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The court denied anticipatory bail to Ahsan Ali, who is accused of rape and related offenses based on allegations of making false promises of marriage to the victim. The court found that the evidence suggested the applicant had no intention of marrying the victim, and the consent given by her was based on a misconception of fact. The decision was made considering the serious nature of the allegations and the ongoing investigation.

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7 views5 pages

Document 6copy

The court denied anticipatory bail to Ahsan Ali, who is accused of rape and related offenses based on allegations of making false promises of marriage to the victim. The court found that the evidence suggested the applicant had no intention of marrying the victim, and the consent given by her was based on a misconception of fact. The decision was made considering the serious nature of the allegations and the ongoing investigation.

Uploaded by

Vikas Sahu
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Neutral Citation No.

- 2023:AHC:107408

Court No. - 84

Case :- CRIMINAL MISC ANTICIPATORY BAIL


APPLICATION U/S 438 CR.P.C. No. - 3885 of 2023

Applicant :- Ahsan Ali


Opposite Party :- State of U.P.
Counsel for Applicant :- Mohammad Belal
Counsel for Opposite Party :- G.A.,Deepak Singh Patel,Shadab
Ali

Hon'ble Nalin Kumar Srivastava,J.

1. This application has been moved on behalf of the applicant


Ahsan Ali seeking anticipatory bail in Case Crime No. 76 of 2023,
under Sections 376, 504, 506, 507 IPC, Police Station Civil Lines,
District Muzaffarnagar.

2. Heard learned counsel for the applicant, learned A.G.A. for the
State and perused the record.

3. It has been argued by the learned counsel for the applicant that
applicant is innocent and he has apprehension of his arrest in the
above-mentioned case, whereas there is no credible evidence
against him. Allegations levelled against the applicant are false. It
is further submitted that neither any physical relations took place
between the applicant and the prosecutrix nor applicant had made
any promise to marry her and the allegations made in this regard in
the F.I.R. are totally false. The investigation of the case is going
on. Since the applicant is a police constable, he has been
implicated in this case only to compel him to get the prosecutrix
married with him. It is also submitted that a complaint case in this
regard has already been filed by the applicant against the
prosecutrix. It has been submitted that in case applicant is granted
anticipatory bail, he shall not misuse the liberty of bail and would
obey all conditions of bail. In support of his submissions, learned
counsel for applicant has placed reliance upon a decision of
Hon'ble Apex Court in Naim Ahamed vs. State (NCT of Delhi),
2023 1 Supreme 623.

4. Learned A.G.A. opposed the prayer for anticipatory bail and


drew the attention of the Court to the statement of the victim
recorded under Section 164 CrPC wherein a detailed chain of
incidents has been stated by her as to how the applicant on the
false promise of marriage made sexual relationship with her and
subsequently refused to marry her. The prosecutrix would not have
surrendered herself to the sexual advances of the applicant, but for
his false promise to marry.

5. I have considered the rival submissions made by the learned


counsel for the parties.

6. In this matter, according to the prosecution story, prosecutrix


and applicant were facebook friends and subsequently they met
each other and physical relations were established between them.
As per F.I.R., the applicant emotionally blackmailed the
prosecutrix and on false pretext of marriage, made physical
relations with her and after a period of about five years ultimately
he refused to marry the prosecutrix.

7. It is evident from the allegations contained in the First


Information Report that the prosecutrix gave consent for the sexual
intercourse as the applicant had promised to marry her. The
question is whether the consent of the prosecutrix was a voluntary
consent or it was a consent based on mis-conception of facts. In
case of rape under Section 376 IPC, more particularly, in cases
where consent is obtained by giving false promise of marriage, it
has to be ascertained whether the accused did not have the
intention to marry the prosecutirx right from the inception. The
law is well settled on this aspect of the matter.

8. In Kaini Rajan v. State of Kerala, (2013) 9 SCC 113, the


Hon'ble Apex Court has observed as under :

"12. Section 375 IPC defnes the expression "rape", which indicates that the
first clause operates, where the woman is in possession of her senses, and
therefore, capable of consenting but the act is done against her will; and
second, where it is done without her consent; the third, fourth and fifth, when
there is consent, but it is not such a consent as excuses the offender, because it
is obtained by putting her on any person in whom she is interested in fear of
death or of hurt. The expression "against her will" means that the act must
have been done in spite of the opposition of the woman. An inference as to
consent can be drawn if only based on evidence or probabilities of the case.
"Consent" is also stated to be an act of reason coupled with deliberation. It
denotes an active will in the mind of a person to permit the doing of an act
complained of. Section 90 IPC refers to the expression "consent". Section 90
though, does not define "consent", but describes what is not consent.
"Consent", for the purpose of section 375, requires voluntary participation
not only after the exercise of intelligence based on the knowledge of the
significance and moral quality of the act but after having fully exercised the
choice between resistance and assent. Whether there was consent or not, is to
be ascertained only on a careful study of all relevant circumstances."
9. In Deepak Gulati v. State of Harayana, (2013) 7 SCC 675,
the Hon'ble Supreme Court has observed like this:—

"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 fde 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 fulflling 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 fde, and that he had clandestine motives.

10. 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."

11. The term "Consent" is defined under Section 90 of the Penal


Code, 1860 thus:—

"90. Consent known to be given under fear or misconception : A consent is


not such a consent as is intended by any section of this Code, if the consent is
given by a person under fear or injury, or under a misconception of fact, and
if the person doing the act knows, or has reason to believe, that the consent
was given in consequence of such fear or misconception; or
12. Bare reading of this provision makes it clear that the consent
will be vitiated if it is obtained by putting the prosecutrix under
fear of injury or under a misconception of fact and, if, the person
doing the act knows that the consent was given in consequence of
such fear or misconception. Thus, the essential requirement is that
the consent must have been obtained under fear of injury or under
misconception of fact and the accused must be aware that the
consent was given in consequence of such fear or misconception.

13. On the basis of these settled principles, it will have to be


examined whether the applicant did not intend to marry the
prosecutrix.

14. In this matter, it is evident that the applicant had the intention
to deceive the prosecutrix by making false promise of marriage. In
this view of the matter, the promise given by the accused was false
and was given with the intention of establishing physical relations
with the prosecutrix.

15. In the case of Anurag Soni v. State of Chhattisgarh, (2019)


13 SCC 1, the facts were that the accused had given promise of
marriage to the prosecutrix. The prosecutrix submitted herself for
the sexual intercourse relying on this promise of the accused.
Thereafter, the accused went back on his promise and refused to
marry the prosecutrix and married another girl. The Honourable
Supreme Court observed thus:—

"14. Considering the aforesaid facts and circumstances of the case and the
evidence on record, the prosecution has been successful in proving the case
that from the very beginning the accused never intended to marry the
prosecutrix; he gave false promises/promise to the prosecutrix to marry her
and on such false promise he had physical relation with the prosecutrix; the
prosecutrix initially resisted, however, gave the consent relying upon the false
promise of the accused that he will marry her and, therefore, her consent can
be said to be a consent on misconception of fact as per Section 90 IPC and
such a consent shall not excuse the accused from the charge of rape and
offence under Section 375 IPC."

16. So far as the law laid down by the Hon'ble Supreme Court in
the judgment Naim Ahamed (supra), relied upon by the learned
counsel for the applicant, is concerned, the applicant cannot get
any help from the same, as the facts of the present case are on
different footing.

17. Hence, considering the settled principles of law regarding


anticipatory bail, nature of accusation, role of applicant, all
attending facts and circumstances of the case and the fact that
allegations are serious in nature, without expressing any opinion
on the merits of the case, in my view, it is not a fit case for
anticipatory bail to the applicant. Prayer made in the application is
refused.

18. The application is rejected.

Order Date :- 17.5.2023

safi

Digitally signed by :-
MAHBOOB SAFI
High Court of Judicature at Allahabad

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