The distinction between a false promise to marry and breach of a promise to marry, and the relevance of consent and intention at the time of making the promise.

JUDGMENT

Anu Malhotra, J. - The applicant vide the present application has sought the grant of bail in relation to FIR No. 157/2020, PS Anand Parbat registered under Section 376 of the Indian Penal Code, 1860 submitting to the effect that the relations between the petitioner and the complainant were wholly consensual and that the allegations levelled against the applicant of having had any forcible intercourse with the complainant are false.

2. The status report dated 12.11.2020 of the State under signatures of Inspector Mukesh Kumar is on the record.

3. Submissions have been made on behalf of the applicant and on behalf of the State and on behalf of the complainant by the learned counsel for the applicant, the learned APP for the State and the learned counsel for the complainant respectively.

4. Reliance is sought to be placed on behalf of the petitioner on the contents of the charge sheet also to indicate to the effect that relations between the applicant and the prosecutrix have been wholly consensual at all times and that the relations between the parties turned foul only after the prosecutrix was unable to produce documents in relation to her divorce from the previous marriage which documents as per the whatsapp chats between her and the petitioner are stated to have been burnt by her. It has however, been submitted on behalf of the applicant that even thereafter the applicant and the prosecutrix continued to have relations inter se and that the applicant had even thereafter had a bona fide intent to marry the prosecutrix.

5. On behalf of the prosecutrix it has been sought to be submitted through the contents of the charge sheet to the effect that there is video recording that had been made of the intimate relationship between the prosecutrix and the petitioner by the applicant and it is submitted on behalf of the prosecutrix that the same would not have been made if there had been a bona fide intent of the applicant.

On behalf of the applicant it has been submitted that despite a notice under Section 91 of the Cr.P.C. having been issued to the prosecutrix to produce her mobile phone in relation to the alleged whatsapp chats and documentary evidence in relation to the videograph prepared by the applicant of the prosecutrix, the prosecutrix did not produce the same despite the notice issued and did not deposit her mobile phone nor any other documentary proofs nor any other information in relation to the case.

6. On behalf of the State the learned APP for the State submits that the contention that has been raised on behalf of the applicant placing reliance on the aspect that despite a notice under Section 91 of the Cr.P.C. having been issued to the prosecutrix to produce her mobile and other documents she did not produce the same and that the same is an aspect in relation to which on behalf of the State the submissions made on behalf of the petitioner are sought to accepted submitting to the effect that the investigation in relation thereto has thus not proceeded appropriately.

7. Learned counsel for the applicant submits that the prosecutrix was unable to handover her mobile phone to the Investigating Officer in as much as the Investigating Officer had stated that the contents thereof could be leaked, the same as submitted by the State is an unlikely submission and cannot be made by any public servant. It is indicated vide the status report dated 12.11.2020 that the CDR of the applicant was obtained and analyzed and it revealed that the applicant and the prosecutrix were in regular touch with each other till 14.4.2020. The prosecutrix has not yet been examined before the learned Trial Court and it is submitted that she had not chosen to put in appearance on the last date of hearing.

8. On behalf of the applicant, learned counsel for the applicant seeks to place reliance on a catena of verdicts;

1. Pramod Suryabhan Pawar Vs. State of Maharashtra & Ors., (2019) 9 SCC 608;

2. Deepak Gulati Vs. State of Haryana, (2013) 7 SCC 675;

3. Sta