IN THE HIGH COURT OF DELHI AT NEW DELHI
BAIL APPLN. 311/2013
ROHIT CHAUHAN….. Petitioner
Through Mr. B.S. Rana with Mr.T, Mr.Vijender Bhardwaj and Mr. Satyam Sisodiya, Advs.
STATE NCT OF DELHI….. Respondent
Through Mr. Navin Sharma, APP for a State.
Mr.MasroorAlam Khan, Adv. for a complainant.
CORAM: HON’BLE MR. JUSTICE KAILASH GAMBHIR
ORDER : 22.05.2013
- By this focus filed underneath Section 438 Cr.P.C. a postulant seeks extend of anticipatory bail.
- The postulant herein is indicted of committing a corruption underneath Sections 376/506/328 IPC in FIR No. 39/2013 purebred with PS Rani Bagh. As per a prosecuterix, Ms.Rupali Thakur it is purported that she had an eventuality with a petitioner, Rohit Chauhan for a final 3 years and during this duration a postulant had earthy cognisance with her on a guarantee that he would marry her.
- As per a complainant, who is benefaction in court, a postulant took a Bail Appn. 311/2013 Page 1 complainant to his chateau during Rishhi Nagar, Rani Baghon 14.2.2010 on a stratagem of introducing her to his mother, though given there was no one benefaction in his house, he forcibly had earthy attribute with her. It is also a box of a prosecutrix, that when she attempted to shout, afterwards a postulant daunted her that he would kill her and denounce her and during a same time he asked her not to worry as he desired her and would marry her butif in box she discloses a pronounced attribute to anyone afterwards a postulant would mistreat himself physically. It is also a box of a prosecutrix that a postulant also gave certain pills to her so that she would not conceive. It is serve purported by a prosecutrix that a postulant also threatened to kill her family members and to uncover her pornographic videos to her kin and upload a same on ‘YouTube’, if she dared to exclude to say earthy family with him. It is also a box of a prosecuterix, that on 9.7.2012, a postulant administered some drug in her cold drink, that she drank and again was forced to have earthy family with him. It is also a box of a prosecuterix that on 13.7.2012, she filed a censure during Police Station, Shalimar Bagh that was after eliminated to Police Station Rani Bagh, where a postulant and his family members were called by a military and they gave stipulation that they will arrange a matrimony of a postulant with a complainant usually if a complainant withdraws a pronounced complaint. As per a complainant, a matrimony was solemnized during AryaSamajMandir, Bail Appn. 311/2013 Page 2 HaritVihar, Burari, Delhi on 10th August, 2012, where a family of a postulant i.e. his mom Kiran, hermit Kitty, cousin hermit Vishnu Yadav, petitioner’s MassiPoonam, petitioner’s other Massa and Massi were all present. It is also a box of a prosecutrix that after a solemnisation of a pronounced marriage, a postulant did not take her to his chateau even for a day and rather after dual days of marriage, a postulant and his family members took a prosecutrix to Arya Samaj Mandir, kick her and forcibly took her signatures on one paper for dissolving a pronounced marriage. It is also a box of a prosecuterix that after a marriage, a postulant and his family members visited her locality several times and abused her besides formulating bother outward her house. It is also a box of a prosecuterix that her sister was also threatened whenever she used to go to her school. It is also a box of a prosecuterix that on 3.11.2012, she again done a censure opposite a postulant and his family members in Police Station Shalimar Bagh, and when they were called by a police, they had demanded for one prosaic and Rs. 20 lakhs if a prosecutrix wanted to live with them. Thereafter, a censure was filed by a prosecutrix with a Crime Against Women Cell, Maurya Enclave, so as to pursue her censure antiquated 13th July, 2012.
- Advancing a arguments on interest of a petitioner, Mr. B.S. Rana, Advocate, submits that a postulant was abducted from his chateau on 9.8.2012 during about 9 p.m. and he was exceedingly beaten by a military in a Bail Appn. 311/2013 Page 3 military hire and was taken to AryaSamajMandir, HaritVihar, Burari, Delhi, where he was forced to celebrate a aforesaid matrimony with a complainant. To support his arguments warn for a postulant placed faith on some of a photographs placed on record wherein a postulant can be seen in a lane fit and some military officials holding photographs of a matrimony from his mobile. It is also a box of a postulant that a complainant extorted a sum of Rs. 2.50 lakhs form a postulant and his family for removing a pronounced matrimony dissolvedand vide allotment assistance antiquated 10th August, 2012, that was duly sealed by both a parties and their relatives, a pronounced matrimony was announced nothing and void. It is also a box of a postulant that on 22nd January, 2013, a mom of a postulant lodged a censure with a Commissioner of Police to move scold contribution to a believe of a police, as to how a postulant was forced to marry a prosecutrix and how he was blackmailed to compensate a pronounced volume of Rs. 2.50 lakhs to a prosecutrix. It is also a box of a postulant that when a mom of a postulant lodged a complaint, it is usually afterward that a respondent got a pronounced box purebred opposite a postulant on 30th January, 2013. Counsel for a postulant serve submits that a postulant and a complainant were famous to any other for a final 3 years and during that period, both of them startedloving any other and a earthy cognisance common by both of them was consensual and therefore, there is no doubt of a Bail Appn. 311/2013 Page 4 postulant ever raping a complainant. Counsel also submits that a postulant had already filed a polite fit to find direct of stipulation to announce a pronounced matrimony as nothing and blank and a pronounced fit is tentative ordering before a polite Court. Counsel furtherstates that after solemnization of a pronounced matrimony a complainant lodged a censure opposite a postulant after a opening of roughly 3 years.
- Counsel for a postulant serve submits that a complainant never challenged a pronounced assistance of termination of matrimony and a pronounced censure was lodged by a prosecutrix usually with a perspective to extract some-more income from a postulant and his family. During a march of a arguments, warn for a postulant has also placed on record certain photographs indicating as to how allege a complainant is. Counsel serve submits that a photographs make it apparent that a prosecutrix can be seen dressed inappropriately, carrying splash while sitting subsequent to some boy. It could also be seen that she is lighting cigarette for him.
- Based on a above submissions, warn for a postulant submits that a postulant has been secretly concerned by a respondent in a benefaction case.
- The benefaction bail focus of a postulant has been strongly opposite by Mr Navin Sharmalearned APP for a State duly assisted by a warn representing a complainant. Mr Navin Sharma submits that a postulant intimately exploited a prosecutrix on a stipulation of marrying Bail Appn. 311/2013 Page 5 her nonetheless he never dictated to do so. Counsel also submits that there are specific allegations intended by a complainant opposite a petitioner, forcing a complainant to have passionate family with her and on many occasions he even threatened to kill her and denounce her. On one arise he even churned some drug in her cold splash and thereafter, common earthy cognisance with her. He also blackmailed a complainant that he would upload her pictures/ videos on a ‘YouTube’ if she refused to say passionate family with him. Counsel serve submits that a postulant was never forced to marry a complainant though a military officials were deployed by a area SHO in polite uniform to safeguard that no unfavourable occurrence takes place during a time of solemnization of a marriage. Counsel also submits that a postulant has fake and built a assistance of divorce antiquated 11th August, 2012 as on enquiry it was found that a pronounced divorce assistance was never notarized by SaritaGarg, Advocate. Counsel also submits that as per a censure antiquated 22.1.2013 filed by a mom of a postulant to a SHO Shalimar Bagh, a prosecutrix left for Jaipur immediately on a following day of a pronounced matrimony and she had returned to Delhi after 3 days. Counsel for a State serve submits that if as per a mom of a postulant she was during Jaipur on a following day of her matrimony afterwards how could she have sealed a divorce assistance and got a same attested from a notary.
- I have listened schooled warn for a parties during substantial length and Bail Appn. 311/2013 Page 6 given my concerned care to a arguments modernized by them. Before we ensue to confirm a aforesaid bail application, it would be impending to plead some new judgments in a pronounced context.
- The visualisation of a Apex Court, in a box of Deepak Gulati V. State of Haryana,Criminal Appeal No. 2322/2010, a Hon’ble Supreme Court while traffic with an interest filed by a appellant convicted for a corruption punishable underneath Sections 365 and 376 of a Indian Penal Code, 1806, hold as under:-
“14. The undisputed contribution of a box are as under: I. The prosecutrix was 19 years of age during a time of a pronounced incident.
- She had desire towards a appellant, and had frankly left with him to Kurukshetra to get married. III. The appellant had been giving her stipulation of a fact that he would get married to her.
- The earthy attribute between a parties had clearly grown with a agree of a prosecutrix, as there was conjunction a box of any resistance, nor had she lifted any censure anywhere during any time notwithstanding a fact that she had been vital with a appellant for several days, and had trafficked with him from one place to another. V. Even after withdrawal a hostel of Kurukshetra University, she concluded and proceeded to go with a appellant to Ambala, to get married to him there.
- Consent competence be demonstrate or implied, coerced or misguided, performed frankly or by deceit. Consent is an act of reason, accompanied by deliberation, a mind weighing, as in a balance, a good and immorality on any side. There is a transparent eminence between rape and consensual sex and in a box like this, a justice contingency unequivocally delicately inspect either a indicted had indeed wanted to marry a victim, or had mala fide motives, and had done a fake guarantee to this outcome usually to infer his lust, as a latter falls within a ambit of intrigue or deception. There is a eminence between a small crack of a promise, and not fulfilling a fake promise.
Bail Appn. 311/2013 Page 7
- Hence, it is transparent that there contingency be adequate justification to uncover that during a applicable time, i.e. during initial theatre itself, a indicted had no goal whatsoever, of gripping his guarantee to marry a victim. There may, of course, be circumstances, when a chairman carrying a best of intentions is incompetent to marry a plant overdue to several destined circumstances. The “failure to keep a guarantee done with honour to a destiny capricious date, due to reasons that are not unequivocally transparent from a justification available, does not always volume to myth of fact. In sequence to come within a definition of a tenure myth of fact, a fact contingency have an clear relevance.” Section 90 IPC can't be called into assist in such a situation, to atonement a act of a lady in entirety, and bind rapist guilt on a other, unless a justice is positive of a fact that from a unequivocally beginning, a indicted had never unequivocally dictated to marry her.
- The benefaction box is factually unequivocally identical to a box of Uday (Supra), wherein a following contribution were found to exist:
- The prosecutrix was 19 years of age and had adequate comprehension and majority to know a stress and probity compared with a act she was consenting to. II. She was unwavering of a fact that her matrimony competence not take place overdue to several considerations, including a standing factor.
III. It was formidable to ascribe to a accused, believe of a fact that a prosecutrix had consented as a effect of a myth of fact that had arisen from his guarantee to marry her.
- There was no justification to infer conclusively, that a appellant had never dictated to marry a prosecutrix.
- To conclude, a prosecutrix had left her home voluntarily, of her possess giveaway will to get married to a appellant. She was 19 years of age during a applicable time and was, hence, able of bargain a complications and issues surrounding her matrimony to a appellant. According to a chronicle of events supposing by her, a prosecutrix had called a appellant on a series given to her by him, to ask him because he had not met her during a place that had been pre-
decided by them. She also waited for him for a prolonged time, and when he finally arrived she went with him to a Karnalake where they indulged in passionate intercourse. She did not lift any conflict during this theatre and done no complaints to anyone. Thereafter, she also went to Kurukshetra with a appellant, where she lived with his relatives. Here to, a prosecutrix willingly became insinuate with a appellant. She then, for some reason, went to live in a hostel during Kurukshetra University illegally, Bail Appn. 311/2013 Page 8 and once again came into hit with a appellant during a Birla Mandir. Thereafter, she even proceeded with a appellant to a aged bus-stand in Kurukshetra, to leave for Ambala so that a dual of them could get married in justice during Ambala. However, here they were apprehended by a police.
- If a prosecutrix was in fact going to Ambala to marry a appellant, as stands entirely determined from a justification on record, we destroy to know on what basement a claim of “false guarantee of marriage” has been lifted by a prosecutrix. We also destroy to sense a resources in that a assign of deceit/rape can be intended opposite a appellant, in light of a afore-mentioned fact situation.”
10.While traffic with a anticipatory bail focus of an indicted of committing a same offence, this Court in a box of Mohd. Iqbal V. State , Bail Application no. 2145 of 2009, hold as under:-
“There is an aged Jewish observant “if we are tighten when we should be distant, we will be apart when we should be close”. It is for both masculine and lady to quell themselves and not to indulge in insinuate activities before to a marriage. Undoubtedly it is responsibility, cool ethical, both, on a partial of group not to feat any lady by fluctuating fake guarantee or by divergent acts to force or satisfy a lady for passionate relationship. But ultimately, it is lady herself who is a guardian of her possess body. Promise to marry competence or competence not cap into marriage. It is a primary shortcoming of a lady in a attribute or even differently to strengthen her honour, grace and modesty. A lady should not chuck herself to a masculine and indulge in promiscuity, apropos source of hilarity. It is for her to say her purity, purity and virtues”
- In another bail focus No. 1760 of 2012 traffic with a same offence, this Court hold as under:-
“Rape is one of a many barbarous and iniquitous crimes not usually opposite a plant of a rape though also opposite a multitude as a whole. The cases of rape, squad rape and digital rape are on boost and perpetrators of this evil and heartless crime are worse than even a beasts and merit to be dealt with a complicated hand. The whole republic is severely debating this emanate and there are proposals entrance onward Bail Appn. 311/2013 Page 9 that genocide chastisement should be a answer to understanding with a indicted concerned in such iniquitous crime. Having pronounced this, we am also compelled to observe here that no one should be authorised to trivialise a sobriety of corruption by misusing a same as a arms for reprisal or vendetta.”
12.It is abominable to see that rape rears a nauseous masquerade roughly any day. As per a National Crime Record Bureau, in India, a rape is committed any 20 minutes. Rape being a fastest flourishing crime is positively one of a many deplorable, martial and atrociousact committed opposite a grace of a woman. Rape has been hold to be even some-more critical than murderwhich not usually destroysthe lady physically though also shatters her innerself by destroying her any vital impulse emotionally and psychologically.
- Rape is a crime opposite one’s mind, essence and reputation. Rape leaves a permanent injure on a life of a plant and it becomes horrible for a plant of rape to lead a cool and good reputable life in a society. It is unequivocally hapless that there is a high boost in a rape instances and voracious maniacs are not even provident a girls of a unequivocally proposal age. Some of a new rape cases have been so offensive that a whole republic protestedto reject these barbarous acts and lifted a voice to quell a pronounced threat by inflicting some-more critical punishment. The Government also soon allocated Justice J.S. Verma Committee to examination laws on crimes opposite women, that endorsed certain thespian changes in a Criminal law relating to offences opposite women.
14.Undoubtedly there is a plural boost in a crime concerning rapes, though all a rape cases that are filed have their possess particular story and significant matrix. While many of a cases competence be genuine, wherein a lady is a plant of this offensive crime, or has been forced, blackmailed, threatened to enter into earthy attribute with a masculine on a fake stratagem of matrimony with a solitary vigilant to physically feat a lady though there competence be cases where both persons out of their possess will and choice, rise a earthy relationship. Many of a cases are being reported by those women who have consensual earthy attribute with a masculine though when a attribute breaks due to one or a other reason, a women use a law as a arms for reprisal and personal fight to extract income and infrequently even to force a child to get married to her. Out of annoy and frustration, they tend to modify such consensual sex as an occurrence of rape, defeating a unequivocally purpose of a provision. There is a transparent division between rape and consensual sex and in cases where such controversies are involved, a justice contingency unequivocally carefully inspect a intentions of both a people concerned and to check if even a lady on a other palm is genuine or had malafide motives. Cases like these not usually make hoax of a dedicated establishment of matrimony though also increase a statistics of rape cases that serve deprecates a possess society.
- In a contribution of a benefaction case, here is a complainant who appears to be utterly an ultra-modern lady with an open opinion towards life, enjoying ethanol in a association of menwhich is transparent from a photographs placed on record, that have not been denied by a prosecutrix benefaction in court.She does not seem to be such a exposed lady that she would not lift her voice on being immensely exploited over such a prolonged duration of time. As per a prosecutrix, she had a earthy attribute with a postulant for a final some-more than 2 ½ years and it is not usually a singular act of pity earthy cognisance though a same continued for roughly a prolonged duration of 3 years. There lies a probability that a postulant competence have afterwards refused to marry a prosecutrix and this refusal on a partial of a postulant gave a critical jar to a prosecutrix who afterwards with a assistance of police, solemnized a matrimony with him, in a diminutive hours of a night when postulant was in his infrequent apparels(track suit). It is usually on 30.01.2013, that a complainant lifted her voicefor a initial time and done allegations of rape opposite a petitioner. It is an certified box that a pronounced matrimony eventually did not unqualified as a complainant was never brought to a matrimonial home and a postulant has already filed a polite fit to find direct of stipulation for dogmatic a pronounced matrimony as nothing and void.
16.The justice can also not be preoccupied of a fact that a matrimony between a complainant and a postulant had indeed taken place and both a parties have not doubtful this fact. Therefore, this business by itself entitles a postulant to a extend of a anticipatory bail. We are not commenting here on a resources that led to a solemnisation of a pronounced matrimony as there is a polite fit already tentative before a court.It would be inestimable to discuss that being a plant of such a reprehensible crime, one should board a censure immediately, or within a reasonable duration of time unless there are sufficient reasons to explain a prolonged delay. Delay in camp an FIR, in such like cases can eventually lessen a chances of conviction, as due to such delay, a medical justification and a other inconclusive justification competence frequency be accessible to support a box of prosecution.
17.It is a staid position of law, that any box is to be dealt formed on a particular significant pattern and no set element or true coupler regulation can be practical privately while traffic with bail matters where usually prima facie perspective can be taken to conclude a contribution in a given case.
- Considering a contribution of a benefaction case, in light of a aforesaid contention and a element on record, we am prone to extend anticipatory bail to a petitioner. Accordingly in a eventuality of arrest, a postulant shall be expelled on bail theme to furnishing of his personal holds in a Bail Appn. 311/2013 Page 13 sum of Rs. 50,000 with one collateral of a like volume to a compensation of a impediment officer.
- It is destined that a postulant and his family members shall not revisit a prosecutrix or try to dominate her.
- The benefaction anticipatory bail focus stands likely of. It is systematic accordingly.
KAILASH GAMBHIR, J
MAY 22, 2013