Jharkhand High Court
Sushil Kumar Barnwal vs The State Of Jharkhand on 19 May, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
A.B.A. No. 8321 of 2021
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Sushil Kumar Barnwal .... .... ....Petitioner
Versus
1. The State of Jharkhand
2. Suman Kumari .... .... ....Opposite Parties
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Coram: HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
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For the Petitioner : Mr. Rohan Chander, Advocate Ms. Manjusha Priya, Advocate For the State : Mr. Rajendra Ram Ravi Das, A.P.P For the O.P. No.2 : Mr. Naveen Kr. Jaiswal, Adv.
Mrs. Nutan Kumari Sharma, Adv.
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Order No.09 Dated- 19.05.2023 Heard learned counsel for the parties.
2. Apprehending his arrest in connection with Mahila Thana P.S. Case No. 16 of 2021 instituted under Sections 376, 417, 506 and 34 of the Indian Penal Code, the petitioner has moved this Court for grant of privilege of anticipatory bail.
3. Briefly stated the contents of the FIR depicts that victim girl (informant) was contacted by the petitioner at Shadi. Com. Site on 18.08.2019 and pursuant to that they started talking each other over phone. Petitioner has disclosed his identity as worker in Merchant Navy. It is alleged that on 27.01.2020 the petitioner returned from his duty and came to Ranchi to meet the informant but initially she declined on ground of bad health condition, thereafter, the petitioner requested the mother of the informant who agreed on condition that victim girl will be accompanied by her friends which was objected by the petitioner saying that he will feel uncomfortable in their company. It is further alleged that on insistence of the petitioner, the victim girl alone accompanied him and stayed at a restaurant for 4-5 hours with four other friends of petitioner, who also consumed food and wine. It is further alleged that the informant along with petitioner returned to her home but her parent were not present, then petitioner persistently requested to establish physical relationship, which was flatly refused by the victim but the petitioner prevailed over the will of the victim girl saying that we are going to marry very soon, hence there must be no problem and established physical relationship against her will and consent on pretext of false promise of marriage. It is further alleged that the parents of informant were also invited to native home of the petitioner at Hirodih, District Giridih for negotiation of marriage, pursuant to that on demand of petitioner Rs.4 lakhs was given to him for purchase of flat in Mumbai. It is further alleged that the function of "Phal Daan" was organized on 05.03.2020 and 6.03.2020 in which the father of petitioner was given Rs.2 lakhs. It is further alleged that after few days petitioner visited passport office Ranchi and visited her home while she was alone in her home. The petitioner again in stubborn manner asked for physical favour which was again denied by the victim but the petitioner said that now the marriage has been fixed, so there must be no problem. Thus physical relationship was established. Thereafter, the lockdown was imposed due to spread of Covid-19, in the meantime, conduct and behaviour of petitioner and his family members abruptly changed towards the informant and her family. The petitioner went to his duty in the first week of July, 2020 and informed to the victim that he would return in the month of January, 2021 and they will solemnize court marriage. It is further alleged that gradually the petitioner snapped all relations with the victim and also changed his mobile phones so that no conversation may take place. The informant also came to know that the petitioner is going to see another girl for solemnization of marriage at Jaggarnath Madir at Ranchi then, the informant along her family members reached there for protest but petitioner managed to escape. It is alleged that petitioner has ruined her life by committing rape on her and fraudulently obtained huge amount of money in the shape of dowry and duped all family members due to which, she underwent to depression and finding no other option but to lodge this case.
4. It is here pertinent to mention at the very outset that the present anticipatory bail application i.e. A.B.A. No.8321 of 2021 was heard and disposed off by the Co-ordinate Bench of this Court vide order dated 07.04.2022 with following observation:-
" in the event of arrest by the police or surrender within a period of 8 weeks from the date of this order, petitioner shall be released on depositing Rs.2 lakhs by way of demand draft drawn in favour of informant without prejudice to his defence, subject to final decision of this case and on furnishing bail bond of Rs.25,000/- (Rupees twenty five Thousand) with two sureties of the like amount of each to the satisfaction of Learned J.M, Ranchi in connection with Mahila Thana P.S. Case No.16 of 2021."
Above order was challenged by the petitioner by way of filing SLP(Crl.) No.5772 of 2022 which was converted into Cr. Appeal No.1322 of 2022 wherein the Hon'ble Supreme Court along with Cr. Appeal No.1318 of 2022 and other batch of petitions involving common aspects in all cases, set aside the order of bail granted to the petitioner and remitted back for fresh consideration before another learned Judge who would analyze each case keeping in mind the factual scenario, the nature of offence and the settled principles for grant of bail.
Accordingly, the matter was assigned to this Court for hearing and disposal.
5. Learned counsel for the petitioner has submitted that the petitioner is innocent and has committed no offence at all rather he has been falsely been implicated in this case. There is no whisper in the FIR as to how the petitioner came to know that no one is present in her house on two occasions when physical relationship has been established. The informant also declined from undergoing medical examination, which also cast serious doubt against the prosecution version about commission of rape. The petitioner never accompanied with the victim girl to her residence on 28.01.2020 rather she was left at her home by friends of petitioner. The vital discrepancies appearing in the prosecution version entitles the petitioner to grant bail. It is further submitted that the intention of petitioner was bonafide since the very inception and he was whole heartedly performed "Phal Daan"
ceremony on 06.03.2020, thereafter, "informant and her family members did not response to the phone calls of the mother of the petitioner for purpose of expediting the marriage ceremony, hence the petitioner lost interest, upon which the informant insincerely implicated the petitioner and his family members. It is further submitted that there is no iota of evidence to show the mode of payment of Rs.6 lakhs to the petitioner and his father, which is palpably a false story. It is further submitted that the entire set of allegations leveled against the petitioner even if taken to be true, at most, it can be treated as breach of promise and certainly not a false promise of marriage and it does not come under the purview of rape under section 376 of IPC. It is further submitted that petitioner has joined the investigation and co-operating in the investigation of the case and he has no criminal background whatsoever. Petitioner undertakes not to tamper with the prosecution evidence or influence the witnesses, if admitted to bail. Petitioner also undertakes to abide by all terms and conditions imposed upon him in the matter of granting bail. Hence, the petitioner may be extended the privilege of anticipatory bail.
6. Learned Addl.P.P appearing for the State assisted by learned counsel for the informant vehemently opposed the prayer for anticipatory bail of the petitioner and submitted that there is direct and specific allegation against the petitioner that he visited with the informant and on the very first occasion finding her alone insisted upon sexual relationship which was protested and declined by the informant, nevertheless, petitioner prevailed over her will and committed sexual intercourse under influence of false assurance of marriage. Petitioner and his parents have also organized a mock "Phal Daan"ceremony wherein asked Rs.2 lakhs as dowry which was paid by the father of the victim and the petitioner has also Rs.4 lakhs in the name of purchasing flat in Bombay. It is further submitted that there are sufficient positive materials collected during investigation showing direct involvement of petitioner in serous and heinous crime against a woman, it is not a simple case of love affairs prior to occurrence or live-in-relationship between the parties. It is out and out a case of rape, hence, petitioner does not deserve anticipatory bail.
The Hon'ble Apex Court has also clarified that while remitting back of this case for fresh hearing that in view of judgment rendered in the case of Dharmesh @ Dharmendra @ Dhamo Jagdish Bhai @ Jagga Bhai Bhagu Bhai Ratadia and Anr. Vs. State of Gujrat (2021) 7 SCC 198 there is no question of victim compensation, as there cannot be such criteria at the stage of grant of bail.
I have given anxious consideration to overall factual scenario of this case as depicted in the FIR and materials collected during investigation.
7. It appears that there is direct allegation against the petitioner that he developed intimacy with the informant through marriage site i.e., Shadi. Com and thereafter on false pretext of marriage and over powering the will of victim girl established sexual intercourse. It further appears that from the very first meeting with the victim girl, present petitioner has shown his desire to solitary visit with her in spite of denial by her and her mother also. Petitioner has taken advantage of vulnerable situation of the victim and also squeezed money in the name of purchasing flat and also as dowry.
8. At this juncture, it is pertinent to discuss the factors and parameters that can be taken into consideration based upon various judgments of Hon'ble Apex Court while dealing with the anticipatory bail:-
i. The nature and gravity of accusation and the exact role of the accused must be properly comprehended before arrest is made.
ii. The antecedents of the applications including the fact as to
whether the accused has previously undergone
imprisonment on conviction by a court in respect of any cognizable offence.
iii. The possibility of the applicant to flee from justice. iv. The possibility of accused likelihood to repeat similar or the other offences.
v. Where the accusation has been made only with the object of injuring or humiliating the applicant by arresting him or her.
vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. vii. The courts must evaluate the entire available materials against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused in implicated with the help of section 34 and 149 of IPC, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern. The court to consider reasonable apprehension of tampering of the witnesses or apprehension of threat to the complainant.
viii. Frivolity in prosecution should always be consider and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to genuineness of the prosecution, in the normal course of event the accused is entitled to an order of bail.
ix. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused.
x. The discretion under Section 438 of Cr.P.C. cannot be exercised with regard to offence punishable with depth or imprisonment of life unless the court at that very stage is satisfied that such a charge appears to be false or groundless.
xi. A delicate balance is required to be established between two rights safeguarding the personal liberty or individual and the social interest.
9. In the instant case, there is no plea of petitioner about consensual sexual intercourse rather there is flat denial of it, which does not appear to be true by any stretch of imagination. The question of the consent of the victim of sexual intercourse does not arise in this case as she was not willing from very inception and protesting against the same. There are prima facie sufficient materials establishing the offence of rape against the petitioner. The defence version of petitioner is subject matter of trial.
10. Considering the facts and circumstances of this case as discussed above, gravity of offence and severity of punishment as well as materials showing direct involvement of petitioner in heinous crime with victim lady and also in view of parameters for grant of anticipatory bail led down by the Hon'ble Apex Court, I do not feel inclined to extent privilege of anticipatory bail to the petitioner, which stands rejected.
(Pradeep Kumar Srivastava, J.) Pappu/