Case title: Sunny Alias Ravi Kumar v. State of NCT of Delhi.
Case no: Bail Appln. 3580/2023
Dated on: 29th April, 2024
Quorum: Hon’ble Mr. Justice Amit Mahajan.
Facts of the case:
The present application is being filed under Section 439 of the Code of Criminal Procedure, 1973 (CrPC) seeking a grant for regular bail in FIR No.255/2023 on 10.03.2023 for offences under Sections 376/354D/506 the Indian Penal Code, 1860 (IPC). It is alleged that the applicant used to stalk the prosecutrix and claimed that he loved her. It was stated that after the prosecutrix rejected the applicant, the applicant had threatened her. It was declared that on 01.12.2021 the applicant had called the prosecutrix at GTB Nagar metro station, the applicant then had threatened the prosecutrix with suicide due to which the prosecutrix agreed to meet him and have regular conversations with him. In December 2021 the applicant took the prosecutrix to his friends house in Aadarsh Nagar, and forced her to have sexual relations with him for the first time. It was stated the applicant took the prosecutrix to a hotel named Welcome Hotel 5-6 times and forced her to have sexual relations with him. It is alleged that the applicant took the prosecutrix to Haridwar on April,2022 and allegedly married the prosecutrix there. Later on, the prosecutrix found out that the applicant was married and also had two children. It was also stated that the applicant would demand gifts from the prosecutrix leading her to give him nearly Rs. 1.5 lakhs in cash and many other items. On 07.03.2023, the applicant had called the prosecutrix when he was intoxicated and told her to meet him at Aadarsh Nagar Metro Station from there the applicant took her to the Welcome Hotel and forced her to have unnatural sex with him. A medical examination was conducted of the prosecutrix at BJRM hospital Delhi, and her statement was recorded under Section 164 of CrPC. Chargesheet was filed under Section 376/354D/506 of IPC.
Contentions of the prosecution:
It was alleged that the applicant used to stalk the prosecutrix and also claimed that he was in love with her. It is alleged that after the prosecutrix rejected the advances of the applicant, the applicant threatened her. It was stated that on 01.12.2021, the applicant called the prosecutrix at GTB Nagar Metro Station. When the prosecutrix reached to meet him, the applicant threatened her with suicide due to which the prosecutrix agreed to meet him and have regular conversations with him. It was alleged that in December, 2021, the applicant took the prosecutrix to one of his friend’s house in Aadarsh Nagar, and forcefully established sexual relations with the her for the first time. It is alleged that thereafter, the applicant took the prosecutrix to a Hotel, namely, Welcome Hotel, about 5-6 times, and forced her to have sexual relations with him there. It is alleged that the applicant also took the applicant to Haridwar in April, 2022 for three days and allegedly married the prosecutrix there. Later, found out that the applicant was married and had two children. It is alleged that the applicant used to demand gifts from the prosecutrix and she had allegedly given ₹1.5 lakhs in cash, two mobile phones, clothes and two silver rings to the applicant, and also resorted to violent means when she did not pay heed to his demands. on 07.03.2023, the applicant called the prosecutrix when he was intoxicated and forced her to meet him at the Adarsh Nagar Metro Station, the applicant thereafter took the prosecutrix to the Welcome Hotel and forced her to have unnatural sex and beat her when she refused. A medical examination of the prosecutrix was conducted at BJRM Hospital, Delhi and her statement was also recorded under Section 164 of CrPC. The chargesheet was filed under Section 376/354D/506 of IPC. The Public Prosecutor for the State opposes the present bail, saying that there is a high possibility that the applicant could extend the threats to the prosecutrix’s family, and therefore, the bail application to be dismissed.
Contentions of the applicant:
The case that was filed against the applicant is basically to humiliate, torture him and to harass him and he has been in judicial custody since 10.03.2023. It was stated that there are material differences in the FIR and the statement of the prosecutrix recorded under Section 164 of CrPC. It is also contended that as clear from the contents of FIR, the relationship between the applicant and the prosecutrix was consensual in nature and had continued for two years. It was further submitted that the custody of the applicant is not necessary for the investigation, as there are no chances of the applicant to abscond or flee from justice, and that the promise of marriage is completely absurd and untrue. Lastly, he says that there has been an unnecessary delay in the filing of an FIR which increases the suspicion about the allegations made by the prosecutrix.
Issue:
Whether the Bail application filed by the Applicant is to be allowed?
Legal provision:
Section 376 of IPC- Rape the punishment is not for less than 10years, which may extend to life imprisonment and, a fine.
Section 354D of IPC- Stalking any man who repeatedly follows, contacts, or monitors a woman’s communication despite her clear disinterest will amount to imprisonment for three years.
Section 506 of IPC- Criminal intimidation.
Section 164 of CrPC- empowers a magistrate to record a person’s testimony or confession regardless of whether or not he has the jurisdiction.
Courts analysis and judgement:
The Court, while considering the application for bail, has to consider the nature of the offence, severity of the punishment and prima facie involvement of the accused. The Court is now not required to enter into the detailed analysis of the evidence. The bail is not to determine the guilt but it’s only a safeguard to ensure the accused’s right to liberty, pending trial. The court needs to maintain balance between securing the complainant’s interest and safeguarding the accused’s right. In the present case, the allegations levelled is that the Applicant had established forceful physical relations with the prosecutrix on multiple occasions on the false pretext of marriage. It is not denied that the prosecutrix had known the applicant for a long time. The alleged incident, for the first time, is said to have taken place in the month of December, 2021, however no complaint was made at the time. Thereafter, the prosecutrix continued to have sex on several occasions and even then, no complaint was made by her. The prosecutrix got FIR registered on 10.03.2023, that is, almost after fifteen months from the first alleged incident The Hon’ble Supreme Court Apex Court, in Meharaj Singh (L/Nk.) v. State of U.P. (1994) 5 SCC 188, held that Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story…” The prosecutrix has not mentioned date or time of the alleged incidents. The prosecutrix was a major and hence the consent of the prosecutrix whether vitiated by a misconception of fact arising out of a promise to marry can be established only at the time of trial. The averment of the applicant that there are discrepancies between the FIR and Section 164 CrPC statement is also a matter of trial. At this stage, no evidence has been adduced to show that the applicant had made forceful relation with the prosecutrix or has issued any threats of making viral her photographs or has demanded money, mobile phones from the prosecutrix. It is apparent that the prosecutrix was meeting the applicant for quite some time before filing the complaint and wanted to continue their relationship despite knowing that the applicant is a married man. The decision to continue with the relationship points towards her consent. The actions at this stage, does not suggest passive acquiescence under psychological duress but implies towards her consent which is devoid of any kind of misconception. The Hon’ble Supreme Court in Pramod Suryabhan Pawar v. State of Maharashtra: (2019)SCC 608 has laid out as to when a “promise to marry” is a “false promise” or a “breach of promise”. The Supreme Court held that two propositions must be established to establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry ie the promise of marriage must have been a false, given in bad faith and with no intention of being adhered. The false promise must be of immediate relevance or bear direct nexus to the woman& 39 decision to engage in the sexual act. At the stage of considering bail, it is neither appropriate nor feasible for the court to draw conclusion, as to whether a promise of marriage made to the prosecutrix was false and in bad faith with no intention to adhere. This issue can be determined after an assessment and evaluation of evidence. It is imperative on the part of Court to exercise utmost diligence in evaluating the prima facie allegations on cases to case basis especially when there are contentious issues of consent and intent. Further, it is not in dispute that the antecedents of the applicant are clean. The applicant, is aged about 34 years and is in custody since 10.03.2023 and has a wife and two minor children to take care of. Keeping the applicant in jail will not serve any useful purpose.
In view of the above, the applicant is directed to be released on bail on furnishing a personal bond for a sum of ₹25,000/- with two sureties of the like amount, subject to the following conditions: a. The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case or tamper with the evidence of the case; b. He shall not contact the complainant other witnesses; c. The applicant shall not travel out of the country without prior permission; d. The applicant shall not tamper with evidence nor indulge in any unlawful act or omission which would prejudice the trial. The applicant to appear before the learned Trial Court as and when directed. The applicant shall not visit the locality where the prosecutrixy resides. The applicant to provide the address where he would be residing and shall not change the address without informing the concerned IO/ SHO; h. The applicant to give his mobile number to the concerned IO/SHO and shall keep his mobile phone active and switched on at all times. In the event of any FIR/ DD entry/ complaint lodged against the applicant, State can seek redressal by filing an application for cancellation of bail. The observations made in the present order are for the purpose of deciding the only the present bail application and should have no bearing on the outcome of the Trial and shall not be taken as an expression of opinion on the merits of the case. The bail application is accordingly, allowed.
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Judgement reviewed by- Parvathy P.V.
