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CR.MA/550/2010 2/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 550 of 2010
=========================================================
PREMABHAI
HARKHABHAI VAGHARI
Versus
STATE
OF GUJARAT
=========================================================
Appearance :
MR
MM TIRMIZI for Applicant.
MS ML SHAH, ADDL. PUBLIC PROSECUTOR for
Respondent.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 18/02/2010
ORAL
ORDER
This
petition is filed under section 439 r.w. section 482 of the Code of
Criminal Procedure by the applicant who has been arrested in
connection with C.R. No. I-39 of 2009 filed before Deodar Police
Station, Dist. Banaskantha for offence punishable under sections 366,
376, 504 and 114 of the Indian Penal Code.
Mr.
Tirmizi, learned advocate for the applicant submitted that the
applicant is an innocent person and no case is made out against the
applicant for offence punishable under sections 366 and 376 of the
Indian Penal Code. He further submitted that on perusal of the FIR
and the statement of the victim, it becomes clear that the victim on
her own volition and free will accompanied the applicant and
ultimately married the applicant. Learned advocate placed reliance on
the certificate of marriage which is produced along with the
compilation in support of the submissions made at the bar. Learned
advocate submitted that the applicant along with the daughter of the
complainant moved an application before this Court, being Misc.
Criminal Application No. 5424 of 2009 for quashing the present
complaint, i.e. C.R. No. I-39 of 2009 filed before Deodar Police
Station and this Court initially granted stay of the proceedings and
investigation relating to the said FIR. However, subsequently, the
said application was withdrawn. Learned advocate further submitted
that the applicant had taken divorce from his earlier wife, Geetaben,
on 06.04.2009 but that aspect was not considered by the learned Judge
while rejecting the bail application of the applicant. Learned
advocate submitted that the statement of the victim is dated
22.12.2009 and the same cannot be referred to by the learned
Additional Public Prosecutor as it is not a part of the charge sheet
papers. Learned advocate submitted that considering the aforesaid
facts and circumstances of the case, the prayer as set out by the
applicant deserves to be granted and the applicant be released on
bail. Learned advocate has placed reliance on the following
judgments:
1. AIR 2005 SC 203
Deelip Singh v. State of Bihar.
2. AIR 2003 SC
1639 Uday vs. State of Karnataka
On
the other hand, Ms. M.L. Shah, learned APP while opposing the bail
application, submitted that the applicant was married with Geetaben
and no divorce was obtained from Geetaben and when the victim was
allured by the applicant, she was never informed that divorce was not
obtained, and when the victim went to the house of the applicant
after the marriage, she came to know that the applicant is married to
Geetaben and he has five children
from the said marriage. This fact has been clearly stated by the
victim in her statement dated 22.12.2009. It is also stated by the
victim that after inducing her, the applicant had also committed rape
against her wish and desire. Thus, the learned APP submitted that
considering the statement of the victim, it becomes clear that the
applicant, after alluring the victim to marry him, committed rape on
her and the victim was not informed of the fact that the applicant
has not taken divorce from the first wife, Geetaben or that he has
five children in the said marriage. Learned APP submitted that
considering the aforesaid facts, the applicant is not entitled to
discretionary relief as prayed for in this application and the
application deserves to be dismissed. Learned APP has also placed
reliance on the provisions of section 90 of the Indian Penal Code in
support of her submission that when the consent which is given under
fear or misconception by a particular person, then the same cannot be
construed as a true consent. She submitted that even if it is assumed
that consent was given by the victim to the applicant for marriage,
it was given under a misconception on the misrepresentation made by
the applicant. She therefore submitted that in view of this fact
also, the applicant is not entitled to the relief as prayed for.
I
have heard learned advocates appearing in the matter at length and in
great detail. I have also considered the averments made in the
application as well as the role attributed to the applicant in the
FIR. The statement of the victim recorded on 12.12.2009 is also
carefully perused by me. From an overall consideration of the
aforesaid documents, it becomes clear that the victim
was lured by the applicant by giving a false promise. The victim was
never informed of the fact that no divorce was taken from the first
wife and that he had five children from the said marriage and the
victim came to know about it only on her reaching the house of the
applicant after the marriage. Thus the victim was deceived. In this
backdrop, the consent, if at all there was any, was under a
misconception and it cannot be said to be a valid consent for
marriage given by the victim to the applicant. Thus, considering the
aforesaid aspect, the applicant has primafacie committed an offence
punishable under sections 366 and 376 of the Indian Penal Code.
I have also
considered the judgments cited by the learned advocate in support of
his submissions. There is no dispute with the ratio and proposition
of law laid down by the Honourable Apex Court. However, in the facts
of the case referred to hereinabove, the said judgments are not
applicable in the present case.
For
the foregoing reasons, this Court is not inclined to exercise
its discretionary jurisdiction in favour of the applicant. The
application is rejected. Rule is discharged.
mathew [
H.B. ANTANI, J.]
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