# Riyazuddin v. State of U.P. & Anr

- **Citation:** (2023) 8 ILRA 1236
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-31
- **Case number:** Crl. Misc. Anticipatory Bail Application (U/S 438 Cr.P.C.) No. 5408 of 2023
- **Bench:** Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/riyazuddin-v-state-of-u-p-anr-50523
- **Pages:** 6

## Headnote

Law-The
Code
of
Criminal
Procedure, 1973-Section438 -The Indian
Penal Code,1860-Sections 376, 504 &
506- The physical relations between the
prosecutrix and the accused developed on the
basis of a promise to marry on the part of the
accused applicant, which continued for about
one year, but significantly, in the present case,
this is not the accused applicant, who refused to
marry with the prosecutrix, though alleged so in
the F.I.R. The supplementary affidavit consists
of a specific averment that this is the
prosecutrix, who had already performed her
marriage with one Rizwan whereas the present
applicant is still a bachelor and hence it cannot
be said at this stage that the promise to marry
was broken by the applicant himself-Fit case for
anticipatory bail to the applicant till end of the
trial. (E-15)

List of Cases cited:

## Text

1236 INDIAN LAW REPORTS ALLAHABAD SERIES
assured that they would refund the money
to the informant but still they have not
refunded the same.

22. As has already been stated in the
preceding paragraphs, mere non-payment
of money paid under a contract cannot be a
ground for criminal prosecution of a party
to the agreement and, in any case, that
cannot be a ground for rejection of the
anticipatory bail application of the accused
person. Therefore, I am of the view that the
application for grant of anticipatory bail to
the applicant cannot be rejected on this
ground.

23. Regarding the applicant, it is
mentioned in the F.I.R. that co-accused
Anand
Kumar
Singh
alias
Baba
Trikaldarshi had asked the informant to put
his signature on some documents which
documents had been prepared by the
applicant. Obviously, the informant would
not be required to sign the letter dated
08.03.2019 issued by the Additional
District Magistrate on behalf of the District
Magistrate and, therefore, the aforesaid
allegation would not lead to an inference
that the applicant had forged the letter
dated 08.03.2019. The F.I.R. contains no
allegation that the letter dated 08.03.2019
had been forged or fabricated by the
applicant.

24. The learned Counsel for the
applicant has informed that the applicant
has submitted bail bonds in terms of the
order dated 16.01.2023 passed by this
Court. The learned A.G.A. could not point
out any violation of the conditions of
anticipatory bail or misuse thereof by the
applicant.

25. In the aforesaid circumstances, I
find no good ground to take a view
different from the view taken by this Court
while passing the order dated 16.01.2023.
Therefore, the order dated 16.01.2023 is
made absolute and the application is
allowed in terms of the aforesaid order.
----------
(2023) 8 ILRA 1236
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.07.2023

BEFORE

THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Crl. Misc. Anticipatory Bail Application (U/S 438
Cr.P.C.) No. 5408 of 2023

Riyazuddin ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Vinod Singh

Counsel for the Opposite Parties:
G.A.

Criminal
Law-The
Code
of
Criminal
Procedure, 1973-Section438 -The Indian
Penal Code,1860-Sections 376, 504 &
506- The physical relations between the
prosecutrix and the accused developed on the
basis of a promise to marry on the part of the
accused applicant, which continued for about
one year, but significantly, in the present case,
this is not the accused applicant, who refused to
marry with the prosecutrix, though alleged so in
the F.I.R. The supplementary affidavit consists
of a specific averment that this is the
prosecutrix, who had already performed her
marriage with one Rizwan whereas the present
applicant is still a bachelor and hence it cannot
be said at this stage that the promise to marry
was broken by the applicant himself-Fit case for
anticipatory bail to the applicant till end of the
trial. (E-15)

List of Cases cited:

1. Pramod Suryabhan Pawar Vs The St. of Mah.
& anr., 2019 (9) SCC 608
8 All. Riyazuddin Vs. State of U.P. & Anr.
1237
2. Sonu @ Subhash Kumar Vs St. of U.P. & anr.,
2021 0 Supreme (SC) 182

3. Criminal Appeal No.257 of 2023, Naim
Ahamed Vs St. (NCT of Delhi), 2023 LiveLaw
(SC) 66

4. Sushila Aggarwal & ors. Vs St. (NCT of Delhi)
& anr., (2020) 5 SCC 1

5. Aman Preet Singh Vs C.B.I. Through Director,
2021 SCC OnLine SC 941

(Delivered by Hon'ble Nalin Kumar
Srivastava, J.)

1. Supplementary affidavit filed today
is taken on record.

2. Heard learned counsel for the
applicant, learned A.G.A. for the State and
perused the material available on record.

3. Apprehending his arrest in Case
Crime No.551 of 2019, under Sections 376,
504, 506 IPC, Police Station Tanda,
District
Rampur,
the
applicant
-
Riyazuddin has filed this anticipatory bail
application seeking anticipatory bail in the
aforesaid crime number.

4. It is alleged in the F.I.R. that on the
false pretext of marriage, the accused
applicant made physical relations with the
prosecutrix for about one year and
subsequently refused to marry her and
threatened her to kill. F.I.R. was lodged on
16.11.2019 and investigation started and
now charge-sheet has been submitted.

5. It is submitted by the learned
counsel for the applicant that the applicant
is innocent and he has apprehension of his
arrest
in
the
above-mentioned
case,
whereas there is no credible evidence
against her. He has been falsely implicated
into this matter. Allegations levelled
against the applicant are false. The
investigation
of
the
case
has
been
completed and charge-sheet has been filed.
It is further submitted that the applicant
never made any promise to marry with the
prosecutrix. It is further submitted that it is
a case of consensual relationship and the
prosecutrix is a major lady and she was
living with the applicant on her own free
will and consent and the applicant never
made
physical
relations
with
the
prosecutrix forcibly or against her will. It is
further submitted that in her statement
recorded u/s 164 Cr.P.C., the prosecutrix
has stated that she was in love with the
applicant and she made physical relations
with the applicant out of her own free will.
It is further submitted that protection was
granted to the applicant by this Court till
filing of police report u/s 173 (2) Cr.P.C. in
Crl. Misc. Writ Petition No. - 24816 of
2019 vide order dated 5.12.2019 and the
applicant has not misused the liberty
granted to him. It is further submitted that
the applicant has been cooperative during
the course of investigation. He has no
criminal history to his credit. No coercive
process has been issued against the
applicant. It is further submitted that no
custodial interrogation is required in this
matter from the applicant. Now after
submission
of
the
charge-sheet,
the
applicant is entitled for anticipatory bail till
the end of trial.

6. Learned A.G.A. opposed the prayer
for anticipatory bail and it has been
submitted that after collecting ample
evidence, charge-sheet has been submitted
in this matter. Medical report supports the
prosecution version.

7. By way of supplementary affidavit
filed today, the applicant has brought this
fact to the notice of this Court that he is
1238 INDIAN LAW REPORTS ALLAHABAD SERIES
still a bachelor whereas the prosecutrix
performed marriage with one Rizwan s/o
Kaluwa r/o Mohalla Vijay Nagar, Police
Station Kashipur, District Udham Singh
Nagar (Uttrakhand).

8. Now a days the Courts are overflooded with the matters wherein it is
alleged that the male accused, on the false
promise of marriage, only to fulfill his lust,
made physical relations with the victim and
subsequently did not keep his promise and
left her abandoned. In such matters, what
the Court should actually look into is the
intention of the accused from very
inception of the relation.

9. Hon'ble Apex Court in Pramod
Suryabhan Pawar Vs. The State of
Maharashtra & Anr., 2019 (9) SCC 608
has categorically held that there is a
distinction between a false promise given
on understanding by maker that it will be
broken and breach of a promise which is
made in good faith but subsequently not
fulfilled.

In paragraph 14 of the aforesaid
judgment, the Hon'ble Apex Court held that :

"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. In Anurag
Soni v State of Chhattisgarh, (2019) SCC
OnLine SC 509, this Court held:

"37. 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 of the 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 Section 375 of the IPC and can be
convicted for the offence under Section 376
of the IPC."

Similar observations were made
by this Court in Deepak Gulati v State of
Haryana, (2013) 7 SCC 675 ("Deepak
Gulati"):

"21. ? 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?"

Further, in paragraph 16 of the
aforesaid judgment explaining the terms -
misconception of fact, consent and breach
of promise, the Hon'ble Supreme Court
observed that :

"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
8 All. Riyazuddin Vs. State of U.P. & Anr.
1239
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. In
Deepak Gulati this Court observed:

"21. ? 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.

...

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)

10. In the present case, it reflects from
the factual matrix of the matter that the
physical relations between the prosecutrix
and the accused developed on the basis of a
promise to marry on the part of the accused
applicant, which continued for about one
year, but significantly, in the present case,
this is not the accused applicant, who
refused to marry with the prosecutrix,
though alleged so in the F.I.R. The
supplementary affidavit filed today consists
of a specific averment that this is the
prosecutrix, who had already performed her
marriage with one Rizwan whereas the
present applicant is still a bachelor and
hence it cannot be said at this stage that the
promise to marry was broken by the
applicant himself.

11. In Sonu @ Subhash Kumar Vs.
State of U.P. & Anr., 2021 0 Supreme
(SC) 182, in almost similar circumstances
where the parties, who were adult and had
been in consensual relationship for about a
period of one and a half years, it was found
that there was no allegation to the effect
that promise to marry given to the victim
was false at inception, benefit was given to
the main accused.

12. In Criminal Appeal No.257 of
2023, Naim Ahamed Vs. State (NCT of
1240 INDIAN LAW REPORTS ALLAHABAD SERIES
Delhi), 2023 LiveLaw (SC) 66 filed
against conviction under Section 376 IPC,
the Hon'ble Apex Court, reiterating the
same principle, categorically observed that
:

"20. ... The bone of contention
raised on behalf of the respondents is that
the prosecutrix had given her consent for
sexual
relationship
under
the
misconception of fact, as the accused had
given a false promise to marry her and
subsequently he did not marry, and
therefore such consent was no consent in
the eye of law and the case fell under the
Clause ? Secondly of Section 375 IPC. In
this regard, it is pertinent to note that there
is a difference between giving a false
promise and committing breach of promise
by the accused. In case of false promise,
the accused right from the beginning would
not have any intention to marry the
prosecutrix and would have cheated or
deceited the prosecutrix by giving a false
promise to marry her only with a view to
satisfy his lust, whereas in case of breach of
promise, one cannot deny a possibility that
the accused might have given a promise
with all seriousness to marry her, and
subsequently
might
have
encountered
certain circumstances unforeseen by him or
the circumstances beyond his control,
which prevented him to fulfill his promise.
So, it would be a folly to treat each breach
of promise to marry as a false promise and
to prosecute a person for the offence under
Section 376. As stated earlier, each case
would depend upon its proved facts before
the court."

13. In the present case, the fact of
submission of charge sheet into the court,
does not certainly precludes the applicant
to approach this Court for a protection by
way of anticipatory bail.

14. In Sushila Aggarwal and others
vs. State (NCT of Delhi) and another,
(2020) 5 SCC 1, the Hon'ble Apex Court
has settled the controversy finally by
holding the anticipatory bail need not be of
limited duration invariably. In appropriate
case, it can continue upto conclusion of
trial.

It has been further held therein
that
anticipatory
bail
granted
can,
depending on the conduct and behavior of
the accused, continue after filing of the
charge sheet till end of trial.

It has been further held by the
Hon'ble Apex Court that while considering
an application for grant of anticipatory bail,
the court has to consider the nature of the
offence, the role of the person, the
likelihood of his influencing the course of
investigation, or tampering with evidence
including intimidating witnesses, likelihood
of fleeing justice, such as leaving the
country, etc. It has further been held that
Courts ought to be generally guided by
considerations such as the nature and
gravity of the offences, the role attributed
to the applicant, and the facts of the case,
while
considering
whether
to
grant
anticipatory bail, or refuse it. Whether to
grant or not is a matter of discretion.

15. Reiterating the principle abovementioned, the Hon'ble Apex Court in
Aman Preet Singh Vs. C.B.I. Through
Director, 2021 SCC OnLine SC 941,
while referring to a judgment of Delhi High
Court in Court on its own Motion Vs.
Central Bureau of Investigation, (2004) 72
DRJ 629, held so in paragraph 11 of the
aforesaid judgment.

"11. ... Insofar as the present case
is concerned and the general principles
8 All. Raj Kapoor Vs. State of U.P. & Ors.
1241
under Section 170 Cr.P.C., the most
apposite observations are in sub-para (v) of
the High Court judgment in the context of
an accused in a non-bailable offence whose
custody was not required during the period
of investigation. In such a scenario, it is
appropriate that the accused is released on
bail as the circumstances of his having not
been arrested during investigation or not
being produced in custody is itself
sufficient to entitle him to be released on
bail. The rationale has been succinctly set
out that if a person has been enlarged and
free for many years and has not even been
arrested during investigation, to suddenly
direct his arrest and to be incarcerated
merely because charge sheet has been filed
would be contrary to the governing
principles for grant of bail. We could not
agree more with this."

16. Undoubtedly, it is a case of
consensual relationship between two major
persons. The applicant was not arrested
during the course of investigation nor
required to be taken into custody by the
Investigating
Officer
and
now
after
submission of charge sheet, no custodial
interrogation is required. Hence, in the light
of the aforesaid legal pronouncements and
considering the facts and circumstances of
the case, submissions of the learned
counsel
for
the
parties,
nature
of
accusation, role of applicant, without
expressing any opinion of the merits of the
case, in my view, it is a fit case for
anticipatory bail to the applicant till end of
the trial in the matter.

17. The anticipatory bail application
is allowed.

18. In the event of arrest of the
applicant in the aforesaid case crime, he
shall be released on anticipatory bail till
end of the trial on his furnishing a personal
bond of Rs. 50,000/- with two sureties each
in the like amount to the satisfaction of the
Court
concerned
with
the
following
conditions :-

(i) The applicant shall make
himself
available
before
the
court
concerned on the date fixed in the matter;

(ii) The applicant shall not
directly
or
indirectly,
make
any
inducement, threat or promise to any
person acquainted with the facts of the case
so as to dissuade him / her from disclosing
such facts to the Court or to any police
officer;

(iii) The applicant shall not leave
India without the previous permission of
the Court and if he has passport, the same
shall be deposited by him before the
S.S.P./S.P. Concerned.

19. In case of default of any of the
conditions, same may be a ground for
cancellation of protection granted to the
applicant.
----------
(2023) 8 ILRA 1241
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.07.2023

BEFORE

THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Crl. Misc. Anticipatory Bail Application (U/S 438
Cr.P.C.) No.7762 of 2023

Raj Kapoor ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri Brij Bhushan Upadhyay