$~80
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Delivered on 24.02.2025
+ BAIL APPLN. 8/2025 & Crl. M.A. 43/2025
ANKIT RAJ .....Petitioner
Through: Mr. Surya Narayan Singh, Sr.
Advocate with Mr. Raman Yadav, Ms.
Priyam Kaushik, Mr. Harshith
Pottangi and Ms. Aashi Arora, Advs.
Petitioner in person.
versus
STATE OF NCT OF DELHI & ANR. .....Respondents
Through: Ms. Kiran Bairwa, APP for the State
with SI Soni Lal, PS Nabi Karim
Mr. Shiv Chopra, Ms. Surbhi Arora,
Mr. Siddharth Arora and Mr.
Dhanajay, Advocates for R-2
R-2 in person.
CORAM:
HON'BLE MR. JUSTICE VIKAS MAHAJAN
JUDGMENT
VIKAS MAHAJAN, J
1. The present petition has been filed by the petitioner under Section 528
BNSS 2023 seeking regular bail in connection with FIR No. 447/2024 under
Section 376 IPC registered at Police Station Nabi Karim (North), Delhi.
2. The gravamen of the allegations against the present petitioner is that he
had established physical relation with the prosecutrix on the pretext of false
marriage.
3. Mr. Surya Narayan Singh, learned Senior Counsel appearing on behalf
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Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:24.02.2025
20:09:24
of the petitioner submits that from the reading of the FIR it is borne out that
the petitioner as well as prosecutrix met through their respective families for
the purpose of their marriage and thereafter the petitioner and prosecutrix
were in regular touch. He submits that the relationship between the petitioner
and the prosecutrix were consensual in nature. He further contends that the
petitioner even got married to the prosecutrix on 21.01.2024 in the presence
of witnesses.
4. To support his contention, Mr. Surya Narayan Singh has invited
attention of the Court to the marriage certificate issued by Arya Samaj
Mandir, Mithapur (Bihar) which has been annexed as Annexure A-2 to the
present petition. He submits that even the status report filed by the State
shows that the documents of marriage were verified and as per the verification
report the petitioner and prosecutrix got married on 21.01.2024 with their
own consent in the presence of the witnesses.
5. He further submits that the circumstances of the present case shows
that it is not a case of false promise to marry, rather the petitioner did marry
the prosecutrix. Even the prosecutrix has admitted the factum of marriage in
her statement made before the CAW Cell, Subzi Mandi, Delhi, which has
been annexed as Annexure-A3 to the petition.
6. He further contends that the FIR itself shows that the petitioner and
prosecutrix had met on multiple occasions and travelled to various places and
stayed in hotels. He submits that if the petitioner was forcibly establishing the
physical relations with the prosecutrix or was repeatedly doing so on the false
pretext of marriage, there was no occasion for the prosecutrix to meet the
petitioner on various occasions.
7. He submits that the petitioner is in custody since 27.11.2024 and that
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Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:24.02.2025
20:09:24
the question as to whether it is a case of false promise to marry, does not
require custodial interrogation of the petitioner.
8. He submits that the petitioner does not have any criminal antecedents
nor he is a flight risk.
9. Per contra, learned APP assisted by Mr. Shiv Chopra, learned counsel
for the complainant/prosecutrix has argued on the lines of the status report.
He submits that the FIR contains allegations that the petitioner established
sexual relations with the prosecutrix during their visits to various places by
making false promise to marry. Mr. Shiv Chopra additionally submits that
some of the incidents alleged in the FIR are subsequent to the coming into
force of the BNS, 2023 on 01.07.2024, therefore, even if the relationship was
consensual, still it was made by making false promise to marry, therefore, the
offence under Section 69 BNS, 20231 is made out.
10. I have heard the learned counsel for the petitioner as well as the learned
APP for the State and the learned counsel for the complainant/prosecutrix and
have also perused the record.
11. It is the case of the prosecution itself that there was a proposal of
marriage alliance of the petitioner with the prosecutrix which appears to have
been arranged by their respective families and that the petitioner and
prosecutrix met for the first time along with their respective families.
12. From the perusal of FIR it is not clear that whether the petitioner and
the prosecutrix got formally engaged or any date was fixed for their marriage
1
69. Sexual intercourse by employing deceitful means, etc.—Whoever, by deceitful means or by making
promise to marry to a woman without any intention of fulfilling the same, has sexual intercourse with her,
such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either
description for a term which may extend to ten years and shall also be liable to fine.
Explanation.— “deceitful means” shall include inducement for, or false promise of employment or
promotion, or marrying by suppressing identity.
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Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:24.02.2025
20:09:24
with the consent of both the families. However, reading of the status report,
makes it plain that the petitioner and prosecutrix got married on 21.01.2024 in
Arya Samaj Mandir, Mithapur (Bihar) and this fact was duly verified as per
the verification report referred to in the status report. Along with the petition
also, a copy of the marriage certificate issued by the aforesaid Arya Samaj
Mandir has been annexed. Further, the prosecutrix in her statement given to
CAW Cell, Subzi Mandi, Delhi has stated that she married petitioner on
21.01.2024 as per Arya Samaj rituals. The said statement is annexed as
Annexure-A3 to the petition.
13. In above backdrop, even assuming that the allegations of sexual
relationship being established by the petitioner with the prosecutrix on the
pretext of marriage to be correct, it cannot prima facie be said that the
petitioner had no intention to marry the prosecutrix from the inception or that
the petitioner had made any false promise to marry to deceive the prosecutrix.
14. In Deepak Gulati Vs. State of Haryana (2013) 7 SCC 675, Hon’ble
Supreme Court observed that there is a clear distinction between rape and
consensual sex and further there is also distinction between mere breach of
promise, and not fulfilling a false promise. An accused can be convicted for
rape only if the court reaches a conclusion that the intention of the accused
was mala fide, and that he had clandestine motives. The relevant part of the
judgment reads as thus:
“21. Consent may be express or implied, coerced or misguided,
obtained willingly or through deceit. Consent is an act of reason,
accompanied by deliberation, the mind weighing, as in a
balance, the good and evil on each side. There is a clear
distinction between rape and consensual sex and in a case like
this, the court must very carefully examine whether the
accused had actually wanted to marry the victim, or had mala
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Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:24.02.2025
20:09:24
fide motives, and had made a false promise to this effect only to
satisfy his lust, as the latter falls within the ambit of cheating or
deception. There is a distinction between the mere breach of a
promise, and not fulfilling a false promise. Thus, the court must
examine whether there was made, at an early stage a false
promise of marriage by the accused; and whether the consent
involved was given after wholly understanding the nature and
consequences of sexual indulgence. There may be a case where
the prosecutrix agrees to have sexual intercourse on account of
her love and passion for the accused, and not solely on account
of misrepresentation made to her by the accused, or where an
accused on account of circumstances which he could not have
foreseen, or which were beyond his control, was unable to
marry her, despite having every intention to do so. Such cases
must be treated differently. An accused can be convicted for
rape only if the court reaches a conclusion that the intention of
the accused was mala fide, and that he had clandestine
motives.
xxxxxx xxxxxx xxxxxx
24. Hence, it is evident that there must be adequate evidence to
show that at the relevant time i.e. at the initial stage itself, the
accused had no intention whatsoever, of keeping his promise to
marry the victim. There may, of course, be circumstances, when
a person having the best of intentions is unable to marry the
victim owing to various unavoidable circumstances. The “failure
to keep a promise made with respect to a future uncertain date,
due to reasons that are not very clear from the evidence
available, does not always amount to misconception of fact. In
order to come within the meaning of the term “misconception of
fact”, the fact must have an immediate relevance”. Section 90
IPC cannot be called into aid in such a situation, to pardon the
act of a girl in entirety, and fasten criminal liability on the
other, unless the court is assured of the fact that from the very
beginning, the accused had never really intended to marry
her.”
(emphasis supplied)
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Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:24.02.2025
20:09:24
15. Likewise, in Pramod Suryabhan Pawar vs. Tate of Maharashtra
(2019) 9 SCC 608, it was observed as under:
“14. In the present case, the “misconception of fact” alleged by
the complainant is the appellant's promise to marry her.
Specifically in the context of a promise to marry, this Court has
observed that there is a distinction between a false promise given
on the understanding by the maker that it will be broken, and the
breach of a promise which is made in good faith but subsequently
not fulfilled.”....
xxxx xxxxx xxxx xxxx
16. Where the promise to marry is false and the intention of
the maker at the time of making the promise itself was not to
abide by it but to deceive the woman to convince her to engage in
sexual relations, there is a “misconception of fact” that vitiates
the woman's “consent”. On the other hand, a breach of a
promise cannot be said to be a false promise. To establish a false
promise, the maker of the promise should have had no
intention of upholding his word at the time of giving it. The
“consent” of a woman under Section 375 is vitiated on the
ground of a “misconception of fact” where such misconception
was the basis for her choosing to engage in the said act. ...”
xxxx xxxxx xxxx
18. To summarise the legal position that emerges from the
above cases, the “consent” of a woman with respect to Section
375 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.”
(emphasis supplied)
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Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:24.02.2025
20:09:24
16. Similarly in Anurag Soni v. State of Chhatishgarh (2019) 13 SCC 1, it
was observed as under:
“12. The sum and substance of the aforesaid decisions would be
that if it is established and proved that from the inception the
accused who gave the promise to the prosecutrix to marry, did
not have any intention to marry and the prosecutrix gave the
consent for sexual intercourse on such an assurance by the
accused that he would marry her, such a consent can be said to
be a consent obtained on a misconception of fact as per Section
90 IPC and, in such a case, such a consent would not excuse the
offender and such an offender can be said to have committed the
rape as defined under Sections 375 IPC and can be convicted for
the offence under Section 376 IPC.”
17. Thus, it cannot be said that the petitioner had no intention to
marry,rather the case of the petitioner in the present petition is that marriage
was solemnized by the petitioner with the prosecutrix in the presence of
witnesses on 21.01.2024,though it is not borne out from the material on
record that the said marriage had an imprimatur of the respective families of
the petitioner as well as the prosecutrix. However, the factum of marriage
has been affirmed by the State in its status report and is also supported by the
prosecutrix in her statement given to CAW Cell.
18. The prosecutrix who appeared in person in the Court stated that the
petitioner has subsequently married another woman, but the alleged fact is not
borne out from the status report. Even assuming that the petitioner had
subsequently married another woman, prima facie the same will not affect the
legality of petitioner’s marriage with the prosecutrix nor validity of such
subsequent marriage of the petitioner to another woman is a subject matter of
the present petition.
19. In so far Mr. Shiv Chopra’s submission that offence is also made out
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Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:24.02.2025
20:09:24
under Section 69 of BNS, 2023, suffice to note that the said section came into
force w.e.f. 01.07.2024 but the marriage of the petitioner with the prosecutrix
was solemnized much prior to that on 21.01.2024, therefore, it remains
doubtful that the offence of sexual intercourse by making false promise to
marry, is made out under Section 69 of BNS, 2023. However, the ultimate call
in this regard will be taken by the learned trial court at an appropriate stage.
20. It is also the case of the prosecution that the petitioner is an employee
of Punjab National Bank, therefore, he does not appear to be a flight risk.
Even otherwise, the allegation that it is a case of making false promise to
marry is a matter of trial and does not warrant further custody. Further, the
petitioner does not have criminal record.
21. In the facts and circumstances of the present case, this Court is of the
view that the petitioner has made out a case for grant of regular bail.
Accordingly, the petitioner is admitted to regular bail subject to his furnishing
a personal bond in the sum of Rs. 25,000/- with one surety of the like amount
to the satisfaction of the learned Trial Court/JMFC/Duty JM, further subject
to the following conditions:
a) Petitioner shall appear before the Court as and when the matter is
taken up for hearing.
b) Petitioner shall provide mobile number to the IO concerned
which shall be kept in working condition at all times and he shall not
change the mobile number without prior intimation to the Investigating
Officer concerned.
c) Petitioner/applicant shall not indulge in any criminal activity and
shall not communicate with or come in contact with the witnesses or
any family members of the witnesses.
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Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:24.02.2025
20:09:24
22. It is clarified that the observations made above are only for the purpose
of the deciding the present petition for bail and nothing mentioned herein
shall be construed as expression of opinion on the merits of the case.
23. The application is disposed of.
24. Copy of the order be forwarded to the concerned Jail Superintendent
for necessary compliance.
25. Order dasti under signatures of the Court Master.
VIKAS MAHAJAN, J
FEBRUARY 24, 2025
‘rs’
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Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:24.02.2025
20:09:24
