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Safdar Abbas Zaidi vs The State Of Telangana, Through … on 27 August, 2018

HONBLE DR. JUSTICE B. SIVA SANKARA RAO

CRIMINAL PETITION No.8407 of 2018

27-08-2018

Safdar Abbas ZaidiPetitioner

The State of Telangana, Through SHO, Malkajgiri Police Station, Rachakonda.Respondent

Counsel for the petitioners:Sri Sarosh Bastawala

Counsel for the respondents : Learned Addl.Public Prosecutor

GIST:

HEAD NOTE:

? Cases referred
1. (2013) 9 SCC 113
2. (2014) 5 SCC 678
3. (2000) 7 SCC 224
4. (2005) 1 SCC 88
5. (2011) 1 SCC 694
6. (2016) 1 SCC 152
7. (2007) 7 SCC 413
8. (2016) 4 SCC 140
9. AIR (1984) SC 718
10. (2003) 4 SCC 46
11. 1958 Crl.L.J. 563
12. (1841) 9 CP 722
13. ILR(1913) 36 Mad 453
14. AIR 1963 Bombay 74
15. 1984 Crl.L.J.1535
16. 1885 29 CHD 459
17. (2014) 5 SCC 678
18. (2015) 2 ALT Crl. 239
19. 2013 3 ALT Crl.339 SCC
20. 2007 1 ALT Crl.61SCC
21. 2014 1 ALD Crl.634 SCC
22. 2013 12 SCC 710

HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO
Criminal Petition No.8407 of 2018
ORDER :

The petitioner, a private employee, resident of Burg Dubai, by
name Safdar Abbas Zaidi represented by his father Khaleem Akthar Abid
Zaidi as G.P.A. holder maintained the present anticipatory bail
application in Cr.No.115 of 2018 of Malkajgiri Police Station,
Rachakonda district, Telangana State, registered for the offences
punishable under Sections 376, 417 and 420 IPC. Earlier with self-same
array, he filed anticipatory bail application in Crl.P.No.4825 of 2018 and
the same was by detailed order running in 15 paragraphs with 9 pages
ended in dismissal on 09.07.2018 with observation of the same not a bar
for future bail application from showing of any changed circumstances,
no doubt to consider on own merits and that he is not entitled to the
concession of anticipatory bail from the propensity of the crime which
prima facie makes out the offence alleged u/sec.376 IPC among others
and thereby the contentions of he is an employee and likelihood of
loosing job if he is arrested cannot be outweighed in the consideration
over the sufferance of the victim.

2. After said dismissal order dt.09.07.2018, the present
anticipatory bail application is filed within one month on 08.08.2018
with 8 paragraphs of averments by reproducing the complaint in gist, the
ingredients of Section 376IPC and expressions of the Apex Court in Kaini
Rajan Vs. State of Kerala , and Vinod Kumar Vs. State of Kerala ,
referring to earlier expressions in State of HP Vs. Mango Ram and
Deelip Singh Vs. State of Bihar besides the guidelines for anticipatory
bail laid down at para-112 of Siddharam Satlingappa Mhetre Vs. State
of Maharashtra and Bhadresh Bipinbhai Sheth Vs. State of Gujarat
and ultimately at paras-7 and 8 of the bail application stated there is no
specific averments in the occurrence of rape or any other averment of
any possible date or time it had occurred and the conduct of the
defacto-complainant and her mother (not arrayed therein) as 2nd
respondent to the bail application is systematically paranoid, and shows
pattern of distress and suspiciousness such that the others motives are
interpreted as malevolent and such persons are known to harbour severe
antagonism and such persons suffering with paranoid personality
disorder, and individuals with this disorder are generally difficult to get
along with and often have problems with close relations because of their
excessive suspiciousness and hostility and unable to collaborate well
with others at work and their combative and suspicious nature may elicit
a hostile response in others, which then serves to confirm their original
expectations. They are often rigid, and critical by they never accept
criticism about themselves, and this causes significant impairment in
academic, occupational and/or social functioning. It is further submitted
that he is never in India and the question that he is absconding in
misleading does not arise.

3. In fact, in the bail application from the earlier dismissal order
referred supra to the date of filing supra as to any worth changed
circumstances mentioned. Even in the course of hearing nothing could
be brought to the notice of the Court of any changed circumstances but
for placed reliance in addition to the decisions referred supra in the bail
application, the expressions of the Apex Court in Pradeep Kumar Verma
Vs. State of Bihar , Tilakraj Vs. State of Himachal Pradesh and a
single judge expression of Maharashtra High Court in anticipatory bail
application No.2221 of 2016, dt.09.01.2017 in Akshay Manoj Jaisinghani
Vs. State of Maharashtra.

4. The learned Public Prosecutor opposed the bail application
saying neither any merits to review the order of dismissal of the
anticipatory bail application by this Court in the previous month nor
worth changed circumstances even mentioned though not res judicata
for bound to disclose any worth changed circumstances rather
mentioning anything as if a changed circumstance to maintain a
subsequent bail application which is a pre-requisite even for the Court to
entertain and that there is a prima facie accusation as concluded earlier
and the petitioner/A.1 no way deserves concession of anticipatory bail,
leave about the A.2 obtained regular bail is not a ground to grant
anticipatory bail to A.1-the main perpetrator of the crime and in the
larger interest of the society.

5. Heard both sides and perused the material on record.

6. There is no quarrel on the scope of the anticipatory bail for
granting or refusal more particularly from the expression of the Apex
Court in Siddaram supra and even from the decision of the Apex Court in
Bhadresh supra where it is observed that the Court is not concerned
with the feasibility of the framing of charge or merits thereof in
considering the application of the grant of anticipatory bail as that
would be a matter before the trial Court for arriving of a finding of the
evidence and once charge is framed, the question for consideration by
the Court an application for anticipatory bail at post-charges stage is
whether in the circumstances of the case, appellant is entitled to
anticipatory bail or not. It was observed regarding the principles that
the Court has to come to a conclusion from the verification of the FIR as
to false or frivolous complaint or genuine including of investigative,
fairness besides gravity of charge and role of accused in evaluating the
facts of the case in exercising discretion to grant or refuse besides other
criteria is not likelihood of absconding or not cooperating with the
investigation but for that no special case need be made out for
anticipatory bail but for imposing any necessary conditions, leave about
power of the Court if at all to cancel whenever required any such
concession of bail if granted and that thereby there are no other
inflexible guidelines or straitjacket formula that can be provided for
grant or refusal of anticipatory bail other than nature and gravity of the
accusation and role of the accused and intensities of the accused and
possibility of fleeing from justice or any possibility or likelihood of
repeating the same or other crime so that balance be struck between
free and fair investigation and personal liberty in taking care of any
apprehension or threat to victim or possibility of interfering with the
witnesses or tampering the evidence or material etc. There the facts are
of the alleged rape occurred 17 years ago in 2001 and no charge so far
framed and the charge u/sec.376 is added only in the year 2013 and not
earlier in saying entitlement to the concession of anticipatory bail with
reference to it even the offence u/sec.376 is added for further
investigation more than 12 years after registration of the crime.

7. Now coming to the accusation against the petitioner with
propensity of the crime concerned, the earlier dismissal order in
Crl.P.No.4825 of 2018, dt.09.07.2018 in detail dealt with at paras-6 and

7. Now coming to the contentions in the present second anticipatory
bail application at para-2 what is mentioned as changed circumstances
are evidenced from the fact that the Gandhi hospital stated that the
evidence of sexual assault cannot be ruled out, but however the
medical examination report for sexual assault dt.10.02.2018 (wrongly
mentioned as 10.02.2012) states that opinion reserved pending
availability of reports of the sample sent. It is in fact not a new
material even. It is further averred the victim did not report to police
but the defacto-complainant-cum-her mother. In this regard, a perusal
of the Case Diary clearly shows the victim was even examined as a
witness and her version corroborates to the contents of the report on
material aspects at least if not, with more details. So far as the report
of the occurrence in setting criminal law in motion concerned, there are
no conventional protocols as held by the Constitution Bench of the Apex
Court wayback in R.S.Naik Vs. A.R.Anthuley .

8. So far as the legal position on the scope of Section 376 IPC
including from the decision placed reliance concerned, no doubt,
learned Single Judge of the Bombay High Court in Akshay Manoj
Jaisinghani supra, on facts of the victim aged 21 years became a friend
of accused and when he invited her for celebrations of his birthday, she
attended along with friends and spent 2.5lakhs for gifting gold chain,
mobile phone of Samsung Company, laptap, hair straitjacketner and
clothes to him and he promised her to marry and when she went to his
house later having promised her to marry, he had sexual intercourse and
later took her to various hotels under said promise to marry and had
sexual intercourse without her consent. He consumed liquor drugs at the
time of sexual intercourse and when she informed about their
relationship to the parents of the accused who did not react and later
she realised that she was pregnant out of sexual relationship with him
and when she informed him so, he advised to go for termination and
against her will, he administered her pills however it was not successful.
Nearly one and half month later, he had forcible intercourse with her
and later she went to Dubai to her parents where she had medical check
up and found pregnancy was not terminated and she returned back to
India and when contacted the accused he abused her and threatened
saying she should not give any complaint against him to police. It was
observed that a major and educated woman concerned, she is supposed
to fully aware of the consequences of having sexual intercourse with a
man before marriage and consent obtained by fraud or inducement is
one of the necessary ingredients in such an event to attract Section 376
IPC with some material to believe that she was induced by the accused.
It was observed that sexual urge is a free decision of any major
individual irrespective of gender and promise to marry cannot be a
condition precedent to have sex, though behavioural pattern and psyche
of Indian society to be taken into account in dealing with the issue and
ultimately anticipatory bail was granted therein.

9. So far as Pradeep Kumar supra concerned, it was against
dismissal of the discharge application by the trial Court and also by High
Court with single line order without proper consideration when
approached the Apex Court, it remitted the matter without expression
of any opinion on merits for fresh consideration, where the charges
framed were for the offences punishable under Sections 376 and 406
IPC. The Apex Court in fact referred Uday Vs.State of Karnataka and
Deelip Singh supra. There, on facts, the observation was that the trial
Court failed to note while framing charges u/secs.376 and 406 IPC, of
the lady victim accepted that whatever physical relationship with the
accused were there with her consent and she was married to the
accused. That being so, the question of any offence punishable under
Section 376 IPC does not arise was the observation in so remitting.

10. So far as the application of Section 375 and 376 IPC
concerned, referring to the two earlier expressions supra, it was
observed in Pradeep Kumar supra that though the crucial expression in
Section 375IPC defines rape as against her will, the consent defined
in section 90IPC is not in positive terms but what cannot be regarded as
consent is explained and it is firstly on the point of view of the victim
and secondly on the point of view of accused and misconception of fact
is one of the parameters of no consent. Where it envisages from the
second part of Section 90 IPC of accused to have knowledge or reason to
believe the consent of the victim was in consequences of fear or injury
or misconception of fact.

11. With that by referring to Deelip Singh supra where at paras-
17 to 19, the Apex Court observed at page-99 of consent u/sec.90 cannot
be considered as exhaustive definition of consent for the purposes of
IPC and the normal connotation and concept of consent is not intended
to be excluded. In Stroud’s Judicial Dictionary it is defined consent as
an act of reason, accompanied with deliberation, the mind weighing, as
in a balance, the good and evil on each side. Jowitt, while employing
the same language added that consent supposes three things a physical
power, a mental power and a free and serious use of them. Hence if the
consent is obtained by intimidation, force, meditated imposition,
circumvention, surprise, or undue influence etc., it is to be treated as a
delusion, and not as a deliberate and free act of the mind.

12. In Udaya supra, the Apex Court at page 53 para-12 observed as
the Courts in India have by and large adopted these tests to discover
whether the consent was voluntary or whether it was vitiated so as not
to be a legal consent and the same was referred later in Deelip Singh
supra and further observed in Deelip Singh supra that as held by Panjab
High Court in Rao Harnarain Singh Sheoji Singh Vs. the State on the
expression of consent in the context of Section 375IPC by Honble Tec
Chand J. at para-7 of difference between consent and submission and
however consent involves submission but consent does not follow and
the mere fact of submission does not involve consent thereby. The
proposition is virtually repetition of what was stated by Coleridge J in R
Vs Day .

13. It was also observed of mere fact of helpless resignation in the
face of unfavourable compulsion, non-resistance and passive giving in,
cannot be deemed to be consent. The 3JB of the Apex Court in
Mangoram supra at para-13 at page 213 held that consent for the
purpose of Section 375 requires voluntary participation not only after
the exercise of intelligence based on the knowledge of the consequences
and merely quality of the act, but after having fully exercised the choice
between the resistance to and assent, where there was consent or not,
is to be ascertained only on careful study of relevant circumstances.

14. It also referred in Division Bench expression of Madras High
Court in N. Jaladu,Re . that misconception of fact is not a consent
agreeing under Section 90 IPC in dealing with a kidnap case where the
parents consent was taken under a false representation of taking the
minor girl for a festival, however later the marriage was performed with
first accused by the second accused who had taken the girl, in saying
there was no consent in observing misconception of fact is brought
enough to include of cases where consent is obtained by
misrepresentation, misrepresentation should be regarded as leading to
misconception of the facts with reference to which the consent is given.

15. It also referred to the judgment of Bombay High Court where
the view of the Madras High Court accepted, by Division Bench in
Parshottam Mahadev Patharphod Vs. State of Maharashtra of consent
given pursuant to a false representation that the accused intends to
marry the victim could be regarded as consent given in misconception of
fact and thereby no consent u/sec.90 IPC within the meaning
u/sec.375IPC. It also referred the subsequent Calcutta High Court
expression in Jayanti Rani Panda Vs. State on facts the victim alleged
that the accused came to her house and had intercourse many a time
allegedly kept in a secret with her parents as not believable of the
alleged intercourse on the promise to marry, but for otherwise voluntary
with consent.

16. It also referred a Chancery Court expression in Edgington Vs.
fitzmaurice para-8 referred in Jayanti Rani Panda supra by Calcutta
High Court that mis-statement of the intention of the defendant in doing
a particular act may be mis-statement of fact, and if the plaintiff was
misled by it, action of deceit may be founded in it. In Uday Supra all the
case law was referred.

17. From that in Pradeep Kumar supra at para-27 in page 721
observed that a false promise does not come within the meaning of the
consent. Having inclined to agree with this view, but we must add that
there is no straitjacket formula for determination whether consent given
by the prosecutrix for sexual intercourse is voluntary or whether it is
given in misconception of fact and the Court must in each case consider
the evidence before it and the surrounding circumstances, before
reaching any conclusion, because each case has its own peculiar facts
which may have bearing on the question whether the consent was
voluntary, or is given in misconception of fact.

18. Thus, from the expressions in Uday, Deelip Singh and
Pradeep Kumar supra, each case depends upon own facts and mis-
statement or mis-representation is even within the meaning of no
consent to constitute the offence of rape.

19. Coming to the expression in Vinod Kumar Vs.State of Kerala
what was observed on facts that consequent sexual indulgement
amounted to consensual sexual relationship for which accused cannot be
held guilty for rape. If accused was honest or forthright and did not
conceal anything, he cannot be convicted for rape. It is clear from the
above that in Vinod Kumar supra, neither new principle laid down nor
the earlier principle of law explained or overruled.

20. Coming to the expression in Tilakraj supra, it was also a case
where the trial Court acquitted the accused for the offences punishable
of rape u/sec.376 IPC besides the other offences charged u/sec.417 and
506 IPC whereas the High Court in appeal by State, convicted for the
offences u/sec.417 and 506 IPC and the same when attacked before the
Apex Court, the observations that were made therein in setting aside the
High Courts reversal finding to the above extent, also with observations
of double presumption after acquittal for not to interfere with acquittal
unless there are findings of perversity in the trial Courts judgment. On
facts, it was held that the age of the prosecutrix is 40 years and the
accused is 10 years younger to her, that too, she is a Government
servant and she was appointed as Protection Officer under the
Protection of Women from Domestic violence Act, 2005 and she was in
continuous relation with the accused since 2 years prior to the alleged
incident that established the physical intimacy and her case on it is
under a false pretext to marry. On analysis of the facts from the
evidence on record her version proved false. Thereby the conclusions are
on factual basis and there is no any new principle of law laid down nor
the earlier expressions in this regard referred, including on the scope of
Section 375 and 90 IPC.

21. Apart from the above, in the earlier order(Crl.P.No.4825 of
2018), the High Court answering the bail application of the petitioner,
referred several expressions in para-12 of the order though not discussed
in detail of those with reference to the facts in its saying from the FIR
contents and the statement of the victim, it shows that the accused
lured her with a promise to marry and enjoyed her sexually, but for that
she could not even given consent from which it comes under the
offence of rape under Section 375 IPC, for no free consent as
contemplated by Sections 39 and 90 IPC as already observed on the
scope of law by this Court in Bhumpaka Praveen Kumar Vs. State of
Telangana , Deelip, Mangoo Ram Supra, Deepak Gulati Vs. State of
Haryana , Yedla Srinivasa Rao Vs. State of A.P. , Pradeep Kumar
supra and State of UP Vs. Noushad . For that conclusion, the other
expression of the Apex Court in Karti Vs.State also lends support by
almost reiterating the principle laid down in Deelip Singh supra.

22. Having regard to the above, the petitioner is not entitled to
the concession of anticipatory bail.

23. In the result, the Criminal Petition is dismissed. Consequently,
miscellaneous petitions, if any, pending in this Criminal Petition shall
stand closed.

__
Dr. B. SIVA SANKARA RAO, J
Date:27.08.2018

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