Delhi High Court - Orders
Ravi Chugh vs State Of Nct Of Delhi on 21 May, 2021
Author: Manoj Kumar Ohri
Bench: Manoj Kumar Ohri
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 1352/2021
RAVI CHUGH ..... Petitioner
Through: Mr. Mohit Mathur, Sr. Advocate with
Mr. Vivek Singh, Mr. Lakshay
Laroiya, Mr. Harsh Gautam and Mr.
Vinayak Chitale, Advocates.
Versus
STATE OF NCT OF DELHI .... Respondent
Through: Mr. Hirein Sharma, APP for State.
CORAM:
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI
(VIA VIDEO CONFERENCING)
ORDER
% 21.05.2021
1. The present bail application has been filed under Section 438 Cr.P.C. on behalf of the petitioner seeking anticipatory bail in FIR No. 73/2021 registered under Section 376 IPC at P.S. Kalkaji.
2. Mr. Mohit Mathur, learned Senior Counsel for the petitioner submits that the present case has been lodged by the complainant on the ground that the petitioner has allegedly committed rape upon her by giving false promise of marriage. He has questioned the veracity of the allegations made in the FIR by pointing out that the complainant is a mature girl of 22 years of age and it was, in fact, the complainant who had been mostly calling the petitioner during the alleged relationship period. To buttress his submission, learned Senior Counsel has also relied on the WhatsApp chats exchanged between the parties where it appears that the petitioner has been time and again blocking her number. He has also referred to certain photographs of the complainant with the petitioner to submit that the complainant had willingly gone out of station with the petitioner. Insofar as the allegation with respect to their stay at the hotel and commission of rape on 27.10.2020 is concerned, it is submitted that while the complainant has stated that it was her birthday on that day but her Aadhar Card shows her date of birth to be 20.04.1993. It is submitted that there are contradictions in the statements of the complainant recorded under Section 161 Cr.P.C. and Section 164 Cr.P.C. It is also submitted that the present FIR has been registered as a counter blast to the complaint given by the petitioner's mother to the DCP one day prior i.e., 15.02.2021 regarding threat of false implication in the matter. Lastly, on instructions, it is submitted that the petitioner is willing to join investigation and handover his mobile phone.
3. Mr. Hirien Sharma, learned APP for the State, duly assisted by the learned counsel for the complainant, has vehemently opposed the application. He submits that not only the petitioner but his entire family gave the promise of marriage at the initial stage. He further submits that during investigation, the allegations in the FIR with respect to their stay at hotel 'The Gera's' on 27.10.2020 have been verified. Lastly, it was submitted that both the statements of the complainant are consistent.
4. I have heard the learned counsels for the parties and gone through the material documents placed on record. As per the allegations, the complainant had visited the shop of the petitioner's father to buy footwear where he gave a proposal of marriage of his son to the complainant. Thereafter, the complainant was introduced to the petitioner, who, after meeting her, also agreed to marry. Even the families were agreeable to the marriage proposal. Both the complainant and the petitioner had checked into the hotel on 27.10.2020. On a specific query, it has been informed that the internal examination of the complainant could not be conducted by the concerned doctor on account of time gap between the date of examination and the last sexual contact.
5. The Supreme Court in Pramod Suryabhan Pawar v. State of Maharashtra and Another reported as (2019) 9 SCC 608, held as follows:
"16. Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a "misconception of fact" that vitiates the woman's "consent". On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it. The "consent" of a woman under Section 375 is vitiated on the ground of a "misconception of fact" where such misconception was the basis for her choosing to engage in the said act....
xxx xxx xxx
18. 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."
6. Recently, the Supreme Court in Maheshwar Tigga v. State of Jharkhand reported as (2020) 10 SCC 108, held as follows:
"13. The question for our consideration is whether the prosecutrix consented to the physical relationship under any misconception of fact with regard to the promise of marriage by the appellant or was her consent based on a fraudulent misrepresentation of marriage which the appellant never intended to keep since the very inception of the relationship. If we reach the conclusion that he intentionally made a fraudulent misrepresentation from the very inception and the prosecutrix gave her consent on a misconception of fact, the offence of rape under Section 375 IPC is clearly made out. It is not possible to hold in the nature of evidence on record that the appellant obtained her consent at the inception by putting her under any fear. Under Section 90 IPC a consent given under fear of injury is not a consent in the eye of the law. In the facts of the present case, we are not persuaded to accept the solitary statement of the prosecutrix that at the time of the first alleged offence her consent was obtained under fear of injury."
7. A perusal of the FIR would show that there is no allegation to the effect that the petitioner had no intention to marry the complainant since the very beginning. In fact, the complainant stated that the initial proposal of marriage for his son was given by the petitioner's father to her. Thereafter, both the families also agreed to the same. Accordingly, in light of the above observations of the Supreme Court and the facts of this case, it is directed that in the event of arrest, the petitioner be released on anticipatory bail on his furnishing a personal bond in the sum of Rs.50,000/- with one surety of the like amount to the satisfaction of the I.O./SHO/Arresting Officer and subject to the following conditions:-
(i) The petitioner shall not leave the NCT of Delhi without prior intimation to the I.O./SHO.
(ii) The petitioner shall not directly or indirectly try to get in touch with the prosecutrix/her family members or any prosecution witnesses and shall not make any effort to tamper with the evidence.
(iii) The petitioner shall join and cooperate in the investigation as and when directed to do so.
(iv) In case of change of contact details/residential address, the petitioner shall promptly inform the same to the I.O. as well as the concerned Court.
(v) The petitioner shall regularly appear before the Trial Court as and when the charge sheet is filed.
8. With the above directions, the bail application is disposed of.
9. A copy of this order be immediately uploaded on the internet.
10. Nothing stated hereinabove shall be considered as an expression on the merits of the case, as the observations are only prima facie and made with the sole purpose to dispose of the bail application.
MANOJ KUMAR OHRI, J MAY 21, 2021 ga Click here to check corrigendum, if any