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Safdar Abbas Zaidi vs The State Of Telangana And Another on 9 July, 2018

HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO

CRIMINAL PETITION No.4825 of 2018

09-07-2018

Safdar Abbas Zaidi.petitioner

The State of Telangana and another. Respondents

Counsel for the petitioner : Sri P.Venugopala Rao

Counsel for Respondent No.1: learned Public Prosecutor
Counsel for Respondent No.2 : N.Avaneesh

Gist :

Head Note:

? Cases referred:
(2013) 7 SCC 675
2 (2013) 9 SCC 113
3 2017 (1) R.C.R. (Criminal) 715
4 (2011) 1 SCC 694
5 (1980) 2 SCC 565
6 2005 (1) ALD Cri 65 (SC)2005 (1) SCC 88
7 2000 (7) SCC 224
8 2013 (3) ALT (Crl) 339 SC
9 2007 (1) ALT (Crl) 61 (SC)
10 2008 (2) ALT (Crl) 445 (SC)
11 2014 (1) ALD Crl 634 (SC)

HONBLE DR. JUSTICE B. SIVA SANKARA RAO
CRIMINAL PETITION No.4825 of 2018

ORDER:

This criminal petition is filed under Section 438 Cr.P.C.
by the petitioner/A1 in Crime No.115 of 2018 of Malkajgiri
Police Station, Rachakonda District, registered for the
offences punishable under
Sections 376, 417 and 420 I.P.C.

2. Heard learned counsel for the petitioner, learned Public
Prosecutor representing the 1st respondent-State and learned
counsel for the 2nd respondent-de facto complainant.

3. The contentions of the learned counsel for the
petitioner are that the petitioner is innocent and falsely
implicated for not committed any offence, much less, offence
of rape or cheating to register the above crime for the said
offences at the instance of the de facto complainant, leave
about the failure to keep the promise to marry is not an
offence from both majors from said physical relationship of
conjugal life even for years and the fact that out of their love
and affection, marriage was scheduled to be performed on
17.04.2018 and post marriage reception on 28.04.2018 and
failed due to the adamant attitude of the daughter of the
de facto complainant is not a ground attributing offence of
cheating or rape, the de facto complainants daughter, the
victim herself embraced to Islam in Dubai and the marriage is
broke not from non-fulfillment of the promise given by him to
marry but otherwise from her attitude, thereby, no offence is
made out and he is entitled to the concession of bail. It is
also the contention that the learned XVI Additional District
and Sessions Judge, Malkajgiri, Ranga Reddy District,
dismissed Crl.MP.No.1306 of 2018, on 13.04.2018, without
perusing the facts properly and from investigation at nasal
stage.

4. The learned Public Prosecutor opposed the bail
application saying there is a prima facie accusation for the
offences of rape and cheating and the petitioner does not
deserve, leave about the other petitioners are not before this
Court, any concession of bail much less anticipatory bail from
the seriousness of the offence of the victim faces practically,
a civil death.

5. Heard both sides and perused the expressions placed
reliance by both sides, more particularly, the expression in
Deepak Gulati v. State of Haryana , placed by the learned
counsel for the petitioner.

6. The F.I.R. reads that the de facto complainant by name,
Swapna Chanda, is the mother of the victim, Pinky Chanda,
who is aged about 25 years. The petitioner/A1 by name,
Safdar Abbas Zaidi and the victim, Pinky Chanda fell in love
and she was embraced to Islam community at his instance and
their acquaintance gradually developed into love affair under
the promise of marry and with that, they even participated
for a long period of sexual intercourse including by embracing
her into Islam to see that there will not be any further hurdles
to the marriage and the date of marriage already fixed that
was to be performed on 17.04.2018 with post marriage
reception on 28.04.2018 that was fixed prior to December,
2017. However, it was cancelled saying he was not going to
marry her and it was at that time with a pretense that her
name in the legal documents to be changed Hindu name to
Muslim name as after conversion they christened her again
Pinky Chanda to Fatima Zehra saying for marriage purpose and
she was thereby cheated and to take action.

7. The undisputed facts are that the petitioner and
daughter of the de facto complainant were lived in Dubai and
were employees. The only contention is that they were
staying at separate venues, though working and meeting
together. It is also not in dispute that he had sexual
intercourse with her. There were e-mail chattings right from
December, 2014 and e-mail chatting particularly at page
No.122 of the material papers supplied with the bail
application shows he asked the victim as to she was pregnant
through him or not. The chat says pregnant wont hang
anything and the earlier chat says exchange of abuses
between them and not to have further sex and his further
chat says he was cheated by her pretense she was pregnant
and as if aborted. Even from this he had sexual intercourse
with her is an admitted case of him from e-mail exchanges.

8. The core contention of the learned counsel for the
petitioner is that mere voluntary participation in sexual
intercourse is not an offence of rape and it will not give under
any of the exceptions or explanations to the definition of
Section 375 I.P.C. to attract the offence under Section 376
I.P.C. including so called Parts 2, 4 and 5 r/w explanation (2)
out of seven descriptions as to what constitutes rape.

9. As pointed out by the learned Public Prosecutor before
going into the legal position, coming to the facts, the very
embracing her to Islam community was long back and for the
purpose of marriage and subsequent to that they had sexual
intercourse and his question that she was pregnant or not that
itself shows he had sexual intercourse with her. It is leave
about she pretended falsely as if pregnant without that or
not, as the very e-mail messages show after her conversion
into Islam community for the purpose of marriage, he had
sexual intercourse with her clearly shows it is not with her
consent to have the sexual intercourse as a message but for
on the pretense of marriage even embraced to Islam that
itself shows, it is not a voluntary consent within the meaning
of
Section 39 r/w 90 I.P.C.

10. In Deepak Gulati (supra), it is categorically held that
the consent given under misconception of fact from which
there is sexual indulgence by accused with victims consent
given under misconception of fact, that falls within the ambit
of rape. Consent obtained from victim by making false
promise of marriage amounts to cheating or deception which
leads to misconception of fact. But the distinction should be
made between not fulfilling false promise by accused and
mere breach of promise occurring due to circumstances
beyond his control. Even this principle is very clear that if it
is the breach of marriage is not in his control it is an
exception otherwise under the promise he had sexual
intercourse it is definitely a rape. The expression vividly
discussed the gravity of the psychology and physical harm the
woman suffers and degrades and defiles victims soul, honour
and dignity and leaves a permanent scar on life from such
crime being that to be viewed seriously.

11. Coming to another Single Judge expression of this Court
while granting regular bail on 08.02.2017 in Crl.P.No.662 of
2017 (Pendam Venkateshs case) referred
Kaini Rajan v.
State of Kerala and
Akshay Manoj Jaisinghani v. State of
Maharashtra , the observations therein read that in Kaini
Rajans case, there is an observation of prima facie case for
the offence of rape not made out and in Akshay Manoj
Jaisinghanis case it was held referring to Mahesh Balkrishna
Dandane v. State of Maharashtra in A.B.A.No.27 of 2014
dated 12.03.2014 as under:

This Court has already held in the case of Mahesh Balkrishna
Dandane v. State of Maharashtra, ABA No. 27 of 2014 decided
on 12.3.2014, that to satisfy the sexual urge is a free decision of
every major individual irrespective of gender. Thus, promise to
marry in any manner, cannot be a condition precedent to have sex.
However, the behavioural pattern and psyche of Indian society has
to be taken into account while dealing with this issue. Since many
generations, virginity of a woman is considered precious and there
is a moral taboo that it is a responsibility of a woman to be a virgin
at the time of marriage. However, today, the young generation is
exposed to different interactions with each other and is well
informed about sexual activities; similarly, the late marriages and
economic independence are also relevant factors. The society is
trying to be liberated but carries baggage of different notions of
morality wherein sex before marriage is a matter of censure and
hence, it is a hush-hush subject. In fact, it is an issue before the
social thinkers to educate and guide the society. Under such
circumstances, a young woman who is in love with a boy forgets
that to have sex is her option like her counterpart but somehow
refuses to take the responsibility of her decision. If at all she has
indulged into sexual activities even on a promise to marry, the girl
may land up emotionally and physically in a pathetic situation after
break up. To marry someone is a matter of choice. It cannot be
imposed on anybody. Only because two individuals are sexually
involved with each other, it is not compulsory for them to marry.
Initially, a boy and a girl genuinely may want to marry and are true
to their emotions and establish sexual relationship, however, after
some time, they may find that they are not mentally or physically
compatible and one decides to withdraw from the relationship.
Under such circumstances, nobody can compel these two persons to
marry only because they had sexual relationship. It is necessary to
have a healthy, objective and legal approach towards these
incidents. There may be moral bonding between the two persons
when they indulge into sexual activities with promise to marry and
it is also a fact that ultimately women only can remain pregnant
and therefore, she suffers more than the man. However, in law,
this cannot be labelled in any manner as a rape.

It is, by referring the same as paragraph No.5 of the order in
Crl.P.No.662 of 2017 granted regular bail. In Pendam
Venkateshs case with reference to those facts, what
observed by another Bench of this Court was that having
regard to the above and since all the material witnesses were
already examined, the request of petitioner therein can be
considered in allowing the regular bail.

12. Leave about the fact that the facts are entirely different
and the case on hand is not even for regular bail, and the
regular bail and anticipatory bail cannot be at par as per the
settled law including from the expression of the Apex Court in
Siddharam Satlingappa Mhetre v. State of Maharashtra
referring to the Constitution Bench expression of the Apex
Court in
Gurbaksh Singh Sibbia Etc vs State of Punjab , here,
at the cost of repetition what the Apex Court observed in the
above case is if two majors agreed and freely participated in
the sexual intercourse, it is not an offence of rape. Here,
from the very F.I.R. contents and the statement of victim the
accused lured her, promised to marry and enjoyed her
sexually, but for that she could not have been consented;
from which it is an offence of rape under
Section 375 IPC for
no free consent as contemplated by
Section 39 IPC as also
observed by this Court in 2015 (2) ALT Crl. 239. BPK v. State
of Telangana referring to several expressions of the Apex
Court including Deelip Singh Vs. State of Bihar , State of
H.P. Vs. Mango Ram , Deepak Gulati Vs. State of Haryana ,
Yedla Srinivasas Rao Vs. State of A.P. , Pradeep Kumar
Verma Vs. State of Bihar and State of UP Vs. Naushad .

13. Having regard to the above, the petitioner is not
entitled to the concession of anticipatory bail and the fact
that he is an employee and likelihood of losing job if arrested
cannot even be considered to outweigh over the sufferance of
victim.

14. In the result, this Criminal Petition is dismissed. It is
needless to say there is no res judicata for the bail
application. If at all in future any bail application is filed by
the petitioner from any changed circumstances, the same may
be considered on own merits.

15. Consequently, miscellaneous petitions, if any shall stand
closed.

JUSTICE Dr. B.SIVA SANKARA RAO
Date: 09.07.2018

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