1. The present application preferred under Section 439 (2) Criminal Procedure Code, 1973 (for short 'CrPC") has been filed by applicant-complainant for cancellation of bail granted by the Additional District and Sessions Judge,/F.T.C.-1st, Lucknow to accused-respondent no. 2 in Case Crime No.490 of 2017, under Sections 376, 323 and 506 Indian Penal Code, 1860 (for short "IPC"), Police Station Gomti Nagar, District Lucknow.
2. Allegations in the first information report (for short "FIR") lodged at Case Crime No.490 of 2017, under Sections 376, 323 and 506 IPC, Police Station Gomti Nagar, District Lucknow in short are that accused-respondent no. 2 expressed his love to the complainant-applicant and won her confidence; accused-respondent 2 promised the complainant-applicant to marry her within 3-4 years; after winning trust and confidence of the complainant-applicant by accused-respondent no. 2, they started meeting each other; accused-respondent no. 2 took the complainant-applicant several times to different hotels, administered some drug in cold-drinks and raped her repeatedly; accused-respondent no. 2 also took obscene photographs of the complainant-applicant and made video; despite protest, accused-respondent no. 2 raped the complainant-applicant and subjected her to abortion twice; when the complainant-applicant asked accused-respondent to marry her, accused-respondent no. 2 beat her and threatened for life.
3. While granting bail to the accused-respondent no. 2, learned trial Court has held that the complainant and the accused were in relationship for the last six years. The complainant was 24 years old educated female, living in a city. The doctors, who allegedly aborted fetus of the complainant, did not support her case in their statements recorded by the investigating officer; and in her statement recorded under Section 164 CrPC, the complainant named other persons also, but neither in her complaint nor in her statement recorded under Section 161 CrPC she has mentioned their names. The trial Court has granted bail to the accused-respondent no. 2 on the ground that there is no criminal history of the accused-respondent no. 2 and story set up by the complainant does not inspire confidence. The trial Court has held that relationship between the complainant and the accused-respondent no. 2 appears to be consensual one.
4. The complainant in affidavit filed in support of bail cancellation application has said that the learned trial Court has granted bail to the accused-respondent no.2 without considering the fact that the complainant-applicant was prevented from entering into premises of Court campus as well as she was threatened outside the Court by accused-respondent no. 2. In this regard, she lodged FIR at Case Crime No.129 of 2017, under Sections 352 and 504 IPC, Police Station Gomti Nagar, District Lucknow on 20.07.2017 and charge-sheet has also been submitted. Copy of the FIR is annexed as Annexure-3. A relative of accused-respondent no. 2, who happens to be an Advocate, had threatened mother of the complainant just after lodging of the FIR by the complainant. Mother of the complainant had also lodged FIR on 25.04.2017 at Case Crime No.200 of 2017, under Sections 147 and 506 IPC, Police Station Gudamba, District Lucknow in which also charge-sheet has been submitted. Copy of the FIR lodged by mother of the complainant-applicant has been placed on record as Annexure-4. Brother of the complainant had also lodged FIR at Case Crime No.933 of 2017, under Sections 323, 504 and 506 IPC, Police Station Gomti Nagar, District Lucknow. Accused-respondent no. 2 has been continuously extending threats to the complainant-applicant and her family members and putting pressure on her not to pursue the case. One of the relatives of the accused-respondent no. 2 has long criminal history. The complainant-applicant has also placed on record photos of the comments uploaded by the accused-respondent no. 2 on social-media. The complainant-applicant had also filed objection before the trial Court against grant of bail.
5. Paragraph-14 of the affidavit filed by the complainant-applicant in support of bail cancellation application is little disgusting, which is reproduced herein below:-
"That thus it is evident from aforesaid facts that the complainant has not been granted bail in a bona fide manner rather has been granted bail on some extraneous consideration and just after coming out from jail the accused is misusing the liberty and trying to terrorize the complainant, witnesses and her family members and the accused is trying to prove that he has no fear of law and the complainant cannot do any thing to him as he is capable to manager the entire things."
6. Thus, in sum and substance case of the complainant-applicant in support of the present application is that the trial Court without considering the material placed on record and without taking into consideration the relevant facts has granted bail to the accused-respondent no. 2. Therefore, she has filed instant application with prayer for cancellation of bail granted to accused-respondent no. 2 by the learned trial Court.
7. Substance of allegations of the FIR is that the accused-respondent no. 2 made false promise of marry the complainant-applicant and on the pretext of false promise made to the complainant, he raped her repeatedly for six years. Accused-respondent no. 2 took the complainant-applicant to different hotels in the city and also aborted her fetus twice.
8. The Supreme Court in Deepak Gulati Vs. State of Haryana (2013) 7 SCC 675 has held that there is a clear distinction between rape and consensual sex. There is also distinction between breach of promise and not fulfilling a false promise. In the case like this, the Court is required to see whether there is adequate evidence to show that at the very beginning itself the accused had no intention whatsoever of keeping his promise to marry the victim. It has also been said that there may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused solely on account of misrepresentation made to her by the accused. Paragraphs-21 and 24 of Deepak Gulati Vs. State of Haryana's case (supra) are extracted herein below:-
"21. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives.
24. Hence, it is evident that there must be adequate evidence to show that at the relevant time i.e. at the initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The "failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term "misconception of fact", the fact must have an immediate relevance". Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her."
9. Similar view has also been expressed by the Supreme Court in Dr. Dhruvaram Murlidhar Sonar Vs. The State of Maharashtra and others, Criminal Appeal No.1443 of 2018 (Arising out of S.L.P. (Criminal) No.6532 of 2018). Relevant Paragraphs-20 and 21 of Dr. Dhruvaram Murlidhar Sonar Vs. The State of Maharashtra and others (supra) are extracted herein below:-
"20. Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the later falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape.
There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape.
The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 of the IPC.
21. In the instant case, it is an admitted position that the appellant was serving as a Medical Officer in the Primary Health Centre and the complainant was working as an Assistant Nurse in the same health centre and that the is a widow. It was alleged by her that the appellant informed her that he is a married man and that he has differences with his wife. Admittedly, they belong to different communities. It is also alleged that the accused/appellant needed a month's time to get their marriage registered. The complainant further states that she had fallen in love with the appellant and that she needed a companion as she was a widow.
She has specifically stated that "as I was also a widow and I was also in need of a companion, I agreed to his proposal and since then we were having love affair and accordingly we started residing together. We used to reside sometimes at my home whereas some time at his home." Thus, they were living together, sometimes at her house and sometimes at the residence of the appellant. They were in a relationship with each other for quite some time and enjoyed each other's company. It is also clear that they had been living as such for quite some time together. When she came to know that the appellant had married some other woman, she lodged the complaint.
It is not her case that the complainant has forcibly raped her. She had taken a conscious decision after active application of mind to the things that had happened. It is not a case of a passive submission in the face of any psychological pressure exerted and there was a tacit consent and the tacit consent given by her was not the result of a misconception created in her mind. We are of the view that, even if the allegations made in the complaint are taken at their face value and accepted in their entirety, they do not make out a case against the appellant. We are also of the view that since complainant has failed to prima facie show the commission of rape, the complaint registered under Section 376(2)(b) cannot be sustained."
10. Thus, whether the accused-respondent no. 2 had any intention from the very beginning to marry the complainant-applicant and whether only to satisfy his lust he obtained consent of the complainant on misrepresentation are the questions to be determined after leading evidence. At the stage of granting bail, the Court has to look into the conduct of the parties. Since the complainant-applicant herself is 24 years of age and educated, it would be presumed that she would know the consequence of her action. Allegedly, the complainant-applicant remained in relationship with the accused-respondent no. 2 for six years and she had established physical relation with the accused-respondent no. 2. Considering the aforesaid facts and circumstances of the case, the learned trial Court has granted bail to the accused-respondent no. 2, exercising discretion under Section 439 CrPC.
11. Supreme Court in the case of Dolat Ram and others Vs. State of Haryana (1995) 1 SCC 349 has drawn a distinction between rejection of bail in non-bailable offence and cancellation of bail already granted. It has been held that the basis of rejection of bail at the initial stage and the cancellation of bail already granted have to be considered on different considerations. The Supreme Court has illustratively laid down the grounds for cancellation of bail in paragraph-4 of the aforesaid judgment, which is extracted herein below:-
"4. Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. These principles, it appears, were lost sight of by the High Court when it decided to cancel the bail, already granted. The High Court it appears to us overlooked the distinction of the factors relevant for rejecting bail in a non-bailable case in the first instance and the cancellation of bail already granted."
12. In Bhagirathsinh s/o Mahipat Singh Judeja Vs. State of Gujarat (1984) 1 SCC 284 Supreme Court has held that there should be very cogent and overwhelming circumstances for cancellation of bail granted by the trial Court.
13. In Padmakar Tukaram Bhavnagare and another Vs. State of Maharashtra and another (2012) 13 SCC 720 the Supreme Court has spelt-out grounds for cancellation of bail which include interference or attempt to interfere with the due course of justice or abuse of the concession granted to the accused. Paragraph-13 of the said judgment reads as under:-
"13. It is true that this Court has held that generally speaking the grounds for cancellation of bail broadly are interference or attempt to interfere with the due course of justice or abuse of the concession granted to the accused in any manner. This Court has clarified that these instances are illustrative and bail can be cancelled where the order of bail is perverse because it is passed ignoring evidence on record or taking into consideration irrelevant material. Such vulnerable bail order must be quashed in the interest of justice. [See Dolat Ram v. State of Haryana [(1995) 1 SCC 349 : 1995 SCC (Cri) 237] and Dinesh M.N. (S.P.) v.State of Gujarat [(2008) 5 SCC 66 : (2008) 2 SCC (Cri) 508] ]. No such case, however, was made out to persuade the learned Single Judge to quash the anticipatory bail order passed in favour of Accused 6 and 7. Order granting anticipatory bail to them, therefore, deserves to be confirmed. We feel that if the conditions imposed by the learned Sessions Judge are confirmed, it would be possible for the investigating agency to interrogate the accused effectively."
14. In Narendra K. Amin (Dr.) Vs. State of Gujarat and another (2008) 13 SCC 584 it has been held that while deciding an application for cancellation of bail under Section 439(2) CrPC, the Court is required to find whether irrelevant material was taken into consideration while granting the bail. If the bail has been granted taking into consideration irrelevant material, the order granting bail would be perverse and the bail can be cancelled, but before cancelling the bail, the Court must be of the opinion that the irrelevant material was of substantial nature and not trivial nature. Paragraphs-18, 23 and 25 of the aforesaid judgment are extracted herein below:-
18. As is evident from the rival stands, one thing is clear that the parameters for grant of bail and cancellation of bail are different. There is no dispute to this position. But the question is if the trial court while granting bail acts on irrelevant materials or takes into account irrelevant materials whether bail can be cancelled. Though it was urged by learned counsel for the appellant that the aspects to be dealt with while considering the application for cancellation of bail and on appeal against the grant of bail, it was fairly accepted that there is no scope for filing an appeal against the order of grant of bail. Under the scheme of the Code the application for cancellation of bail can be filed before the Court granting the bail if it is a Court of Session or the High Court.
23. Even though the reappreciation of the evidence as done by the court granting bail is to be avoided the court dealing with an application for cancellation of bail under Section 439(2) can consider whether irrelevant materials were taken into consideration. That is so because it is not known as to what extent the irrelevant materials weighed with the court for accepting the prayer for bail.
25. The perversity as highlighted in Puran case [(2001) 6 SCC 338 : 2001 SCC (Cri) 1124] can also flow from the fact that as noted above irrelevant materials have been taken into consideration adding vulnerability to the order granting bail. The irrelevant materials should be of a substantial nature and not of a trivial nature. In the instant case, the trial court seems to have been swayed by the fact that Sohrabuddin, husband of Kausarbi had shady reputation and criminal antecedents. That was certainly not a factor which was to be considered while granting bail. It was the nature of the acts which ought to have been considered. By way of illustration, it can be said that the accused cannot take a plea while applying for bail that the person whom he killed was a hardened criminal. That certainly is not a factor which can be taken into account. Another significant factor which was highlighted by the State before the High Court was that an FIR allegedly was filed to divert attention from the fake encounter. The same was not lodged by Gujarat Police."
15. In Subodh Kumar Yadav Vs. State of Bihar and another (2009) 14 SCC 638 the Supreme Court has held that if a superior court finds that court granting bail had acted on irrelevant material or there was non-applicant of mind or failure to take note of any statutory bar to grant bail, or if there was manifest impropriety e.g. failure to hear public prosecutor/complainant where required, the superior court can cancel the bail granted by the trial Court. Paragraph-16 of the aforesaid judgment is extracted herein below:-
16. In fact it is now well settled that if a superior court finds that the court granting bail had acted on irrelevant material, or if there was non-application of mind or failure to take note of any statutory bar to grant bail, or if there was manifest impropriety as for example failure to hear the Public Prosecutor/complainant where required, an order for cancellation of bail can in fact be made. (See Gajanand Agarwal v. State of Orissa [(2006) 12 SCC 131 : (2007) 1 SCC (Cri) 568 : (2006) 9 Scale 378] andRizwan Akbar Hussain Syyed v. Mehmood Hussain [(2007) 10 SCC 368 : (2007) 3 SCC (Cri) 598] , at SCC p. 370, para 7.) Further, while cancelling bail, the superior court would be justified in considering the question whether irrelevant materials were taken into consideration by the court granting bail."
16. The present application has been filed for cancellation of bail granted to the accused-respondent no. 2 by the trial Court. Allegations made in paragraph-14 of the affidavit that the bail has been granted on extraneous consideration does not appear to have any substance and this trend of making wild allegations against the judicial officer is to be deprecated and discouraged.
17. There is a distinction between grant of bail and cancellation of bail. While cancelling bail under Section 439 (2) CrPC primary considerations, which need to be taken into account, are that whether the accused would likely to tamper with the evidence or interfere or attempt to interfere with due course of justice or evade due course of justice. The Court is also required to see whether the order granting bail suffers from serious infirmity, resulting in miscarriage of justice.
18. Considering the facts and circumstances of the case and substance of allegations against the accused-respondent no. 2 that he had raped the complainant-applicant for six years on false promise of marriage and got her fetus aborted twice and the fact that the complainant-applicant is a well-educated female of 24 years, the trial Court has granted the bail by exercising discretion after considering the nature of allegations and other attending circumstances. Cancellation of bail of the accused-respondent no.2 has been sought on the ground that the trial Court has not considered the relevant facts. The accused-respondent no. 2 had been granted bail almost a year before and there has been no complaint whatsoever with respect to misuse of liberty of bail granted to him or interference with due course of justice or tampering with evidence in any manner after grant of bail. I don't find any substance in the allegation of the complainant-applicant that the accused-respondent no. 2 would tamper with evidence or attempt to interfere with due course of justice or evade due course of justice.
19. Accordingly, the application is rejected.
Order Date :- 25th February, 2019 MVS Chauhan/-