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2022 Supreme(All) 148
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
VIKAS KUNVAR SRIVASTAV, J.
Nan Bhaiya @ Mohd. Saeed - Appellant
Versus
State of U.P. - Respondent
Criminal Misc. Bail application No. - 1510 of 2021]
Decided on : 04-01-2022
Advocate Appeared:
For the Appellant : Akhlaq Ali, Devdutt Prakhar, Farooq Ayoob, Krishna Kumar Seth, Mohd. Islam Khan, Rekha Verma
The main legal point established is that consent in sexual offences must be carefully evaluated, and the parameters for granting bail in such cases include assessing the accused's role, the severity of the offence, and the possibility of securing the accused's presence at trial.
Headnote:
Consent - Bail Application - Sections 376, 504, 506 IPC - 90, 375 IPC - The court discussed the validity of consent in sexual intercourse and the parameters for granting bail in cases of sexual offences.
Fact of the Case:
The accused applied for bail in a case involving allegations of rape, abuse, and threat. The complainant alleged that the accused had sexual relations with her on the promise of marriage, but the accused argued that the sexual relations were consensual.
Finding of the Court:
The court found that the complainant, a 24-year-old woman, had consensually engaged in sexual relations with the accused. The court also cited a Supreme Court judgment to support the view that consent may lose significance in cases where two individuals are in love and make promises of marriage.
Issues: The key issue was whether the accused obtained the complainant's consent under a misconception of fact regarding the promise of marriage, and whether the accused should be granted bail.
Ratio Decidendi: The court emphasized the importance of assessing the accused's role in the offence and the evidence of his involvement. It also considered the severity of the punishment, the character of the accused, and the possibility of securing the accused's presence at trial when deciding on bail.
Final Decision: The court granted bail to the accused, considering the nature of the accusation, the accused's complicity, and the severity of the offence, while imposing additional conditions to ensure the accused's presence during trial.
JUDGMENT :
VIKAS KUNVAR SRIVASTAV, J.
1. The case is called on. Learned counsel Sri Krishna Kumar Seth, Advocate for the bail-applicant appeared to press the application for bail on behalf of the accused-applicant-Nan Bhaiya @ Mohd. Saeed, involved in Case Crime No. 131 of 2020, under Sections 376, 504, 506 IPC, Police Station Fursatganj, District Amethi. Learned Additional Government Advocate Sri Vishnu Deo Shukla, Advocate on behalf of the State is present.
2. Counter affidavit on behalf of the State has already been filed and rejoinder thereto is also on record.
3. Learned counsel referred the First Information Report which he told, registered after the application under Section 156(3) of the Cr.P.C. was allowed by the concerned Magistrate.
4. Briefly stating, it is complained in the First Information Report that at about 8 p.m. in the night of 07.05.2020, the complainant (whose name shall not be disclosed and the word 'complainant/victim' shall be read hereinafter wherever her reference is needed), went in the garden of Hazi Sultan situated near her house where the present accused-applicant Nan Bhaiya @ Mohd. Saeed committed rape on her and explained her that since both of them belong to the same caste, they will enter into marriage after some time, therefore she should not discreet the fact of sexual relation between them to any body else. Without specifying the time and date after the incident dated 07.05.2020, the complainant/victim has further stated that when she insisted to enter into marriage, the accused-applicant abused and threatened to beat her which led her to lodge the FIR. Further when she was produced before the court of Magistrate for recording the statement under Section 164 of the Cr.P.C., pursuant to lodging of the FIR, she stated, some times in May, 2020, the accused-applicant called telephonically early in the morning at about 4 a.m. to come his house, when she reached there he brought her to his brother's home and committed rape on her. Thereafter he called her again in the garden of Hazi Sultan and then also committed rape. She further stated that the mobile phone was provided by the accused-applicant himself to her for keeping in contacts. The grievance set forth in the complaint is the breach of promise to marry sexual intercourse made with her by the accused-applicant.
5. Learned counsel for the accused-applicant submitted that the fact emerging out from the First Information Report and the statement under Section 164 of the Cr.P.C. with regard to the consensual sexual intercourse and thereafter lodging of the First Information Report with allegation of false promise to marry intended to make sexual intercourse makes the case doubtful as the complainant/victim herself is of 24 years' age, a well grown girl and she admittedly entered consensually in sexual relations with the accused-applicant. The accused-applicant does not have criminal antecedent, is a local resident and also an relative of the complainant herself, therefore there is no possibility of fleeing away from the process of the Court. He is ready and willing to face the trial. If he is released on bail, the same would be helpful for him in putting his defence efficaciously and properly.
6. On the other hand, learned AGA, on the basis of material made available to him and the counter affidavit filed on behalf of the State, has no rebuttal to the admitted consensual sexual intercourse between the complainant and the accused-applicant on the alleged assurance of promise of marriage.
7. In the statement under Section 164 Cr.P.C., the very inception of the physical and sexual relation is alleged to have occasioned when the present accused-applicant made telephonic call to her at 4 a.m. in the early morning to come at his house. She went to his house where he made physical and sexual relation with her and then again called the complainant on 07.05.2020 in the garden of Hazi Sultan at about 8 p.m. in the night. She again went there and the accused-app
