Delhi High Court: A Single Judge Bench of Anup Jairam Bhambhani, J.* while granting bail to a 20-year-old boy against whom FIR was registered under Sections 376 and 377 of Penal Code, 1860 (‘IPC’) and was in judicial custody since 1 year 7 months, opined that at the stage of considering a bail-plea, it was neither appropriate nor feasible for the Court to draw any conclusion, as to whether a promise of marriage made to a prosecutrix was false and in bad faith with no intention of being adhered to when it was given and such a decision must await a thorough assessment and evaluation of evidence to be led by the parties at the trial.
In the present case, the petition was filed under Section 439 read with Section 482 of the Code of Criminal Procedure, 1973 (‘CrPC’), wherein the petitioner seeks grant of regular bail in case where FIR was registered under Sections 376 and 377 of the IPC. The Investigation Officer (‘IO’) stated that the petitioner had been in custody from the day of his surrender before the Trial Court, that is, since 16-10-2021. The charge sheet was filed on 10-12-2021; whereafter, on 7-3-2022 charges were framed against the petitioner under Section 376 of IPC only, and the petitioner was discharged for the offence under Section 377 of IPC.
The counsel for the petitioner submitted that the petitioner and the prosecutrix, both of whom were major, were classmates, and were in a relationship for the last two years and that the present case had only been foisted upon the petitioner since a proposal for the two marrying each other went awry. It was further submitted that there were no allegations of any physical assault during the alleged incidents; and apart from the oral testimony of the prosecutrix, there was no evidence against the petitioner. It was also submitted that a mere breach of ‘promise to marry’ did not constitute an offence of rape under Sections 375 and 376 of IPC.
Analysis, Law, and Decision
The Court noted that the petitioner and the prosecutrix were both major at the time of the alleged incidents and were in a romantic relationship with each other, which was also known to their families. The Court relied on Pramod Suryabhan Pawar v. State of Maharashtra, (2019) 9 SCC 608, wherein the Supreme Court had settled the position of law as to when a ‘promise to marry’ was a ‘false promise’ or a ‘breach of promise’ and had held that “the ‘consent’ of a woman with respect to Section 375 of IPC must involve an active and reasoned deliberation towards the proposed act. To establish whether the ‘consent’ was vitiated by a ‘misconception of fact’ arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance or bear a direct nexus to the woman’s decision to engage in the sexual act”.
The Court opined that “the stage of considering a bail-plea however, it was neither appropriate nor feasible for the Court to draw any conclusion, much less to return any finding, as to whether a promise of marriage made to a prosecutrix was false and in bad faith with no intention of being adhered to when it was given. This was also not the stage when the Court must, or even could, finally decide if the purported false promise of marriage was of immediate relevance, or bore a direct nexus, to the prosecutrix’s decision to engage in a sexual act. Such a finding or decision must await a thorough assessment and evaluation of evidence to be led by the parties at the trial”.
The Court noted that in this case, there seemed to be no cavil that the parents of the petitioner and the prosecutrix were contemplating marriage between the two. It appeared that the proposed marriage was awaiting the two of them completing their education. The Court, therefore, opined that “at this stage it could hardly be said with any conviction that the purported promise of marriage made by the petitioner to the prosecutrix was ex-facie false; and that it had been made in bad faith, with no intention of being adhered to when it was given. Considering the admittedly ongoing romantic relationship between the two, it also could not be said with any certitude that the purported promise of marriage bore immediate relevance or direct nexus to the prosecutrix’s decision to engage in the sexual act with the petitioner”.
The Court noted that in the present case, a charge sheet had been filed and charges had also been framed. The Court further noted that the petitioner was a young man of 20 years of age and had been in judicial custody for the last 1 year and 7 months.
The Court relied on State of Rajasthan v. Balchand, (1977) 4 SCC 308, wherein the rule “bail not jail” was propounded in the following words:
“The basic rule might perhaps be tersely put as bail, not jail, except where there were circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the Court.”
Thus, the Court was persuaded to admit the petitioner to regular bail pending trial.
[Risabh Rawat v. State (NCT of Delhi), 2023 SCC OnLine Del 3368, decided on 1-6-2023]
*Judgment authored by: Justice Anup Jairam Bhambhani
Advocates who appeared in this case:
For the Petitioner: Vipin Rana, Shiv Kumar, Shyamendra Kumar, Ritu, K.S. Verma, Advocates;
For the Respondent: Tarang Srivastava, APP; Deepak Singh Thakur, Advocate.