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Gaurav Harshadbhai Patel vs State Of Gujarat on 29 February, 2024

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Gujarat High Court

Gaurav Harshadbhai Patel vs State Of Gujarat on 29 February, 2024

NEUTRAL CITATION

R/CR.MA/4015/2024 ORDER DATED: 29/02/2024

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 4015
of 2024

GAURAV HARSHADBHAI PATEL
Versus
STATE OF GUJARAT

Appearance:
MR ND NANAVATI, SR. ADVOCATE, MR TUSHAR CHAUDHARY(5316) for
the Applicant(s) No. 1
MR HK PATEL, PUBLIC PROSECUTOR for the Respondent(s) No. 1
MR DINESH J PRAJAPATI, for the First Informant

CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

Date : 29/02/2024

ORAL ORDER

1. Leave to join the victim. Amendment to be carried out,
forthwith.

2. Learned Advocate, Mr. Prajapati, submitted that he has
received instructions to appear on behalf of the First Informant
and seeks permission to file vakalatnama and he also tendered
the affidavit on behalf of the victim, which is ordered to be
taken on record.

2.1 Permission is granted. Registry is directed to accept the
same.

3. Rule. Learned APP waives service for the Respondent-
State and learned Advocate, Mr. Prajapati, waives for the First

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Informant.

4. By way of the present petition under Section 438 of the
Code of Criminal Procedure, 1973, the petitioner has prayed to
release him on anticipatory bail in case of his arrest in
connection with the FIR registered as C.R. No.
11195034240054 of 2024 with Palanpur East Police Station,
District: Banaskantha, under
Sections 376(2)(n), 417 and
506(2) of the Indian Penal Code, 1860 (‘IPC’ in brief).

5. Learned Sr. Advocate, Mr. Nanavati, appearing with
learned Advocate, Mr. Chaudhary, for the petitioner submitted
that the first informant is a major and married lady of about 24
years of age and therefore, she was fully aware of the
repercussions and consequences of such a relationship. It was,
further, submitted that, as stated in the FIR, the alleged
offence, for the first time, took place in September, 2022 and
at that time no complaint or grievance was made with regard
to the same. Therefore, it was submitted that, looking to the
tenor of the FIR and the allegations made therein, at the most,
it can be said to be a consensual relationship between the two
major persons and since, the same became sore, the FIR came
to be filed in the year 2024. It was submitted that the first
informant, herself, was married, at the time of entering the
relationship with the petitioner, and therefore, there is no
question of the petitioner of making her false promise of
marriage and in fact, the said fact would indicate that no case
is made out for the offence under
Section 376 of the IPC.

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5.1 By making the above submissions, it was prayed that
considering the nature of allegations, role attributed to the
petitioner, the petitioner may be enlarged on anticipatory bail
by imposing suitable conditions.

6. Learned Advocate, Mr. Prajapati, appearing for the First
Informant, produced on record the affidavit of the first
informant, and strongly opposed this petition, stating that from
the FIR it is clearly revealed that the petitioner had given a
false promise of marriage to the first informant, so as to tempt
her to enter into relationship with him and thereafter, he
physically abused her. It was submitted that when the first
informant insisted that the petitioner should marry her, as per
the promises given by him, the petitioner had threatened her
by pointing gun at her. The attention of this Court was also
drawn to the order rejecting bail application of the petitioner
dated 16.02.2024, passed by the trial Court in Criminal Misc.
Application No. 151 of 2024 and it was submitted that the
learned Sessions Judge also has noted that for the purpose of
investigation, the custodial interrogation of the petitioner shall
be necessary and hence, this petition be rejected.

6.1 Learned Additional Public Prosecutor appearing on behalf
of the respondent-State produced on record the affidavit of the
concerned IO and submitted that the petitioner does possess a
valid license for keeping firearm, but, he has not disclosed
before the concerned authority, as to where the said weapon is
kept and as the same is required to be recovered and the
relevant sections are also to be added, it was prayed that this

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petition be rejected.

7. Heard the learned Advocates for the respective parties and
perused the papers.

8. Having heard the learned advocate for the parties and
having perused the investigation papers, what emerges is that
the victim, before entering into relationship with the petitioner,
had already been married at Village Mumanvas and her
husband is working at Ahmedabad and that the she is residing
at her parental home. From the record it is also revealed that
the victim has studied up to Standard-12 and has also done
the course of nursing. It is also revealed that, while the victim
was working as a nurse at Mavjat Hospital, she came into
contact with the petitioner, who, being a doctor by profession,
was also working in the very same hospital.

8.1 It is the case of the first informant that the petitioner
made false promises of marrying her and thereby, physically
abused her for about two years. Further, as per the FIR, the
first incident, punishable under
Section 376 of the IPC, took
place in September, 2022, but, at that time, the first informant
neither raised any grievance nor made any complaint about
the same to anyone, including her family members. It is,
further, revealed from the FIR that such relationship continued
for about two years, i.e. till the filing of the FIR in the year
2024, and in the interregnum period also there was no
complaint made by her to anyone about the same. Here, the
fact remains that, at the relevant point of time, the petitioner

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was aged about 24 years and was already a married lady and
therefore, she was very well aware the consequences of her
actions, so also the fact that she cannot marry the present
petitioner, while her first marriage is in existence.

8.2 In above view of the matter, it would be relevant to refer
to decision of the Hon’ble Apex Court in the case of ‘Sonu
alias Subhas Kumar v/s. State of Uttar Pradesh’, reported
in AIR 2019 SC 4010, wherein, at Paragraphs- 7 and 11, it is
held as under :-

“7. On the basis of the rival submissions and with the
assistance of the counsel, we have perused the FIR. The
FIR specifically records that the second respondent had
developed a friendship with the appellant and that he
had assured that he would marry her. The FIR then
records that the appellant and the second respondent
developed a physical relationship which spread over a
period of one and a half years, during the course of
which the second respondent conversed with the parents
and sister of the appellant. It has been alleged in the FIR
that the parents of the appellant were agreeable to the
couple getting married. As a matter of fact, the appellant
returned to his home town at Jhansi on 5 January 2018
when he had made a phone call to her stating that she
should come and visit him so that they can get married.
On travelling to Jhansi at the behest of the appellant, the
second respondent was informed by the father of the 5
appellant that the appellant did not wish to marry her.

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The contents of the statement under Section 164 of
CrPC also indicate that the second respondent had
“voluntarily developed relationship of husband-wife with
him”. The second respondent has then stated that “now,
he and his family members are refusing to marry with
me”. The second respondent has further stated that “my
sole grievance is that Sonu is refusing to marry with me.

XXX XXX XXX

11. Bearing in mind the tests which have been
enunciated in the above decision, we are of the view that
even assuming that all the allegations in the FIR are
correct for the purposes of considering the application for
quashing under
Section 482 of CrPC, no offence has
been established. There is no allegation to the effect that
the promise to marry given to the second respondent
was false at the inception. On the contrary, it would
appear from the contents of the FIR that there was a
subsequent refusal on the part of the appellant to marry
the second respondent which gave rise to the
registration of the FIR. On these facts, we are of the view
that the High Court was in error in declining to entertain
the petition under
Section 482 of CrPC on the basis that
it was only the evidence at trial which would lead to a
determination as to whether an offence was
established.”

8.3 In the case of ‘Dr. Dhruvaram Murlidhar Sonar v/s.
State of Maharashtra’, reported in (2019) 18 SCC 191, the
Hon’ble Apex Court observed as under at Paragraph-23

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thereof;

“23. Thus, there is a clear distinction between rape and
consensual sex. The court, in such cases, must 16 very
carefully examine whether the complainant had actually
wanted to marry the victim or had mala fide 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 also a distinction between mere
breach of a promise and not fulfilling a false promise. If
the accused has not made the promise with the sole
intention to seduce the prosecutrix to indulge in sexual
acts, such an act would not amount to rape. 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 the misconception
created by 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. Such cases must be
treated differently. If the complainant had any mala fide
intention and if he had clandestine motives, it is a clear
case of rape. The acknowledged consensual physical
relationship between the parties would not constitute an
offence under
Section 376 IPC.”

8.4 The latest in the line is the order of the Hon’ble Apex
Court in the case of ‘Naim Ahamed v/s. State (NCT of
Delhi)’, reported in 2023 LiveLaw (SC) 66, wherein, at

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Paragraphs- 19 and 20, it is held as under :-

“19. After duly examining the record in the light of the
submissions made by the learned counsels for the
parties, following facts have emerged: –

(i) Prosecutrix was a married woman having three
children.

(ii) Accused was staying in a tenanted premises
situated in front 17 of the house of the prosecutrix.

(iii) Though initially hesitant, the prosecutrix
developed liking for the accused, and both started
having sexual relationship with each other.

(iv) The prosecutrix delivered a male child on
28/10/2011 from the loin of the accused.

(v) The prosecutrix went to the native place of the
accused in 2012 and came to know that he was a
married man having children. (

vi) The prosecutrix still continued to live with the
accused in separate premises.

(vii) The prosecutrix and her husband took divorce
by mutual consent in 2014 and thereafter
prosecutrix permanently left her three children with
her husband.

(viii) The prosecutrix lodged the complaint on 21st
March, 2015 alleging that she had consented for
sexual relationship with the accused as the accused
had promised her to marry and subsequently did not
marry.

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20. The bone of contention raised on behalf of the
respondents is that the prosecutrix had given her
consent for sexual relationship under the misconception
of fact, as the accused had given a false promise to
marry her and subsequently he did not marry, and
therefore such consent was no consent in the eye of law
and the case fell under the Clause – Secondly of
Section
375 IPC. In this regard, it is pertinent to note that there is
a difference between giving a false promise and
committing breach of promise by the accused. In case 18
of false promise, the accused right from the beginning
would not have any intention to marry the prosecutrix
and would have cheated or deceited the prosecutrix by
giving a false promise to marry her only with a view to
satisfy his lust, whereas in case of breach of promise,
one cannot deny a possibility that the accused might
have given a promise with all seriousness to marry her,
and subsequently might have encountered certain
circumstances unforeseen by him or the circumstances
beyond his control, which prevented him to fulfill his
promise. So, it would be a folly to treat each breach of
promise to marry as a false promise and to prosecute a
person for the offence under
Section 376. As stated
earlier, each case would depend upon its proved facts
before the court.”

8.5 Further, the Hon’ble Apex Court in the case of
‘Bhadresh Bipinbhai Sheth Vs. State of Gujarat’, reported

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in AIR 2015 SC 3090, has delineated the following factors and
parameters that need to be taken into consideration while
dealing with the anticipatory bail;

“(a) The nature and gravity of the accusation and the
exact role of the accused must be properly
comprehended before arrest is made;

(b) The antecedents of the applicant including the fact as
to whether the accused has previously undergone
imprisonment on conviction by a court in respect of any
cognizable offence;

(c) The possibility of the applicant to flee from justice;

(d) The possibility of the accused’s likelihood to repeat
similar or other offences;

(e) Where the accusations have been made only with the
object of injuring or humiliating the applicant by arresting
him or her;

(f) Impact of grant of anticipatory bail particularly in cases
of large magnitude affecting a very large number of
people;

(g) The courts must evaluate the entire available material
against the accused very carefully. The court must also
clearly comprehend the exact role of the accused in the
case. The cases in which the accused is implicated with

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the help of Sections 34 and 149 of the Penal Code, 1860
the court should consider with even greater care and
caution, because over implication in the cases is a
matter of common knowledge and concern;

(h) While considering the prayer for grant of anticipatory
bail, a balance has to be struck between two factors,
namely, no prejudice should be caused to free, fair and
full investigation, and there should be prevention of
harassment, humiliation and unjustified detention of the
accused;

(i) The Court should consider reasonable apprehension
of tampering of the witness or apprehension of threat to
the complainant;

(j) Frivolity in prosecution should always be considered
and it is only the element of genuineness that shall have
to be considered in the matter of grant of bail and in the
event of there being some doubt as to the genuineness
of the prosecution, in the normal course of events, the
accused in entitled to an order of bail.”

8.6 It is equally incumbent upon the Court to exercise its
discretion judiciously, cautiously and strictly in compliance with
the basic principles
laid down in a plethorfca of decisions of the
Hon’ble Apex Court on the point. It is well settled that, among
other circumstances, the factors to be borne in mind while
considering an application for bail are (i) whether there is any

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prima facie or reasonable ground to believe that the accused
has committed the offence; (ii) nature and gravity of the
accusation; (iii) severity of the punishment in the event of
conviction; (iv) danger of the accused absconding or fleeing, if
released on bail; (v) character, behaviour, means, position and
standing of the accused; (vi) likelihood of the offence being
repeated; (vii) reasonable apprehension of the witnesses being
influenced; and (viii) danger, of course, of justice being
thwarted by grant of bail. Though, at the stage of granting bail
an elaborate examination of evidence and detailed reasons
touching the merit of the case, which may prejudice the
accused, should be avoided.

8.7 This Court while exercising discretion in favour of the
petitioner has taken into consideration the law
laid down by
the Apex Court in the case of
‘Siddharam Satlingappa
Mhetre vs. State of Maharashtra and Ors.’, reported in
(2011) 1 SCC 694, wherein the Hon’ble Apex Court reiterated
the law
laid down by the Constitutional Bench in the the case
of
‘Shri Gurubaksh Singh Sibbia Ors. Vs. State of
Punjab’, reported in (1980) 2 SCC 665. This Court has also
taken into consideration the law
laid down in the case of
‘Sushila Agarwal v/s. State (NCT of Delhi’, reported in
(2020) 5 SCC 1.

9. In the result, the present petition is allowed by directing
that in the event of applicant herein being arrested pursuant to
FIR registered as C.R. No. 11195034240054 of 2024 with
Palanpur East Police Station, District: Banaskantha, the

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petitioner shall be released on bail on furnishing a personal
bond of Rs. 10,000/- (Rupees Ten Thousand only) with one
surety of like amount on the following conditions that the
petitioner :

(a) shall cooperate with the investigation and
make himself available for interrogation whenever
required;

(b) shall remain present at concerned Police
Station on 13th 14th March, 2024, between

10.00 a.m. and 4.00 p.m.;

(c) shall not directly or indirectly make any
inducement, threat or promise to any person
acquainted with the fact of the case so as to
dissuade him from disclosing such facts to the
court or to any police officer;

(d) shall not obstruct or hamper the police
investigation and not to play mischief with the
evidence collected or yet to be collected by the
police;

(e) shall at the time of execution of bond, furnish
the address to the investigating officer and the
court concerned and shall not change residence
till the final disposal of the case till further orders;

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(f) shall not leave India without the permission of
the concerned trial court and if having passport
shall deposit the same before the concerned trial
court within a week;

10. If breach of any of the above conditions is committed by
the petitioner, the concerned learned Judge will be free to take
appropriate action in the matter. It will be open for the
concerned Court to delete, modify and/or relax any of the
above conditions in accordance with law. At the time of trial,
the Trial Court shall not be influenced by the prima facie
observations made by this Court while granting the petitioner
on bail. Direct service is permitted. Rule is made absolute,
accordingly.

(J. C. DOSHI,J)
UMESH/-

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