Delhi High Court
Cdr. Kalesh Mohanan vs State on 17 August, 2021
Equivalent citations: AIRONLINE 2021 DEL 1308
Author: Yogesh Khanna
Bench: Yogesh Khanna
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on : 03rd August, 2021
Delivered on : 17th August, 2021
+ BAIL APPLN. 2500/2021 and Crl.M.(Bail).No.939/2021
CDR. KALESH MOHANAN ..... Petitioner
Through : Ms.Geeta Luthra, Sr Advocate
with Ms.Shivani Luthra Lohiya,
Mr.Nitin Saluja, Ms.Asmita
Narula and Ms.Sasha Maria Paul,
Advocates.
versus
STATE ..... Respondent
Through : Mr.Sanjeev Sabharwal, APP with
WSI Urmila, PS Tilak Marg for
the State.
Mr.Krishan Kumar, and
Mr.Shivam Bedi, Advocates for
complainant.
Complainant in person.
CORAM:
HON'BLE MR. JUSTICE YOGESH KHANNA
YOGESH KHANNA, J. (Though Video Conferencing)
1. This petition is filed under Section 438 Criminal Procedure Code
(hereinafter referred as Cr P C) for anticipatory bail to petitioner in case
FIR No.100/2021 registered under Section 376/328/506 IPC at police
station Tilak Marg against him on the complaint of the prosecutrix.
2. The allegations are the petitioner - an officer in Indian Navy - on
the pretext of marriage had committed sexual intercourse with the
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Signature Not Verified
Digitally Signed By:VIJAYA
LAKSHMI DOBHAL
Signing Date:17.08.2021 16:44
prosecutrix in the second week of December 2019 at Kota House, New
Delhi. In December 2019, the petitioner took the prosecutrix to Varuna
Mess where they had dinner. The petitioner gave cold drink mixed with
sedatives to prosecutrix which she consumed and felt dizzy. She wanted
to go to her home, but he took her to his Room No.55 at Kota House and
gave her a tablet/medicine. After 10-15 minutes, she became unconscious
and when she woke up next morning she realised she was raped. Being
confronted, he told her he is in love with her. She left the room weeping.
Next day he again called and tried to repeat the act, but she refused.
Thereafter, they went for shopping for his mother etc.
3. It is alleged from December 2019 to January 2020 he has been
calling the prosecutrix at Kota House, having physical relations on
promise of marriage. After January 2020, he went to Kolkata for training
with a promise to return after 2-3 months, but did not return, nor had any
talks. She smelt of his bad intentions and hence on 27.03.2021 she
reached Kannur, Kerala to meet him. She was adjusted by him in Guest
House of Indian Naval Academy, Kerala. On 28.03.2021 she asked the
petitioner to marry but he started shouting on her and said he did it only
for fun. When the prosecutrix threatened to lodge a complaint, he told her
he had her nude photographs and video recordings at Kota House and he
shall upload the same on internet and shall ruin her career. Nevertheless,
the prosecutrix met his mother on 29.03.2021 and requested her to
intervene. The mother of the petitioner assured her to reason with her
son. The prosecutrix returned to Delhi on 30.03.2021 but was under
immense depression, trauma because of the misdeeds of the petitioner
and allegedly his mother. On 15.06.2021, she came to know of his
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Digitally Signed By:VIJAYA
LAKSHMI DOBHAL
Signing Date:17.08.2021 16:44
marrying with another girl at Kerala with whom he had a love affair since
long and even was engaged with her prior to March 2021. Later she saw
his marriage photograph on his mobile display picture and immediately
lodged the present complaint on 19.06.2021, which culminated into this
FIR.
4. A bare perusal of the petition, however, reveal both were only
friends and she was obsessed with the petitioner and wish to extract
money from him as has always been saying she and her family are in
financial hardship. The petitioner denied any physical relations with her.
He alleged the prosecutrix could not have entered Varuna Mess, as is
solely for Indian Navy officers. However, the petitioner admitted in
January 2020 he travelled to Kolkata with a lay-over at Delhi on both
ways as there was no direct flight from Kannur to Kolkata. He alleged
around March - April 2020, the prosecutrix started calling and insisting
him to marry her, but the petitioner did not echo her sentiment. Further,
in September 2020 prosecutrix started communicating with him on the
pretext of mutual interest in history but the petitioner's stand was he
would not indulge in any relationship with her and was only interested in
marrying a suitable girl from Kerala. He has also alleged she has been
making repeated demands to transfer money to her bank account, but he
showed his inability and then she came to Kerala in March 2021
unannounced on the pretext of an official work and intimated him upon
her arrival at Kannur Airport. He got her adjusted in the Guest House of
Indian Naval Academy, but did not engage in physical relations. She
left Kannur, Kerala on 30.03.2021 and thereafter the petitioner did not
speak to her on phone till from the date she left Indian Naval Academy.
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LAKSHMI DOBHAL
Signing Date:17.08.2021 16:44
Rather she was making calls to him instigating him to marry her, but he
refused. On his refusal she became angry and started bombarding him
with calls and messages. On 24.06.2021, the petitioner came to know
about the registration of this FIR through newspaper; hence moved an
application for bail before the learned Session's Court which was
dismissed.
5. It is argued by the petitioner both of them are empowered person
- she being an highly educated lady; both were on talking terms for the
1½ years from the date of first alleged incident; she never filed any FIR
between December 2019 to January 2020; thus there is a considerable
delay. Further, she being an educated lady knew as to what she was
doing and the petitioner being an officer in Indian Navy has roots in the
society, be granted anticipatory bail and he shall join the investigation as
and when called for by the Investigating Officer of this case.
6. In support of her submissions, the learned senior counsel for the
petitioner relied upon Shiv Chander vs State of NCT of Delhi & Another
Bail Application No.254/2021 decided on 21.01.2021; Rajesh Patel vs
State of Jharkhand (2013)3 SCC 791; Jagdish Nautiyal vs State Bail
Application No.1317/2012 decided on 29.11.2012; and Rohit Chauhan
vs. State of NCT of Delhi 2013 SCC Online Del 2106 to say there is much
delay in lodging of the FIR hence petitioner is entitled to anticipatory
bail; secondly she referred to Arif Iqbal @Imran v. State (2009) 164
DLT 157; Madhav Krishna Vasave vs The State of Maharashtra 2021
SCC Online Bom 833; Dr.Sandeep Mourya v. State Bail Application
No.838/2021 decided on 22.03.2021; and Prashant Bharti v. State (NCT
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of Delhi) (2013) 9 SCC 293 where giving of sedatives to prosecutrix did
not find favour with the Courts and accused were granted anticipatory
bail(s). She also referred to Maj. Aunshuman Mahendra Jha v. The State
of Maharashtra Bail Application No.746/2020 decided on 14.08.2020 to
say where the petitioner was serving in Army; his chance of fleeing from
the court of justice were remote.
7. No doubt to the law propounded above, but each case has to be
dealt with on its own merits/facts. If one looks at the facts, the delay
need to be counted from 15.06.2021 and not from December, 2019. It
starts from the day the prosecutrix found the petitioner had married
elsewhere without informing her. The argument, the alleged sexual
intercourse, even otherwise, was in December 2019 or January 2020 and
hence for 1½ year she never filed any complaint and thus was privy to
the act is not acceptable because the petitioner allegedly repeated the act
even in March, 2021 at Kannur, Kerala without giving any indication to
prosecutrix that he is marrying another girl. Rather, per allegations the
prosecutrix on 15.06.2021 was shocked to hear about his marriage and
she filed the complaint on 19.06.2021, hence it cannot be said there was
much delay in lodging of the FIR. Per allegations, the petitioner assured
her to marry but kept on delaying the matter and rather rebuked her
saying he has being in physical relations only for fun. Nevertheless, the
prosecutrix met his mother at Kerala, who allegedly assured her to look
into the matter.
8. The status report filed by the police also records when the
petitioner did not respond to her calls, she became suspicious and went to
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LAKSHMI DOBHAL
Signing Date:17.08.2021 16:44
Kerala in March, 2021 where he again sexually exploited / assured her of
his promise to marry, but married another girl on 13.06.2021. He even
concealed the fact of being engaged with another girl.
9. It is settled law the delay in lodging the FIR cannot be used as a
ritualistic formula for doubting the prosecution case and discarding the
same. If the delay is explained to the satisfaction of the Court, the
prosecution case cannot be disbelieved, per State of H.P. vs. Gian Chand
2001 AIR SC 2075; and Dildar Singh vs State of Punjab (2006) 10 SCC
531.
10. Though, the petitioner stated he never contacted the prosecutrix
after March, 2021, but she has filed her whatsapp chats and it appears till
18.05.2021 both were in contact with each other. The petitioner rather
had called her number a times through voice call (Whatsapp) on her
phone. The prosecutrix even filed the transcript of conversation dated
20.11.2020 between her; her friend and the mother of the petitioner to
show the mother of the petitioner knew the petitioner had told her about
prosecutrix and his intention to marry her. Thus, the defence taken by the
petitioner they were only friends and he never made any promise to her
or she was obsessed or she is here to extract money from him, appears to
be factually incorrect. The allegation she is doing all this for money
rather inflicts more pain to her injury. The investigation so far reveal he
is trying to influence his subordinates and has destroyed / deleted the
evidence against him.
11. No doubt, the victim is an educated lady, but is an educated person
immune to cheating. The answer would be "no". The facts do show the
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Digitally Signed By:VIJAYA
LAKSHMI DOBHAL
Signing Date:17.08.2021 16:44
petitioner and prosecutrix did have such relations to kindle a hope in the
prosecutrix that the petitioner shall marry her at all costs. It was not
illogical for her to think so. No doubt, the petitioner is a senior officer in
Indian Navy, hence was required to show a more responsible behavior
than the prosecutrix. Can he be allowed to play with her dignity on the
pretext he cohabited with her just for fun and later claim she is extorting
money from him. Such allegations if not backed with proof are rather
insulting.
12. In Harshvardhan Yadav vs State of UP Crl. Appeal No.1382/2021
decided on 03.08.2021 by the High Court of judicature at Allahabad it
was noted:-
30. Therefore, in the light of above discussion, it is
necessary for the legislature to provide a clear and specific
legal framework to deal with the cases where the accused
obtained consent for sexual intercourse on the false
promise of marriage. But till such law is enacted, the court
should take into consideration the social reality and reality
of human life and continue giving protection to such
women who have suffered on account of false promise of
marriage. Unless there is prolonged relationship which
raises a strong inference of consensual sex, in other cases,
particularly, in cases of single act of sexual intercourse as
is the case in the present case, or relationship for a short
time, persuaded by false promise of marriage or where
circumstances show that the accused never intended to
fulfill the promise or he could not be able to fulfill the
promise on account of factors such as the accused was
already married, he disclosed wrong identity, name,
religion and other details to play deception to obtain
consent for sexual intercourse, or the like. Obtaining
consent for sexual relationship by false promise of
marriage should be termed as consent given under
misconception of fact and must amount to rape. The court
cannot become a silent spectator and give license to those
who are trying to exploit the innocent girls and have sexual
intercourse with them on the pretext of a false promise of
marriage. This feudal mind set and male 'chauhanism' that
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LAKSHMI DOBHAL
Signing Date:17.08.2021 16:44
women are nothing but an object of enjoyment is required
to be rigorously addressed and strictly dealt with in order
to create a healthier society and to increase a sense of
security and protection in the mind of women. And, this is
emphasized that this is the responsibility of all the
democratic institutions in the country, more so because, all
the women protective laws against all forms of sexual
exploitation and abuse have been enacted to make the
constitutional goal of gender justice a social reality.
13. In Anurag Soni vs State of Chhattisgarh Crl. Appeal No.629/2019
decided on 09.04.2019 the Supreme Court noted:-
10.4 In the case of State of UP vs Naushad (2013) 16 SCC
651, in the similar facts and circumstances of the case, this
Court reversed the acquittal by the High Court and
convicted the accused for the offence under Section 376 of
the IPC. xxxx
19. In the present case, the accused had
sexual intercourse with the prosecutrix by
giving false assurance to the prosecutrix that he
would marry her. After she got pregnant, he
refused to do so. From this, it is evident that he
never intended to marry her and procured her
consent only for the reason of having
sexual relations with her, which act of the
accused falls squarely under the definition of
rape as he had sexual intercourse with her
consent which was consent obtained under a
misconception of fact as defined under Section
90 IPC. Thus, the alleged consent said to have
been obtained by the accused was not voluntary
consent and this Court is of the view that the
accused indulged in sexual intercourse with the
prosecutrix by misconstruing to her his true
intentions. It is apparent from the evidence that
the accused only wanted to indulge in sexual
intercourse with her and was under no
intention of actually marrying the prosecutrix.
.........
13.(ii) That though the accused was to marry another girl -
Priyanka Soni, the accused continued to talk of marriage
with the prosecutrix and continued to give the promise
that he will marry the prosecutrix.
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Digitally Signed By:VIJAYA
LAKSHMI DOBHAL
Signing Date:17.08.2021 16:44
14. In Nikhil Parasar vs The State of GNCT of Delhi Bail Application
No.1745/2009 decided on 01.02.2010 this Court noted:-
8. The expression 'under a misconception of fact' is enough
to include a case where the misrepresentation, made by the
accused, leads to a misconception of fact in the mind of
prosecutrix, who, believing the misrepresentation made to
her and presuming, it to be true and correct, forms a
misconception of fact that the accused was definitely going
to marry her and acting thereupon, she consents to have
sexual intercourse with him. As held by the Hon'ble
Supreme Court in the case of Deelip (supra), 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 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 was
only a make belief held out only to obtain her consent for
sexual intercourse.
15. Further it is alleged in para I of the status report the petitioner is a
senior officer of Indian Navy and is rather influencing other officers of
the Academy to manipulate the things causing destruction of evidence. It
is alleged during investigation, notices were sent to the Commanding
Officer, INS, Dara Shikoh Road on 23.06.2021 and 24.06.2021 and it
confirmed the petitioner was allotted accommodation at Naval Officers
Mess, Kota House, New Delhi from 10.12.2019 to 14.12.2019. Further,
though it is alleged civilians are not allowed in Kota House, but the
statement of the Guard has been recorded to show they do not make any
entry in the visitors' register, if any officer is accompanying any private
person/civilian. The same was done in this case too. The prosecutrix also
alleges she accompanied the petitioner in a car, hence no entry was made
in the visitors' register. It is also alleged the police made inquiry
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LAKSHMI DOBHAL
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regarding the accommodation allotted to the petitioner, but the reply of
the authorities is no record is held by this unit. It shows the office of the
petitioner is avoiding the reply under the influence of the petitioner.
Further, on notice sent to the Commanding Officer, Naval Academy,
Kannur, Kerala, to confirm if the prosecutrix stayed in the guest house in
Indian Naval Academy from 27.03.2021 to 29.03.2021 as personal guest
of the petitioner, they did not provide the attested copies of the record.
Further the CCTV footage in both the units was stated to be not
available.
16. It is alleged since the petitioner is trying to influence the replies
from his department, hence his custodial interrogation is required to find
out the place when and where he had taken the prosecutrix. The mobile
phone of the petitioner is also required to be seized as it allegedly contain
nude pictures and videos of the prosecutrix. I agree it can be handed over
to the Investigating Officer, but a bare perusal of the order 07.07.2021 of
the learned Session's Court would show he deleted the electronic record
in the form of chats, text messages and facebook messages/chats
exchanged between the parties. This act of the petitioner rather reflects
his intention to cover up his wrongs by erasing the relevant electronic
record/data, which would otherwise had given a true picture of the facts.
It is also alleged petitioner has filed the selected documents to save his
skin and has not filed the email in its entirety. Though it is argued the
deleted data can be recovered from hard disk, but the details filed by the
prosecutrix of her whatsapp, prima facie show he was in contact with her
till 18.05.2021, but he argued otherwise.
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Digitally Signed By:VIJAYA
LAKSHMI DOBHAL
Signing Date:17.08.2021 16:44
17. Considering the facts and stage of investigation, I am not inclined
to interfere with the order dated 07.07.2021 of the learned Session's
Judge in declining anticipatory bail to the petitioner. The petition is
dismissed. Pending application, if any, also stands disposed of.
18. Nothing opined above shall be treated as an observation on merits
of case on either side.
YOGESH KHANNA, J.
AUGUST 17, 2021 M Bail Application No.2500/2021 Page 11 of 11 Signature Not Verified Digitally Signed By:VIJAYA LAKSHMI DOBHAL Signing Date:17.08.2021 16:44