Allahabad High Court
Abhhey Chopra vs State Of U.P. And Another on 13 February, 2020
Equivalent citations: AIRONLINE 2020 ALL 301
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 52922 of 2019 Applicant :- Abhhey Chopra Opposite Party :- State of U.P. and Another Counsel for Applicant :- Priyanka Midha,Ram M. Kaushik Counsel for Opposite Party :- G.A. Hon'ble Dinesh Kumar Singh-I,J.
1. Reply of the Affidavit of the complainant dated 22.01.2020 and Rejoinder-Affidavit have been filed from the side of applicant today and the same are taken on record.
2. Heard Sri Gopal Swaroop Chaturvedi, learned Senior Advocate assisted by Sri Ram M. Kaushik, learned counsel for the applicant, Ms. Sneh Jaiswal, Informant in person and Sri G.P. Singh, learned A.G.A. for the State.
3. This anticipatory bail application (u/s 438 Cr.P.C.) has been moved seeking bail in respect of F.I.R. dated 17.09.2019 arising out of Case Crime No. 1077 of 2019 under sections 376 and 120-B I.P.C., Police Station, Sector-49, Noida, District Gautam Budh Nagar during pendency of investigation.
4. In this case, interim anticipatory bail has already been granted to the accused applicant vide order dated 29.11.2019.
5. In affidavit filed on 22.01.2020 by the informant, she has stated that the applicant's counsel concealed the material facts and did not attach the relevant medical documents which clearly shows that the applicant had committed illegal activities with the informant due to which she had to get herself medically examined. Medical Officer as well as government doctors have not mentioned G2A1 in the medical prescription and in one prescription of Srijan Clinic, G1A0 has been mentioned which clearly shows that no abortion had been done in the past and the photo-copy of the same is annexed as Annexure-1. About six months had already passed and accused is still roaming free and giving threats to the informant directly as well as through text messages on 29.08.2019 and had exerted pressure upon her for abortion and had taken her forcibly to doctor on 30.08.2019. When the informant showed reluctance for abortion, she was forcibly taken to sign an MoU and stated that the applicant would not take any responsibility for his baby during the pregnancy of the applicant in future. The said MoU is annexed as Annexure-3 which is illegible. Further it is mentioned that the applicant is a hardened criminal.
6. In the Counter-Affidavit submitted on 25.01.2020, it is submitted from the side of informant who has appeared in person that the applicant has committed offence of rape upon the informant by giving her false promise of marriage with intention to sexually exploit her. The penetration has been done forcibly against her will when she approached to claim responsibility for the deed done by him. Applicant had forced the prosecutrix for abortion and at present she is six months pregnant with illegitimate child of the applicant. Further it is mentioned that any person meeting another person over Social Media (dating-site) will not amount to meeting that person with an intention to form a sexual intercourse. Merely a meeting on the basis of dating-site does not mean that the other person is open for sexual relationship and had given free consent to be sexually exploited as per will of other person. It would reveal from the bail application that from the very initial stage, there was intention to exploit the prosecutrix sexually while the informant was looking for long term relationship rather than short term one. Nowhere had the prosecutrix consented for forceful intercourse with the applicant. It was 04.08.2019 when the second meeting between the applicant and the prosecutrix took place when she was forcefully exploited by the applicant against her wish after which she had to visit the doctor on 6.08.2019 for medical help, the proof thereof is annexed as C.A.-1. It is further argued that even if the version of the defence be believed to be true that the relationship between the prosecutrix and the applicant had been consensual, the same was under the pretext of marriage that had been assured to the informant by the applicant and that there are a number of cases of Hon'ble Apex Court in which it has been held that sexual intercourse after attaining consent on false promise to marry, would amount to rape and reliance is placed upon the judgement passed by Hon'ble Apex Court in Anurag Soni Vs. State of Chattisgarh. Further it is argued that applicant never brought forth any concocted story nor did she mount any pressure upon the applicant rather it was the applicant who had forced the informant to meet him on 4.08.2019, thereafter, he forcefully and sexually exploited the informant. Thereafter the informant was threatened by the applicant and took the informant to various higher officials and even to a local lawyer i.e. Sukriti Bhushan who has a clout in the area and tried to put pressure upon informant to prevent her from giving any evidence against the applicant. It is further mentioned that after 04.08.2019 when prosecutrix had been raped by the applicant, the applicant stayed away from the informant which clearly shows that the applicant had only meant to sexually exploit her and not to take any responsibility of the outcome which also would constitute offence of cheating. It is true that prosecutrix had sent a report of her getting pregnant but with respect to the fact that the pregnancy had been shown to be G2A1 along with history of previous abortion, has been added by the doctor of Devansh Clinic against whom a complaint has been made to the Medical Council of India by her for medical negligence which is annexed as C.A.-2. The informant after getting herself examined from Devansh Clinic, also got herself examined from one Srijan Clinic on 12.11.2019 and a bare perusal of that report would reveal that she was found to be pregnant, the report of which is annexed as Annexure C.A.-3. Further informant has reiterated the version of F.I.R. in her statement under section 164 Cr.P.C. as well. Further it is argued that medical examination of the informant, documents regarding which is annexed at Annexure-7, was conducted upon the informant on 17.09.2019 and as such, after a considerable delay, no external injuries were visible to the doctor with regard to the pregnancy of the informant. The applicant has already brought forth the documents of AMYTRI Diagnostics and Healthcare, where the sonography of informant was conducted on 18.12.2019, documents regarding which are annexed as Annexure C.A.-4. Further it is mentioned that the informant, right from the beginning, was in search for a long term relationship which has duly been accepted and promise had been made by the accused to marry her.
7. Anticipatory Bail of the applicant had been rejected on the ground that the applicant, with intention to sexually exploit the prosecutrix, made sexual relationship with her against her wish which amounts to rape. Not only the act of rape was committed but she was also forcibly taken to a doctor to get the fetus aborted just to cover up the tracts by the applicant. Enormous pressure was exerted upon her to take back the case and life threats were also given to her. The act cannot be said to be done with free will as it came with a rider of a false promise to marry. Further it is mentioned that the applicant had met the accused on an on-line dating application which is used as a platform for the couples to get themselves introduced and the same cannot be said to be a platform by which any person can sexually exploit another person and neither does it mean that the person who is on the said on-line dating platform has given her consent for sexual relationship with another person. It is the case of the accused/applicant since the beginning that the informant was trying to milk out money from the applicant but the informant is carrying her pregnancy all alone bearing all her medical expenses without any financial aid from anyone, therefore the point of extortion is not made out. The applicant has committed immoral act of rape and has caused mental and physical agony to the informant, therefore, interim order granted earlier, deserves to be set-aside and the Anticipatory Bail Application deserves to be rejected.
8. From the side of applicant, submission made is that he is a qualified, educated person aged about 25 years who is permanent resident of New Delhi and is enrolled in his family business of manufacturing shoes. He does not have any criminal antecedents and pays Income-Tax return, details of which are annexed as Annexure-3. As per F.I.R., the applicant is said to have developed sexual relationship with the informant on making a false promise of marrying her between 2.08.2019 to 4.08.2019 and consequently the informant conceived.
9. Further it is alleged that the version that the applicant had given her an i-pill to abort the child conceived and that since the date of conception, the applicant along with other co-accused were constantly trying to coerce her to undergo abortion is a false narrative. The entire version of the F.I.R. is based on false and fabricated story with a view to falsely implicate the applicant and is trying to give colour to her nefarious design of extracting illegitimate money from the father of the applicant.
10. The correct version is that on 27.07.2019/28.07.2019, the applicant and informant got introduced to each other through online dating application known as 'Tinder' which is used for dating service which allows users/strangers to chat and after inducing themselves, both the parties are free to develop healthy future relationship accordingly. The present tactics of the informant is nothing but a harassment tactics as firstly they met online on 28.07.2019 and then in person on 2.08.2019 in NOIDA. Since the informant lives in NOIDA, Sector 51, she insisted upon the applicant to come to her for a meeting on 2.08.2019 as Logix City Centre. The actual series of events which culminated into developing consensual physical relationship is apparent from Whatsapp chat transcripts procured by the applicant from the mobile-phone, copy of which is annexed as Annexure-4. From the conversation/chatting, it is absolutely clear that at no point of time, the applicant forcibly tried to develop any sort of sexual relationship with the informant and the same was an act of consensual intercourse between two parties. It is revealed from the said transcripts that on the first date within three to four hours of developing a physical relationship, informant initiated a concocted story of having conceived and constantly mounted pressure upon the applicant. After the meeting on 2.08.2019, the applicant met the informant on 4.08.2019 and consciously booked OYO Town House at Sector-51, NOIDA for a night and spent couple of hours together. Post the meeting of 4.08.2019, the informant and the applicant as usual kept dating and did not meet each-other neither any endeavour was made from both the sides to keep in touch. It was on 28.08.2019 that the informant over Whatsapp, informed the applicant about her being pregnant. Additionally she in surreptitious manner sent a medical report of a private doctor indicating post pregnancy to the applicant which is report dated 28.08.2019 annexed as Annexure-5. The said report apparently specifies that the pregnancy is under the category which is biologically known as G/2-A1 pregnancy in medical terminology, is a fact which shows that the female being pregnant already with history of previous abortion. Applicant did not have any inclination to the illegitimate demand of the informant and then thereafter the informant appeared before the concerned magistrate on 14.10.2019 and got her statement recorded under Section 164 Cr.P.C., certified copy of which is annexed as Annexure-6. A perusal of the said statement would make it abundantly crystal clear that there are material contradictions between the F.I.R. and the statement given. It is allegedly mentioned in the statement that the applicant met the informant through On-line dating application (Tinder) and on 2.08.2019, the applicant forcibly tried to have a sexual relationship with her but was unsuccessful which annoyed the informant. However, it has been further alleged that on 4.08.2019, the prosecutrix voluntarily went to OYO Town House, Sector 51, NOIDA wherein on the basis of a false promise to marry, the applicant got involved in sexual intercourse with her which impregnated her, even when the applicant had given I-pill medicine.
11. It has been further stated that on 28.08.2019 about gathering knowledge of being pregnant, the applicant along with friend, Akash Goel attempted to convince the informant to abort her child. The material contradiction in the version between F.I.R. and the statement recorded under section 164 Cr.P.C. goes to show that the informant clearly tried to improve her case which makes her version highly improbable. Pursuant to the registration of F.I.R., the medical examination was also conducted of the informant which does not show any sign of forceful intercourse between him and the informant. It is mentioned in the medical examination report that the informant had refused to get any medical examination done that could establish any sort of pregnancy, documents regarding which is annexed as Annexure-7. The applicant has also brought on record the Whats-app transcripts of the chat which took place between the applicant and the informant on 2.09.2019, copy of the same is annexed as Annexure-8. A perusal of the entire document/conversation would reveal that applicant never extended any promise to marry the informant, therefore, it is absolutely concocted version that a promise was made by the applicant to marry the informant and developed sexual relationship with intention to marrying her. Considering the veracity of the F.I.R. and apprehending arrest, co-accused, Akash Goel had applied for anticipatory bail before the court below which was granted vide order dated 3.10.2019, true copy of the same is Annexure-9. Since the applicant is also apprehending arrest, hence, he also moved Anticipatory Bail Application before the court below on 18.10.2019 but the same was rejected. No ingredients of offence under section 376 I.P.C. or Section 120-B I.P.C. are made out as the consent accorded by the informant was unequivocal without there being any promise to marry her. There had been no misrepresentation on part of the applicant while getting involved in voluntarily sexual intercourse, hence the F.I.R. has been lodged with mala-fide intention. The informant is a 28 years' old lady. The applicant has deep root in society and there is negligible chance of his fleeing away from the process of law and he undertakes to assist in the trial/inquiry/investigation.
12. In a rejoinder-affidavit dated 13.02.2020, the averments made in the affidavit had been reiterated and the version of the informant had been denied. Similarly in Counter-Affidavit dated 13.02.2020 also, from the side of applicant, denial of the version of informant is made.
13. During oral arguments, learned senior counsel for the applicant has taken the court through Annexure-4 of the Affidavit which runs into 51 pages which is transcript of the chat held between the accused applicant and the informant of this case from 28.07.2019 to 12.09.2019 and it has been vehemently argued that entire tenor of chatting indicates extremely provocative and erotic from the side of informant which has been frequently responded by the accused but it was hammered that not even once had she ever mentioned during those chats that she wanted to marry the accused applicant nor even once was she shown to have proposed the accused for marriage and, therefore, it was argued that it was a consensual sexual relationship only for the satisfaction of physical needs that the relationship was established by the informant with the accused applicant, therefore, it would not fall in the category of rape under Section 376 I.P.C. Attention is also drawn of the Court towards the admission of this relationship being consensual as per averment made by the informant in her Affidavit dated 25.01.2020 that even if the version of the accused be taken to be true that relationship between the informant and the accused was consensual, the same would be treated to be rape because the said relationship was established by the accused giving false promise to the informant to marry her in view of the judgement of Hon'ble Apex Court in Anurag Soni Vs. State of Chattisgarh and various judgements. It was submitted that this averment would indicate that the informant does concede the point that the relationship between the informant and the accused was of consensual nature. It is further argued that the entire tenor of the chat would also show that both of them did not know each other at all not even had vaguest idea as to how did they look like and yet it was being stated that they indulged in sexual act with each other, therefore, the evidence which has come on record should at the most be taken to be of such a kind that suggests that the informant did give consent only for physical needs and there was no offer or promise made of any kind that applicant would marry the informant, pursuant to which such physical relationship was established and in view of this, the interim relief which has been was granted by this Court should be made absolute as no breach of the conditions laid down in the said order have been made.
14. From the side of learned A.G.A., Affidavit has been filed by Genda Ram, S.I. in which he has mentioned that in statement under Section 161 and 164 Cr.P.C., the informant had supported the prosecution version that on false pretext of marriage, the accused applicant sexually harassed the victim/informant due to which victim became pregnant and the accused had advised her for abortion, therefore, offence under Section 376 I.P.C. read with Section 120-B I.P.C. is made out. In the affidavit shown from the side of learned A.G.A., nowhere has it been mentioned that applicant was not cooperating with the investigation, so it is argued by learned counsel for the applicant that interim order granted earlier should be made absolute.
15. On the other hand, from the side of informant, she herself has vehemently argued that though the chat which has been annexed, does not indicate any proposal of marriage from either side but the accused had orally given her promise to marry her when they met each-other face to face. Pursuant to that only, she had conceded for sexual intercourse, hence in view of the above law laid down in Anurag Soni Vs. State of Chattisgarh, this case would fall in the category of offence committed under Section 376 I.P.C.
16. I would like to rely upon the law laid down in Pramod Suryabhan Pawar Vs. State of Maharashtra and another 2019 SCC Online SC 1073 wherein in para 22, following summary has been made:-
"22. To summarise the legal position that emerges from the above cases, the "consent" of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the "consent" was vitiated by a "misconception of fact" arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act."
17. The above position of law which is the latest judgement of Hon'ble Apex Court would reveal the correct position of law that in case a person gives false assurance that he would marry the victim and under that false promise, the victim concedes to have sexual intercourse, that would constitute offence.
18. In the case at hand, it is being said by the informant that she came in contact with the accused on a social site (tinder) and when they started chatting each-other and became friendly, a promise was made orally to her by the accused that he would marry her and pursuant to that only, she conceded for having sexual intercourse which led to her getting pregnant and now the accused has resiled from such promise which has led her to file this case under Section 376 I.P.C. The said version is being disputed by the side of defence stating that entire chat which has been annexed does not indicate even a whisper of talk between two that the accused had given any promise to marry her and the entire tenor of chat would indicate that it was highly erotic and both indulged in these activities of their own free will without intention of marriage only for sake of satisfying their physical needs and hence the same being consensual, would not fall in the definition of Section 376 I.P.C.
19. This Court is of the view that this is a matter of evidence as to whether there was consent given by the informant or not but tenor of the chat which has been gone through in depth by this Court would indicate that a doubt emerges in the mind as to when such a long chat used to be held between the two why nothing is being found therein indicating that any promise was made by the applicant to marry the informant before indulging in sexual activities.
20. Looking to the fact that till date no such report has been received from the side of I.O. indicating that the applicant has not cooperated with the investigation and taking into consideration the peculiar nature of this case, this is not found to be a case in which interim relief should be discontinued or the application of Anticipatory Bail should be rejected, therefore, the said order dated 29.11.2019 is made absolute.
21. In the event of arrest of the applicant, Abhhey Chopra involved in the aforesaid case, he shall be released on anticipatory bail till the submission of police report if any under section 173 (2) Cr.P.C. before the competent Court on his furnishing a personal bond of Rs. 50,000/- with two sureties each in the like amount to the satisfaction of the 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/them from disclosing such facts to the Court or to any police officer;
(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.
22. In default of any of the conditions, the Investigating Officer shall be at liberty to file appropriate application for cancellation of anticipatory bail granted to the applicant.
23. The Investigating Officer is directed to conclude the investigation of the present case in accordance with law expeditiously preferably within a period of three months from the date of production of a certified copy of this order independently without being prejudiced by any observation made by this Court while considering and deciding the present anticipatory bail application of the applicant.
24. The applicant is directed to produce a certified copy of this order before the S.S.P./S.P. concerned within ten days from today, who shall ensure the compliance of present order.
Order Date :- 13.02.2020 A. Mandhani