Allowed

Nan Bhaiya @ Mohd. Saeed v. State of U.P.

Allahabad HC4 Jan 2022/1510/2021

Case brief

AI extract

What is this about?

The High Court allowed the bail application of an accused charged with rape under Section 376 IPC. The court observed that the prosecution case relied on consensual sexual relations initiated by a false promise of marriage, which does not vitiate consent under Section 90 IPC. Finding no prima facie case for rape and noting the lack of criminal antecedents, the applicant was granted bail.

What did the court decide?

The applicant was released on bail on furnishing a personal bond of Rs. 100,000/- and two sureties, subject to specific conditions regarding attendance and not seeking adjournments.

Nan Bhaiya @ Mohd. Saeed Vs State of U.P. — Bail and Remand | Allahabad HC (2022)

[AFR]

Court No. - 14

[CASE :- CRIMINAL MISC. BAIL APPLICATION No. - 1510 of 2021]

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Applicant :- Nan Bhaiya @ Mohd. Saeed Opposite Party :- State of U.P. Counsel for Applicant :- Akhlaq Ali,Devdutt Prakhar,Farooq Ayoob,Krishna Kumar Seth,Mohd. Islam Khan,Rekha Verma Counsel for Opposite Party :- G.A.

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Hon'ble Vikas Kunvar Srivastav,J.

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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.

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Counter affidavit on behalf of the State has already been filed and rejoinder thereto is also on record.

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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.

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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

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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 accusedapplicant.

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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.

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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.

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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

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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 accusedapplicant made sexual relation with her. Such making of sexual relation by the accused-applicant is acquiesced by the complainant allegedly on the promise to marry her by the accused-applicant. There is no single whisper in the First Information Report or in the statement of the complainant/victim before the court of Magistrate under Section 164 Cr.P.C. complaining that she was forced, put under fear or allured or otherwise for the purpose of getting her consent to make sexual relation.

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Section 90 of the IPC is quoted hereunder where the consent when would not be treated as valid consent is prescribed:-

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“90. Consent known to be given under fear or misconception. —A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of 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

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Consent of insane person. —if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or

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Consent of child. —unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.”

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The question is whether the complainant consented to sexual relation under any misconception of fact with regard to promise of marriage by the accused-applicant or was her consent based on fraudulent misrepresentation of marriage which the accused never intended to keep since the very inception of the relationship. There is no such allegation which made the consent invalid from the very inception rather she acquiesced in making sexual contact and therefore it is not possible to hold in the nature of evidence on record that the accused obtained her consent at the inception by

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putting her under any fear or otherwise. This is to keep into mind that she is a lady of 24 years' age, a well grown person of sound mind.

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For the purpose of deciding the bail plea of the accused-applicant arraigned under the offence punishable under Section 376 IPC, it is necessary to see prima facie whether on the evidence collected by the prosecution, particularly the statement of the prosecutrix, the accused may be considered and held to have committed rape on the complainant/victim of the case.

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Admittedly, the sexual intercourse, as alleged in the FIR and statement under Section 164 Cr.P.C. before the Magistrate, was established between accused and the complainant consensually. For the sake of ready reference Section 375 is quoted hereunder:-

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“Section 375. Rape. —A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:—

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(First) — Against her will.

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(Secondly) —Without her consent.

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(Thirdly) — With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

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(Fourthly) —With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

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(Fifthly) — With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

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(Sixthly) — With or without her consent, when she is under sixteen years of age. Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

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(Exception) —Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.]”

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The case of commission of rape, as set forth by the prosecution case in the First Information Report and the material collected by the Investigating Officer, is not made out.

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Before parting with the discussion, it would be relevant to quote here para 25 of the judgment of the Apex Court in the case of Uday Vs. State of Karnataka, (2003) 4 SCC 46:

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“25….It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances the promise loses all significance., particularly when they are overcome with emotions and passion and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well, and the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. In these circumstances it would be very difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In any even, it was not possible for the appellant to know what was in the mind of the prosecutrix when she consented, because there were more reasons than one for her to consent.”

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This is established principle of law that while assessing the entitlement of an accused to be released on bail, his role in the commission of offence with which, he is arraigned and the evidences as to his presence and involvement is to be given weight. In case the presence and involvement of accused is prima facie established then gravity of offence, apprehension as to the tampering of evidences and witnesses, if the accused is released on bail, are to be considered.

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In Prahlad Singh Bhati Vs. NCT, Delhi and another - (2001 4 SCC 280 ), Hon'ble the Supreme Court has held some parameters for grant of bail, which are being quoted hereunder:-

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"8. The jurisdiction to grant bail has to be exercised on the basis of well-settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused,

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reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the court dealing with the grant of bail can only satisfy it (sic itself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt."

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The purpose of the bail is neither to punish the accused-appellant by keeping him in jail or to teach him a lesson but the object of the bail is to ensure the presence of the accused-appellant during the trial. Hon'ble the Supreme Court in para 21, 22 and 23 of the judgment given in the case of Sanjay Chandra Vs. Central Bureau of Investigation reported in [(2012 1 SCC 40)-(Spectrum Scam Case)], has laid down certain objects of bail under Section 437 & 439 of the Cr.P.C. which are as follows:

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"21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.

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From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances.

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Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any

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imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson."

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Therefore, keeping into mind the valuable right of personal liberty and the fundamental principle not to disbelieve a person to be innocent unless held guilty and if he is not arraigned with the charge of an offence for which the law has put on him a reverse burden of proving his innocence as, held in the judgment of Hon'ble the Supreme Court in Dataram Singh Vs. State of U.P. and Others reported in [(2018) 3 SCC 22], I find force in the submission of learned counsel for the bail-applicant to enlarge him on bail.

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Considering the rival submissions of learned counsel for the parties, without expressing any opinion on the merits of the case and considering the nature of accusation, complicity of the accusedapplicant, gravity of the offence and the severity of punishment in case of conviction and the period for which he is in jail, I find force in the argument of learned counsel for the accused-applicant. The accused-applicant is entitled to be released on bail in this case.

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Let applicant- Nan Bhaiya @ Mohd. Saeed be released on bail in in Case Crime No. 131 of 2020, under Sections 376, 504, 506 IPC, Police Station Fursatganj, District Amethi, on his furnishing a personal bond worth Rs. 100,000/- and two reliable sureties of the like amount of two different sureties whose social and economic status shall be subject to satisfaction and verification of the court concerned subject to following additional conditions, which are being imposed in the interest of justice:-

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(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.

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(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

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(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.

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(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.

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[Vikas Kunvar Srivastav,J.]

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Order Date :- 04.01.2022 kkv/

Nan Bhaiya @ Mohd. Saeed v. State of U.P.

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Nan Bhaiya @ Mohd. Saeed v. State of U.P.

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