proximity of time to occurrence and cannot be spread over a period of four years as in the present case.

18. Coming to the facts of the case viz the first alleged incident of rape was on 05.05.2019 and second incident on 14.02.2020 yet the FIR was registered on 20.07.2020 i.e. approximately after a year of first incident hence there was a considerable delay in lodging of FIR; there was also a concealment of factum of filing and withdrawing of similar complaint against the petitioner at Ghaziabad; the chargesheet has since been filed in September 2020; the allegations require evidence, thus considering his custody the petitioner herein, being behind the bars for an year now, I admit the petitioner herein on bail on his executing a personal bond of Rs.20,000/- with one surety of like amount to the satisfaction of the learned Trial Court/Duty MM/Jail Superintendent. The petitioner is directed not to contact/threaten/intimidate the prosecutrix in any manner whatsoever, lest it shall be a ground for cancellation of bail. The petitioner is further directed to furnish his contact/address details to the Investigating Officer/SHO concerned and shall keep his mobile location app open at all time.

19. The petition stands disposed of along with pending application(s).

20. A copy of this order be communicated to the learned Trial Court/Jail BAIL APPLN. 3618/2020 Page 5 of 6 Signature Not Verified Digitally Signed By:VIJAYA LAKSHMI DOBHAL Signing Date:23.07.2021 13:39 Superintendent for information and compliance.

YOGESH KHANNA, J.

JULY 20, 2021 DU BAIL APPLN. 3618/2020 Page 6 of 6 Signature Not Verified Digitally Signed By:VIJAYA LAKSHMI DOBHAL Signing Date:23.07.2021 13:39