IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.M.P(M) No. 757 of 2008. Date of decision: July 28, 2008. Lokesh Nandan …..Petitioner. Vs. State of H.P. …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the applicant : Mr. Anup Chitraka, Advocate, For the Respondent : Mr. A.K. Bansal, Addl. Advocate General. Kuldip Singh, Judge (oral). The petitioner has filed this petition, under Section 438 Cr.P.C. for releasing him on bail in FIR No. 76 registered on 11.7.2008 at Police Station, Shahpur, under Sections 376(1), 366, 385, 120-B, 506 IPC. The respondent has filed the reply. 2. The brief facts are that prosecutrix submitted a written complaint dated 22.3.2007 to Superintendent of Police, Dharamshala that she had friendship with petitioner for the last four years. The petitioner had been maintaining physical relations with her on the assurance that he would marry her. In the first week of February 2007, the petitioner called her at Dharamshala and told that he would disclose to her parents what type of relations petitioner had with her Whether the reporters of the local papers may be allowed to see the Judgment? …2… and at that time also he had forcible sexual intercourse with her. The next day, he informed the prosecutrix that he had no concern with her and he would marry somewhere else. He started extending threats to her. She requested for registration of a case and provide protection to her and her family. On 26.3.2007, the prosecutrix made a statement not to take any action till 7.4.2007 on her complaint as Durgesh brother of the petitioner took the responsibility to call the petitioner and the prosecutrix wanted to talk to petitioner. On 7.4.2007, the prosecutrix submitted a written application that the two families had talked to each other and she had come to know that now no purpose will be served, therefore, she made request for withdrawal of her complaint and for this purpose she made a separate statement dated 7.4.2007 also wherein she requested that FIR may not be registered as she and Lokesh had settled the matter. 3. The prosecutrix submitted another application dated 8.7.2008 addressed to DIG Dharamshala for registration of case and on the basis of the said application, FIR No. 76 was registered at Police Station, Shahpur on 11.7.2008. The perusal of the FIR would show that prosecutrix has alleged that she knew Lokesh Nandan petitioner for the last five years and he had physical relations with her for the last three years. In the beginning they had just friendship. In July 2005, the petitioner invited the prosecutrix on his birthday at Dharamshala where the petitioner mixed something in the coffee and after taking coffee she became unconscious. The petitioner raped her in unconscious condition. On regaining consciousness, she protested but petitioner assured her that they were going to marry and also told …3… the prosecutrix not to disclose this fact to anybody. However, thereafter petitioner started blackmailing her. In 2006, the petitioner with the help of his brother Durgesh Nandan, Rinku Baloria, Kaka Pathania kidnapped her when she was going to Chambi from Rait. The petitioner offered a piece of Burfi to her by saying that it was Prasad, she took the Burfi, she started feeling giddiness and after sometime she found herself in Vijaysheel school in naked condition. The petitioner was with her and he was also naked. Rinku, Durgesh and Kaka were also there and they were watching blue- CD on computer. There were some liquor bottles also. After some time, the petitioner left her near her house. After three-four months they started blackmailing her, they had shown one CD to her and told her that they had prepared said CD on that day. She withdrew the complaint dated 22.3.2007 on the assurance of the petitioner that he would marry her and also in view of threats given by Drugesh Nandan, Kaka and Rinku. The petitioner was maintaining physical relations with her even after the withdrawal of earlier complaint, but now again he is refusing to marry her. Durgesh Nandan is the principal of Vijaysheel school and his friends are Kaka Pathania and Rinku Baloria. It has been alleged that these persons are threatening to throw acid on her and would kill her. On the aforesaid written complaint of the prosecutrix, the case has been registered. 4. The learned counsel for the petitioner has submitted that case has been registered on 11.7.2008 after a gap of more than fifteen months. The prosecutrix has improved her previous story in the new complaint. She has made improvements and added new …4… allegations in the complaint dated 11.7.2008. The learned counsel for the petitioner has stated that prosecutrix is not at all a credible person and unworthy of credence keeping in view her conduct. It has been submitted that allegations in the complaint are related to the period prior to 22.3.2007. The prosecutrix had full opportunity to level those allegations in her previous complaint. The second complaint has many improvements, which is the result of deliberations and possibility cannot be ruled out that prosecutrix has filed second complaint on some advice and therefore, she has filed tailored complaint. It has been submitted that prosecutrix is trying to blackmail the petitioner and to spoil his matrimonial prospects inasmuch as it appears that the prosecutrix has come to know fixation of the marriage of the petitioner. The prosecutrix has become vindictive and wrecking vengeance against the petitioner and his family. The petitioner is ready to join the investigation. The custodial interrogation of the petitioner is not necessary. The petitioner earlier filed bail application, which has been rejected by the learned Sessions Judge, Kangra on 15.7.2008. 5. In the reply the respondent has opposed the bail application. It has been stated that prosecutrix is 30 years of age. It has been revealed during investigation that prosecutrix had paid Rs.15,000/- to Durgesh Nandan against the demand of Rs.30,000/- for not circulating the C.D. in public. It has been stated at bar by learned Additional Advocate General that in addition to petitioner, there are three more accused, but all the four accused have absconded which has hampered the investigation. The respondent …5… has filed reply on the affidavit of Superintendent of Police, Kangra at Dharamshala. 6. I have heard learned counsel for the parties and gone through the record. The thrust of the submissions of learned counsel for the petitioner is that petitioner has been falsely implicated in the case. The prosecutrix earlier had filed complaint, which was withdrawn but then she filed another complaint by making improvements. The earlier complaint was withdrawn on 7.4.2007 and now the new complaint resulting into FIR dated 11.7.2008 has been filed on old allegations by making improvements. The new complaint is the result of deliberations and advice. He has submitted that conduct of the prosecutrix is very relevant in the present case. On the contrary the crux of the submissions of learned Additional Advocate General is that prosecutrix submitted to the lust of the petitioner under misconception of marriage promise which was given by the petitioner to the prosecutrix, therefore, irrespective of the relationship between the petitioner and prosecutrix for many years and age of prosecutrix, it cannot be said that petitioner has not committed any offence of rape. He has submitted that if pre-arrest bail is granted to the petitioner, it will give wrong signal to the society. He has submitted that custodial interrogation of the petitioner is necessary for ascertaining the allegations of preparation of blue CD and other connected facts. 7. The learned counsel for the petitioner has cited judgement dated 13.7.2005 passed by a Division Bench of this Court in Cr.MP(M) No. 457 of 2005, titled State of H.P. vs. Rajeev …6… Sharma. In that case the accused was acquitted under Sections 376, 417 IPC read with Section 3 (x) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. This court vide order dated 13.7.2005, held that acquittal recorded by the learned trial Judge cannot be said to be perverse or dehors the evidence on record and did not grant leave to file an appeal. The present case is under Section 438 Cr.P.C. and therefore, Rajeev Sharma’s case (supra) is not applicable. The learned counsel for the petitioner has relied Vikas Vohra vs. State (Delhi Admn.) 1998 (1) Crimes 374. In that case the bail was granted on the facts of that case taking into consideration the long association between the prosecutrix and the accused. In that case the question of consent under misconception of marriage was not involved. Therefore, Vikas Vohra’s case (supra) is also not applicable in the present case. The learned counsel for the petitioner has also relied Gurvinder Singh alias Sonu vs. Union Territory, Chandigarh 2001 (2) Crimes 137. In that case, FIR was registered on the basis of the statement of prosecutrix on 25.3.2000, but after four days supplementary statement of the prosecutrix was recorded on 29.3.2000 and in that she named the bail petitioner. On those facts, the bail was granted. The facts in the present case are entirely different. The Hon’ble Supreme Court in Yedla Srinivasa Rao vs. State of A.P. 2006 (11) SCC 615 has considered consent of the prosecutrix under misconception of fact that accused would marry her and such consent is not consent in law. In the present case, the investigation is in progress. The petitioner, as per the respondent, has absconded. …7… 8. Therefore, keeping in view the fact and circumstances of the case and serious allegations against the petitioner, he is not entitled to pre-arrest bail at this stage. Resultantly, the petition is dismissed. 9. The observations made in the order shall not be construed as expression of opinion on the merits of the case. July 28, 2008. ( Kuldip Singh ) (Hem) Judge.