# Nan Bhaiya @ Mohd. Saeed v. State of U.P. Opp. Party

- **Citation:** (2022) 1 ILRA 875
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-01-04
- **Case number:** Crl. Misc. Bail Appl. No. 1510 of 2021
- **Bench:** Vikas Kunvar Srivastav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nan-bhaiya-mohd-saeed-v-state-of-u-p-opp-party-48068
- **Pages:** 6

## Headnote

G.A.

FIR alleged that accused-applicant
committed
rape
on
her
on
the
promise to marry her-no whisper
in the FIR or in statement u/s 164
Cr.P.C. that the victim was forced or
allured -case of commission of rape
not made out.

Bail allowed. (E-9)

List of Cases cited:

## Text

1 All. Nan Bhaiya @ Mohd. Saeed Vs. State of U.P.
875
Allahabad or certified copy issued from the
Registry of the High Court, Allahabad.

(8) The concerned Court/ Authority/
Official shall verify the authenticity of such
computerized copy of the order from the
official website of High Court Allahabad
and shall make a declaration of such
verification in writing.

12. It may be observed that in the
event of any breach of the aforesaid
conditions, the court below shall be at
liberty to proceed for the cancellation of
applicant's bail.

13. It is clarified that the observations,
if any, made in this order are strictly
confined to the disposal of the bail
application and must not be construed to
have any reflection on the ultimate merit of
the case.
----------
(2022)01ILR A875
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 04.01.2022

BEFORE

THE HON'BLE VIKAS KUNVAR SRIVASTAV, J.

Crl. Misc. Bail Appl. No. 1510 of 2021

Nan Bhaiya @ Mohd. Saeed ...Applicant
Versus
State of U.P. ...Opp. Party

Counsel for the Applicant:
Akhlaq Ali, Davdutt Prakhar, Farooq Ayoob,
Krishna Kumar Seth, Mohd. Islam Khan, Rekha
Verma

Counsel for the Respondents:
G.A.

FIR alleged that accused-applicant
committed
rape
on
her
on
the
promise to marry her-no whisper
in the FIR or in statement u/s 164
Cr.P.C. that the victim was forced or
allured -case of commission of rape
not made out.

Bail allowed. (E-9)

List of Cases cited:

1. Uday Vs St. of Karnataka, (2003) 4 SCC
46

2. Prahlad Singh Bhati Vs. NCT, Delhi & anr.-
(2001 4 SCC 280 ),

3. Sanjay Chandra Vs. Central Bureau of
Investigation reported in [(2012 1 SCC 40)-
(Spectrum Scam Case)]

4. Dataram Singh Vs. State of U.P. & ors.
reported in [(2018) 3 SCC 22]

(Delivered by Hon'ble Vikas Kunvar
Srivastav, J.)

1. The case is called on. Learned
counsel Sri Krishna Kumar Seth, Advocate
for the bail-applicant appeared to press the
application for bail on behalf of the
accused-applicant-Nan Bhaiya @ Mohd.
Saeed, involved in Case Crime No. 131 of
2020, under Sections 376, 504, 506 IPC,
Police Station Fursatganj, District Amethi.
Learned Additional Government Advocate
Sri Vishnu Deo Shukla, Advocate on behalf
of the State is present.

2. Counter affidavit on behalf of the
State has already been filed and rejoinder
thereto is also on record.

3. Learned counsel referred the First
Information
Report
which
he
told,
registered after the application under
Section 156(3) of the Cr.P.C. was allowed
by the concerned Magistrate.
876 INDIAN LAW REPORTS ALLAHABAD SERIES

4. Briefly stating, it is complained in
the First Information Report that at about 8
p.m. in the night of 07.05.2020, the
complainant (whose name shall not be
disclosed and the word 'complainant/victim'
shall be read hereinafter wherever her
reference is needed), went in the garden of
Hazi Sultan situated near her house where
the present accused-applicant Nan Bhaiya
@ Mohd. Saeed committed rape on her and
explained her that since both of them
belong to the same caste, they will enter
into marriage after some time, therefore she
should not discreet the fact of sexual
relation between them to any body else.
Without specifying the time and date after
the
incident
dated
07.05.2020,
the
complainant/victim has further stated that
when she insisted to enter into marriage,
the
accused-applicant
abused
and
threatened to beat her which led her to
lodge the FIR. Further when she was
produced before the court of Magistrate for
recording the statement under Section 164
of the Cr.P.C., pursuant to lodging of the
FIR, she stated, some times in May, 2020,
the accused-applicant called telephonically
early in the morning at about 4 a.m. to
come his house, when she reached there he
brought her to his brother's home and
committed rape on her. Thereafter he called
her again in the garden of Hazi Sultan and
then also committed rape. She further
stated that the mobile phone was provided
by the accused-applicant himself to her for
keeping in contacts. The grievance set forth
in the complaint is the breach of promise to
marry sexual intercourse made with her by
the accused-applicant.

5. Learned counsel for the accusedapplicant submitted that the fact emerging
out from the First Information Report and
the statement under Section 164 of the
Cr.P.C. with regard to the consensual sexual
intercourse and thereafter lodging of the
First Information Report with allegation of
false promise to marry intended to make
sexual intercourse makes the case doubtful
as the complainant/victim herself is of 24
years' age, a well grown girl and she
admittedly entered consensually in sexual
relations with the accused-applicant. The
accused-applicant does not have criminal
antecedent, is a local resident and also an
relative
of
the
complainant
herself,
therefore there is no possibility of fleeing
away from the process of the Court. He is
ready and willing to face the trial. If he is
released on bail, the same would be helpful
for him in putting his defence efficaciously
and properly.

6. On the other hand, learned AGA,
on the basis of material made available to
him and the counter affidavit filed on
behalf of the State, has no rebuttal to the
admitted consensual sexual intercourse
between the complainant and the accusedapplicant on the alleged assurance of
promise of marriage.

7. In the statement under Section 164
Cr.P.C., the very inception of the physical
and sexual relation is alleged to have
occasioned when the present accusedapplicant made telephonic call to her at 4
a.m. in the early morning to come at his
house. She went to his house where he
made physical and sexual relation with her
and then again called the complainant on
07.05.2020 in the garden of Hazi Sultan at
about 8 p.m. in the night. She again went
there and the accused-applicant made
sexual relation with her. Such making of
sexual relation by the accused-applicant is
acquiesced by the complainant allegedly on
the promise to marry her by the accusedapplicant. There is no single whisper in the
First Information Report or in the statement
1 All. Nan Bhaiya @ Mohd. Saeed Vs. State of U.P.
877
of the complainant/victim before the court
of Magistrate under Section 164 Cr.P.C.
complaining that she was forced, put under
fear or allured or otherwise for the purpose
of getting her consent to make sexual
relation.

8. Section 90 of the IPC is quoted
hereunder where the consent when would
not be treated as valid consent is
prescribed:-

"90. Consent known to be given
under fear or misconception.--A consent
is not such a consent as it intended by any
section of this Code, if the consent is given
by a person under fear of injury, or under a
misconception of fact, and if the person
doing the act knows, or has reason to
believe, that the consent was given in
consequence of such fear or misconception;
or

Consent of insane person.--if the
consent is given by a person who, from
unsoundness of mind, or intoxication, is
unable to understand the nature and
consequence of that to which he gives his
consent; or

Consent of child.--unless the contrary
appears from the context, if the consent is
given by a person who is under twelve
years of age."

9. The question is whether the
complainant consented to sexual relation
under any misconception of fact with
regard to promise of marriage by the
accused-applicant or was her consent
based on fraudulent misrepresentation of
marriage
which
the
accused
never
intended to keep since the very inception
of the relationship. There is no such
allegation
which
made
the
consent
invalid from the very inception rather she
acquiesced in making sexual contact
and therefore it is not possible to hold in
the nature of evidence on record that the
accused obtained her consent at the
inception by putting her under any fear or
otherwise. This is to keep into mind that
she is a lady of 24 years' age, a well
grown person of sound mind.

10. For the purpose of deciding the
bail
plea
of
the
accused-applicant
arraigned under the offence punishable
under Section 376 IPC, it is necessary to
see prima facie whether on the evidence
collected by the prosecution, particularly
the statement of the prosecutrix, the
accused may be considered and held to
have
committed
rape
on
the
complainant/victim of the case.

11.

Admittedly,
the
sexual
intercourse, as alleged in the FIR and
statement under Section 164 Cr.P.C.
before the Magistrate, was established
between accused and the complainant
consensually. For the sake of ready
reference
Section
375
is
quoted
hereunder:-

"Section 375. Rape.--A man is said
to commit "rape" who, except in the case
hereinafter
excepted,
has
sexual
intercourse
with
a
woman
under
circumstances falling under any of the six
following descriptions:--

(First) -- Against her will.

(Secondly) --Without her consent.

(Thirdly) -- With her consent, when
her consent has been obtained by putting
her or any person in whom she is interested
in fear of death or of hurt.

(Fourthly) --With her consent, when
the man knows that he is not her husband,
and that her consent is given because she
878 INDIAN LAW REPORTS ALLAHABAD SERIES
believes that he is another man to whom
she is or believes herself to be lawfully
married.

(Fifthly) -- With her consent, when, at
the time of giving such consent, by reason
of unsoundness of mind or intoxication or
the administration by him personally or
through another of any stupefying or
unwholesome substance, she is unable to
understand the nature and consequences of
that to which she gives consent.

(Sixthly) -- With or without her
consent, when she is under sixteen years of
age. Explanation.--Penetration is sufficient
to
constitute
the
sexual
intercourse
necessary to the offence of rape.

(Exception) --Sexual intercourse by a
man with his own wife, the wife not being
under fifteen years of age, is not rape.]"

12. The case of commission of rape,
as set forth by the prosecution case in the
First Information Report and the material
collected by the Investigating Officer, is not
made out.

13.

Before
parting
with
the
discussion, it would be relevant to quote
here para 25 of the judgment of the Apex
Court in the case of Uday Vs. State of
Karnataka, (2003) 4 SCC 46:

"25....It usually happens in such cases,
when two young persons are madly in love,
that they promise to each other several
times that come what may, they will get
married. As stated by the prosecutrix the
appellant also made such a promise on
more
than
one
occasion.
In
such
circumstances
the
promise
loses
all
significance., particularly when they are
overcome with emotions and passion and
find
themselves
in
situations
and
circumstances where they, in a weak
moment, succumb to the temptation of
having sexual relationship. This is what
appears to have happened in this case as
well,
and
the
prosecutrix
willingly
consented to having sexual intercourse with
the appellant with whom she was deeply in
love, not because he promised to marry her,
but because she also desired it. In these
circumstances it would be very difficult to
impute to the appellant knowledge that the
prosecutrix had consented in consequence
of a misconception of fact arising from his
promise. In any even, it was not possible
for the appellant to know what was in the
mind
of
the
prosecutrix
when
she
consented,
because
there
were
more
reasons than one for her to consent."

14. This is established principle of
law that while assessing the entitlement of
an accused to be released on bail, his role
in the commission of offence with which,
he is arraigned and the evidences as to his
presence and involvement is to be given
weight.
In
case
the
presence
and
involvement of accused is prima facie
established
then
gravity
of
offence,
apprehension as to the tampering of
evidences and witnesses, if the accused is
released on bail, are to be considered.

15. In Prahlad Singh Bhati Vs.
NCT, Delhi and another - (2001 4 SCC
280 ), Hon'ble the Supreme Court has held
some parameters for grant of bail, which
are being quoted hereunder:-

"8. The jurisdiction to grant bail has to
be exercised on the basis of well-settled
principles
having
regard
to
the
circumstances of each case and not in an
arbitrary manner. While granting the bail,
the court has to keep in mind the nature of
accusations, the nature of evidence in
support thereof, the severity of the
punishment which conviction will entail,
1 All. Nan Bhaiya @ Mohd. Saeed Vs. State of U.P.
879
the
character,
behaviour,
means
and
standing of the accused, circumstances
which
are
peculiar
to
the
accused,
reasonable possibility of securing the
presence of the accused at the trial,
reasonable apprehension of the witnesses
being tampered with, the larger interests of
the public or State and similar other
considerations. It has also to be kept in
mind that for the purposes of granting the
bail the legislature has used the words
"reasonable grounds for believing" instead
of "the evidence" which means the court
dealing with the grant of bail can only
satisfy it (sic itself) as to whether there is a
genuine case against the accused and that
the prosecution will be able to produce
prima facie evidence in support of the
charge. It is not expected, at this stage, to
have the evidence establishing the guilt of
the accused beyond reasonable doubt."

16. The purpose of the bail is neither
to punish the accused-appellant by keeping
him in jail or to teach him a lesson but the
object of the bail is to ensure the presence
of the accused-appellant during the trial.
Hon'ble the Supreme Court in para 21, 22
and 23 of the judgment given in the case of
Sanjay Chandra Vs. Central Bureau of
Investigation reported in [(2012 1 SCC
40)-(Spectrum Scam Case)], has laid
down certain objects of bail under Section
437 & 439 of the Cr.P.C. which are as
follows:

"21. In bail applications, generally, it
has been laid down from the earliest times
that the object of bail is to secure the
appearance of the accused person at his
trial by reasonable amount of bail. The
object of bail is neither punitive nor
preventative. Deprivation of liberty must be
considered a punishment, unless it is
required to ensure that an accused
person will stand his trial when called
upon. The courts owe more than verbal
respect to the principle that punishment
begins after conviction, and that every man
is deemed to be innocent until duly tried
and duly found guilty.

22. From the earliest times, it was
appreciated that detention in custody
pending completion of trial could be a
cause of great hardship. From time to time,
necessity demands that some unconvicted
persons should be held in custody pending
trial to secure their attendance at the trial
but in such cases, "necessity" is the
operative test. In this country, it would be
quite contrary to the concept of personal
liberty enshrined in the Constitution that
any person should be punished in respect of
any matter, upon which, he has not been
convicted or that in any circumstances, he
should be deprived of his liberty upon only
the belief that he will tamper with the
witnesses if left at liberty, save in the most
extraordinary circumstances.

23. Apart from the question of
prevention being the object of refusal of
bail, one must not lose sight of the fact that
any imprisonment before conviction has a
substantial punitive content and it would be
improper for any court to refuse bail as a
mark of disapproval of former conduct
whether the accused has been convicted for
it or not or to refuse bail to an unconvicted
person for the purpose of giving him a taste
of imprisonment as a lesson."

17. Therefore, keeping into mind the
valuable right of personal liberty and the
fundamental principle not to disbelieve a
person to be innocent unless held guilty and
if he is not arraigned with the charge of an
offence for which the law has put on him a
reverse burden of proving his innocence as,
880 INDIAN LAW REPORTS ALLAHABAD SERIES
held in the judgment of Hon'ble the
Supreme Court in Dataram Singh Vs.
State of U.P. and Others reported in
[(2018) 3 SCC 22], I find force in the
submission of learned counsel for the bailapplicant to enlarge him on bail.

18. Considering the rival submissions
of learned counsel for the parties, without
expressing any opinion on the merits of the
case
and
considering
the
nature
of
accusation, complicity of the accusedapplicant, gravity of the offence and the
severity
of
punishment
in
case
of
conviction and the period for which he is in
jail, I find force in the argument of learned
counsel for the accused-applicant. The
accused-applicant is entitled to be released
on bail in this case.

19. Let applicant-Nan Bhaiya @
Mohd. Saeed be released on bail in in
Case Crime No. 131 of 2020, under
Sections 376, 504, 506 IPC, Police
Station Fursatganj, District Amethi, on
his furnishing a personal bond worth Rs.
100,000/- and two reliable sureties of the
like amount of two different sureties
whose social and economic status shall be
subject to satisfaction and verification of
the court concerned subject to following
additional conditions, which are being
imposed in the interest of justice:-

(i) The applicant shall file an
undertaking to the effect that he shall not
seek any adjournment on the dates fixed
for evidence when the witnesses are
present in court. In case of default of this
condition, it shall be open for the trial
court to treat it as abuse of liberty of bail
and pass orders in accordance with law.

(ii) The applicant shall remain
present before the trial court on each date
fixed, either personally or through his
counsel. In case of his absence, without
sufficient cause, the trial court may
proceed against him under Section 229-A
of the Indian Penal Code.

(iii) In case, the applicant misuses
the liberty of bail during trial and in order
to secure his presence, proclamation
under Section 82 Cr.P.C. is issued and the
applicant fails to appear before the court
on the date fixed in such proclamation,
then,
the
trial
court
shall
initiate
proceedings against him, in accordance
with law, under Section 174-A of the
Indian Penal Code.

(iv) The applicant shall remain
present, in person, before the trial court
on the dates fixed for (i) opening of the
case, (ii) framing of charge and (iii)
recording of statement under Section 313
Cr.P.C. If in the opinion of the trial court
absence of the applicant is deliberate or
without sufficient cause, then it shall be
open for the trial court to treat such
default as abuse of liberty of bail and
proceed against him in accordance with
law.
----------
(2022)01ILR A880
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 03.01.2022

BEFORE

THE HON'BLE VIKAS KUNVAR SRIVASTAV, J.

Crl. Misc. Bail Appl. No. 8192 of 2021

Utkarsh Patel @ Uttu @ Raj Patel
 ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Ashutosh Kumar

Counsel for the Respondents:
G.A., Gulamali Rashidi