Arif Iqbal @ Imran
v.
State

(High Court Of Delhi)

Criminal Miscellaneous Appl. No. 12865 of 2009 in B.A. No. 2145 of 2009 | 06-11-2009


Crl. M.A. No. 12865/09 in B.A. No. 2145/09

Allowed, subject to all just exceptions.

B.A. No. 2145/09

1. By way of this petition filed under Section 438, Cr.P.C. r/w Section 482, Cr.P.C. the petitioner seeks grant of anticipatory bail.

2. Before dealing with the contentions raised by the Counsel for the petitioner, it would be appropriate to set out in brief the allegations levelled by the prosecutrix against the petitioner which led to registration of an FIR against him under Section 376, IPC. The prosecutrix has alleged that she is a household lady and the petitioner being her neighbour used to admire her when she used to go out of the house to purchase things of daily use. Several times he told the prosecutrix on the telephone that he liked and loved her very much and wanted to marry her. He also met her at Chandni restaurant and Pizza Hut, Pitampura, several times and from the period February 2007 to January 2008 the petitioner had made false promise to marry her. He also sought permission of the prosecutrix to visit her house during the late night hours and when the prosecutrix said that his presence would be noticed by the family members, then the petitioner suggested that he would give intoxicating pills to her to be administered in the tea of the family members of the prosecutrix as a result of which everybody would fall in deep sleep. Acting on the advice of the petitioner the prosecutrix served tea to her family members and after mixing the intoxicating pills in the tea between 12.00 and 12.30 p.m., the petitioner came to the house of the prosecutrix and after having one hour talks the petitioner proposed to the prosecutrix to have physical relation with him. On the refusal of the prosecutrix he said that if she was in love with him then she will have to give a proof of the same. Falling in his trap, the prosecutrix allowed the petitioner to have physical intimacy with her. This same incident happened again on 4.2.2008. As per the prosecutrix she remained under mental stress and agony and so she did not disclose anything to any person to save her honour and at the same time the petitioner kept promising her to marry as he loved her very much. On 14.8.2009, the petitioner again entered the room of the prosecutrix at about 1.00 a.m. through main gate and asked her to wear off her clothes but the prosecutrix refused by saying that she would not indulge in sex before the marriage. On such refusal, the petitioner said that he will give her photographs to his friends and again promised to have Nikah between 20.8.2009 and 22.8.2009 and on such assurance the prosecutrix again had sexual relationship with the petitioner. The petitioner kept on making such false promise of marriage from 14.8.09 to 22.8.2009. When ultimately he refused to marry her then on such refusal, the prosecutrix disclosed everything to her mother and then to other family members and when the matter was reported to the police the petitioner again agreed to marry the prosecutrix in the presence of the police officers on the morning of 22.8.2009. The petitioner and his father had also fixed the date of marriage as 25.9.2009, but again the petitioner backed out from his promise and also threatened that whole family of the prosecutrix would be killed if any action is taken against them. The prosecutrix based on the above facts lodged the complaint dated 1.10.2009 alleging rape by the petitioner several times on the false promise of marriage.

3. Learned Counsel for the petitioner submits that the alleged incident for the first time took place on 2.2.2008 and the FIR was registered after a long gap of 20 months i.e. 1.10.2009. Counsel thus submits that unexplained delay on the part of the prosecutrix in lodging the said FIR for the alleged grave act of rape in itself would shatter the case of the prosecutrix. Counsel for the petitioner further submits that the prosecutrix is a grown up girl aged about 23 years and she herself was a consenting party to the alleged sexual relationship with the petitioner and it was for the prosecutrix not to have believed the petitioner to his alleged proposal of marrying her. Counsel for the petitioner further submits that the alleged incident of rape had taken place at the house of the prosecutrix and, therefore, it cannot be said that the prosecutrix was not aware of the acts she was engaged in with the petitioner. Not only this the prosecutrix herself had admitted that on the alleged advice of the petitioner she had administered intoxicating pills in the tea given to her family members which in itself would show that she was madly in love with the petitioner and was eager to have sexual relation with the petitioner. Counsel for the petitioner has placed reliance on some of the letters written by the prosecutrix, contents of which would show that she was madly in love with the petitioner and wanted to have physical relations with him. In support of his arguments, Counsel for the petitioner placed reliance on the judgment of the Supreme Court in Uday v. State of Karnataka, II (2003) SLT 131=2003 (II) AD (Cr.) SC 41, and judgment of the Madhya Pradesh High Court in Abdul Salem v. State of Madhya Pradesh, 2006 Cr.LJ 4734 MP.

4. Opposing the bail application of the petitioner, Mr. Sanjay Lao, APP for the State submits that the consent if at all was given by the prosecutrix was under misconception of facts as the petitioner had always been making false promise to marry the prosecutrix. Counsel states that the petitioner had also been giving threats to the prosecutrix that he would expose her by showing her photographs to his friends. Placing reliance on Section 90 of IPC, Mr. Lao submits that the consent obtained under misconception of facts is not a free consent and, therefore, the petitioner cannot derive any advantage of such a consent of the prosecutrix. Counsel further submits that rape being a serious and heinous offence, the petitioner does not deserve grant of anticipatory bail.

5. I have heard learned counsel for the parties at considerable length and gone through the record.

6. Without expressing any view on the merits of the case, it is quite apparent from the contents of some of the letters placed by the petitioner on record that the prosecutrix was deeply in love with the petitioner. In one of the letters, the prosecutrix has expressed her desire to come close to the petitioner and she also expressed her desire to embrace him. In another letter she even expressed her desire to have a child from the petitioner with the same name and to have the company of the petitioner for her entire life. It is not in dispute that the petitioner had physical relations with the prosecutrix not at any strange place but at the residence of the prosecutrix itself. In her madness for love with the petitioner, the prosecutrix went to the extent of administering intoxicating pills to her family members to induce them to go in fast and deep sleep and during which period the petitioner had sex with the prosecutrix. No doubt the prosecutrix has alleged that she allowed the petitioner to have sex with her because of the false promise of marriage extended by the petitioner but in my view mere false promise of marriage should not have prompted the prosecutrix to establish physical relationship with the petitioner.

7. There is an old Jewish saying “if you are close when you should be distant, you will be distant when you should be close”. It is for both man and woman to restrain themselves and not to indulge in intimate activities prior to the marriage. Undoubtedly it is responsibility, moral & ethical both, on the part of man not to exploit any woman by extending false promise or through devious acts to force or induce the girl for sexual relationship. But, ultimately, it is woman herself who is the protector of her own body. Promise to marry may or may not culminate into marriage. It is the prime responsibility of the woman in the relationship or even otherwise to protect her honour, dignity and modesty. A woman should not throw herself to a man and indulge in promiscuity, becoming source of hilarity. It is for her to maintain her purity, chastity and virtues.

8. Considering the aforesaid facts and circumstances, I am inclined to grant anticipatory bail to the petitioner.

9. In the event of arrest, the petitioner shall be granted bail, subject to his furnishing personal bond in the sum of Rs. 50,000/- with one surety in the like amount to the satisfaction of the SHO/I.O. of the concerned police station, subject to the condition that the petitioner shall fully cooperate in investigation and will not create any hindrance or impediment during the course of investigation.

10. With these directions, the petition is disposed of.

Petition disposed of.

Advocates List

For the Petitioner Mohd. Nasir, Mohd. Saleem, Juned Alam, Advocates. For the Respondent Sanjay Lao for State, APP.

For Petitioner
  • Shekhar Naphade
  • Mahesh Agrawal
  • Tarun Dua
For Respondent
  • S. Vani
  • B. Sunita Rao
  • Sushil Kumar Pathak

Bench List

HON'BLE MR. JUSTICE KAILASH GAMBHIR

Eq Citation

LQ 2009 HC 10743