Court rejected anticipatory bail application for rape case alleging false promise of marriage. Held that applicant had no intention to marry initially, constituting misconception of fact vitiating consent under S. 90 IPC. Bail denied.
Prayer for anticipatory bail under Section 438 CrPC is rejected.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Neutral Citation No. - 2023:AHC:181389
Court No. - 73
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 9744 of 2023
Applicant :- Harendra
Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Vijendra Kumar Mishra,Pravesh Kumar Tripathi
Counsel for Opposite Party :- G.A.
Hon'ble Nalin Kumar Srivastava,J.
case applicant is granted anticipatory bail, he shall not misuse the liberty of bail and would obey all conditions of bail.
"14. ... In the present case, the "misconception of fact" alleged by the complainant is the appellant's promise to marry her. Specifically in the context of a promise to marry, this Court has observed that there is a distinction between a false promise given on the understanding by the maker that it will be broken, and the breach of a promise which is made in good faith but subsequently not fulfilled. In Anurag Soni v State of Chhattisgarh, (2019) SCC OnLine SC 509, this Court held:
"37. The sum and substance of the aforesaid decisions would be that if it is established and proved that from the inception the accused who gave the promise to the prosecutrix to marry, did not have any intention to marry and the prosecutrix gave the consent for sexual intercourse on such an assurance by the accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact as per Section 90 of the IPC and, in such a case, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined under Section 375 of the IPC and can be convicted for the offence under Section 376 of the IPC."
8. Similar observations were made by this Court in Deepak Gulati v State of Haryana, (2013) 7 SCC 675 ("Deepak Gulati"):
"21. 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"
Further, in paragraph 16 of the aforesaid judgment explaining the terms - misconception of fact, consent and breach of promise, the Hon'ble Supreme Court observed that :
"16. ... Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a "misconception of fact" that vitiates the woman's "consent". On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it. The "consent" of a woman under Section 375 is vitiated on the ground of a "misconception of fact" where such misconception was the basis for her choosing to engage in the said act. In Deepak Gulati this Court observed:
"21. 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.
the person, the likelihood of his influencing the course of investigation, or tampering with evidence including intimidating witnesses, llikelihood of fleeing justice, such as leaving the country, etc. It has further been held that Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail, or refuse it. Whether to grant or not is a matter of discretion.
Digitally signed by :- FAHAD NIYAZ High Court of Judicature at Allahabad
2 issues framed by the court
Whether anticipatory bail should be granted to the applicant in a rape accusation based on a false promise of marriage.
Whether the promise of marriage made by the applicant at the inception was false with no intention to fulfill.
Colour shows how this judgement treated each authority
Pramod Suryabhan Pawar Vs. The State of Maharashtra & Anr.Explained¶16
Pramod Suryabhan Pawar Vs. The State of Maharashtra & Anr., 2019 (9) SCC 608 · Who else cites this
Anurag Soni v State of ChhattisgarhExplained¶16
Anurag Soni v State of Chhattisgarh, (2019) SCC OnLine SC 509 · Who else cites this
Deepak Gulati v State of HaryanaExplained¶19
Deepak Gulati v State of Haryana, (2013) 7 SCC 675 · Who else cites this
Sushila Aggarwal and others vs. State (NCT of Delhi) and anotherDistinguished¶27
Sushila Aggarwal and others vs. State (NCT of Delhi) and another, (2020) 5 SCC 1 · Who else cites this
5 provisions across 2 enactments
Harendra
State Of U.P.
Nalin Kumar Srivastava
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
