# Vivek Kumar Maurya v. State of U.P. & Ors

- **Citation:** (2023) 8 ILRA 1247
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-27
- **Case number:** Crl. Misc. Ist Bail Application No. 23551 of 2023
- **Bench:** Siddharth
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vivek-kumar-maurya-v-state-of-u-p-ors-50525
- **Pages:** 6

## Headnote

Law-The
Code
of
Criminal
Procedure, 1973-Section-439 - The Indian
Penal Code-1860-Sections 90, 323 & 375-
Conduct of the prosecutrix of repeatedly eloping
from her parental home with applicant and
going to Delhi, Lucknow, Mughalsarai and to the
places of relatives of the applicant shows that
she was a consenting party all through- All the
places where the applicant took the prosecutrix
she admits entering into physical relationship
with the applicant without any element of
coercion before and after her court marriage,
therefore her consent was not covered under
Section 90 of IPC, nor physical relationship
made by applicant with prosecutrix will come
under the definition of rape as per Section
375 IPC- Allegations of her physical torture
are not supported by any medical report. In
the FIR it is alleged that the injuries of
prosecutrix were treated by her mother at
home. This also proves the meticulous
drafting of FIR by an expert. There cannot be
any evidence of treatment of home, but to
justify implication under Section 323 IPC such
an allegation was made.

Bail application is allowed. (E-15)

List of Cases cited:
Satendra Kumar Antil Vs C.B.I., passed in S.L.P
(Crl.) No. 5191 of 2021

## Text

8 All. Vivek Kumar Maurya Vs. State of U.P. & Ors.
1247
----------
(2023) 8 ILRA 1247
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.07.2023

BEFORE

THE HON'BLE SIDDHARTH, J.

Crl. Misc. Ist Bail Application No. 23551 of 2023

Vivek Kumar Maurya ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for Applicant:
Om Narayan Pandey

Counsel for the Opposite Parties:
G.A., Sri Lakshman Tripathi

Criminal
Law-The
Code
of
Criminal
Procedure, 1973-Section-439 - The Indian
Penal Code-1860-Sections 90, 323 & 375-
Conduct of the prosecutrix of repeatedly eloping
from her parental home with applicant and
going to Delhi, Lucknow, Mughalsarai and to the
places of relatives of the applicant shows that
she was a consenting party all through- All the
places where the applicant took the prosecutrix
she admits entering into physical relationship
with the applicant without any element of
coercion before and after her court marriage,
therefore her consent was not covered under
Section 90 of IPC, nor physical relationship
made by applicant with prosecutrix will come
under the definition of rape as per Section
375 IPC- Allegations of her physical torture
are not supported by any medical report. In
the FIR it is alleged that the injuries of
prosecutrix were treated by her mother at
home. This also proves the meticulous
drafting of FIR by an expert. There cannot be
any evidence of treatment of home, but to
justify implication under Section 323 IPC such
an allegation was made.

Bail application is allowed. (E-15)

List of Cases cited:
Satendra Kumar Antil Vs C.B.I., passed in S.L.P
(Crl.) No. 5191 of 2021

(Delivered by Hon'ble Siddharth, J.)

1. Heard learned counsel for the
applicant; Shri Lakshman Tripathi, learned
counsel for the informant and learned
A.G.A.

2. The instant bail application has
been filed on behalf of the applicant, Vivek
Kumar Maurya, with a prayer to release
him on bail in Case Crime No. 143 of
2020, under Sections 363, 366, 376, 323,
504, 506, 354, 354-A IPC and 3/4 POCSO
Act Police Station Sarnath, District-
Varanasi, during pendency of trial.

3. There are allegations of abduction
of minor girl with intent to marry,
commission of offfence of rape, beating,
threatening, outraging her modesty, sexual
harassment and penetrative sexual assault
against the applicant.

4. There is allegation in the First
Information
Report
that
prosecutrix,
resident of Varanasi, was made to enter
into physical relationship with applicant for
about one year on false promise of
marriage, when she was student of B.SC.,
Part-1. Whenever prosecutrix talked to
applicant about their marriage he used to
avoid her request. On 3.5.2019, when
prosecutrix was going to college, applicant
enticed her from the way at 7 a.m in the
morning and took her to Delhi at his aunt's
place where he made physical relationship
with her. Father of the prosecutrix gave an
application at the police station on 4.5.2019
about
her
abduction
by
applicant.
Thereafter the father and mother of the
applicant pressurised the father and mother
of prosecutrix and they threatened them of
1248 INDIAN LAW REPORTS ALLAHABAD SERIES
life in case they made any statement before
the police against their son, the applicant.
Therefore, father of prosecutrix withdrew
the compliant made to the police on
7.5.2019 and prosecutrix was dropped back
to her house by the applicant and coaccused persons, but the activities of the
applicant did not changed. Again whenever
there was no one in the house of the
prosecutrix applicant used to come and
make physical relationship with prosecutrix
by extending false promise of marriage. On
27.8.2019 at 8 a.m applicant took the
prosecutrix to the registrar and got their
marriage registered. Thereafter he took the
prosecutrix to Lucknow where he made
physical relationship with her. After four
days he again made physical relationship
with prosecutrix and brought her to a
dharamshala in Mugalsarai and repeated
the same act. Next day he took her to a
room situated in Lanka, Varanasi; then to
house of his Mama at Maduwadeeh where
he repeated the same offence against her.
At her Mama's place he compelled her to
make physical relationship with his cousin
(Mamas' son) also. When the aforesaid son
of his Mama touched her inappropriately
she raised alarm, thereafter applicant and
son of his mama abused and beated her.
Applicant stated that he has married her
only to physical enjoyment. Thereafter
applicant asked her to go away otherwise
she will be killed by giving her poison.
Applicant called his father, uncle and
brother, who are co-accused, and all of
them abused her and sexually molested her.
They beated her and dropped her in injured
condition on the road at 11 p.m on
5.9.2019. The passers-by helped her and
she called her mother and she took her to
her house. Thereafter she was treated at
home by her mother by home made
medicines. On 6.9.2019 accused persons
came again to her house and threatened the
prosecutrix and her family of life, if she
makes any complaint to the police. On
18.2.2020 again co-accused persons came
to her house and abused her and asked her
family to leave their village and go away.
Thereafter the First Information Report was
lodged on 9.3.2020 with regard to the
incident dated 3.5.2019 by the prosecutrix
herself.

5. Learned counsel for the applicant
has submitted that in the statement of the
prosecutrix recorded under section 164
Cr.P.C., she herself has claimed that she is
aged about 19 years and student of B.Sc.
Part-I.
Therefore
implication
of
the
applicant under section 3⁄4 POCSO Act was
falsely made by the police. She admitted
that she had affair with applicant for the
last one year. Applicant asked her to leave
her house to marry him. She left her house
and went to Delhi and then went to the
house of applicant's aunt where she entered
into physical relationship with applicant
with
consent.
Thereafter
her
family
members came and took her back.
Applicant called her to Kutchery for the
purpose of marriage. Thereafter, applicant
took her to Lucknow and then to
Mugalshari and then they returned to
Varanasi. She was confined by her parents
against her wishes. Thereafter dispute took
place between family members of both and
the prosecutrix parted ways with the
applicant and First Information Report was
lodged.

6. Learned counsel for the applicant
has pointed out to the marriage registration
certificate of the applicant and prosecutrix
which shows that their court marriage was
solemnized on 11.8.2019. The prosecutrix
has lodged First Information Report against
the applicant only to falsely implicate him.
She is wife of applicant and without
8 All. Vivek Kumar Maurya Vs. State of U.P. & Ors.
1249
seeking divorce, she has indulged in filing
of First Information Report on false
allegations
concealing
correct
facts.
Applicant has filed application under
section 9 of the Hindu Marriage Act in the
year 2019 for reinstitution of conjugal
rights against the prosecutrix. He is in jail
since 16.1.2023 and has no criminal
history.

7. Learned counsel for the informant
has submitted that prosecutrix was minor
at the time of incident. Her date of birth is
10.7.2001, the incident initially took place
on 3.5.2019. The seriousness of allegations
and repeated commission of offences of
rape on false promise of marriage does not
entitles the applicant for grant of bail. He
has ruined the life of an innocent and
helpless girl.

8. Learned A.G.A. too has opposed
the prayer of the applicant for grant of
bail but could not dispute the aforesaid
facts.

9. After hearing the submissions of
learned counsel for the parties, it appears
that First Information Report has been
lodged on the basis of false allegations and
incorrect facts. The prosecutrix has not
fully supported the allegations made in the
First Information Report in her statement
recorded under section 164 Cr.P.C. The
allegation
regarding
the
offences
committed by cousin of applicant (Mama's
son) is missing in her statement. New
allegation has been made that the coaccused family members of applicant
compelled her to make signatures on blank
paper. The marriage of the prosecutrix and
applicant was registered. No divorce,
dissolution
of
marriage
or
judicial
separation of couple through court has
taken place.

10. This court finds that large number
of cases are coming in courts wherein girls
and women take undue advantage by
lodging First Information Report on false
allegations after indulging in long physical
relationship with the accused. The time has
come that courts should be very cautious in
considering such bail applications. The law
is heavily biased against males. It is very
easy to make any wild allegations in First
Information Report and implicate anyone
on such allegations as in the present case.

11. First Information Reports are
lodged invariably after due consultation
with expert incorporating all the necessary
ingredients required for making out a clear
case
for
implication
under
different
provisions
of
law.
First
Information
Reports are not being lodged under section
154(1)
Cr.P.C.,
by
directly
giving
information to officer incharge of police
station orally. Section goes as under -

"154. Information in cognizable
cases.

(1) Every information relating to
the commission of a cognizable offence, if
given orally to an officer in charge of a
police station, shall be reduced to writing
by him or under his direction, and be read
Over to the informant; and every such
information, whether given in writing or
reduced to writing as aforesaid, shall be
signed by the person giving it, and the
substance thereof shall be entered in a
book to be kept by such officer in such form
as the State Government may prescribe in
this behalf.

(2) A copy of the information as
recorded under sub- section (1) shall be
given forthwith, free of cost, to the
informant.
1250 INDIAN LAW REPORTS ALLAHABAD SERIES

(3) ....................................
"

12. The lodging of the FIR is being
done invariably by giving a written
application at the police station which is
always fraught with danger of the false
implication like in the present case. Such
applications are drafted by experts in courts
or the Munshi/Head clerk in police station.
The experts are aware of the ingredients of
each and every provisions of penal law.
They incorporate the allegations in such a
way so that accused may not be able to get
even bail easily and early. Just a cursory
glance at allegations made in the First
Information Report is sufficient for the
court to throw the file, without any
application of mind further. The State of
affairs has gained alarming proportion. An
honestly written First Information Report is
very short and is shorn of any unnecessary
and false allegation. This is the test, but it is
seldom realised.

13. The culture of openness being
spread by social media, movies, T.V.
shows,
etc.,
is
being
imitated
by
adolescent/young boys and girls but when
their conduct comes in conflict with Indian
social and family norms and it comes to
protecting the honour of the family of the
girl
and
the
honour
of
girl,
such
maliciously false First Information Reports
are lodged. Such First Information Reports
are also lodged when after living in live-in-
relationship
for
sometime/long
time,
dispute takes place between the boy and
girl on any issue. Nature of partner unfolds
before the other partner with time and then
whey they realize that their relationship
cannot continue for life, trouble starts.
Since girls/women have upper hand when it
comes to protection of law, they succeed
easily in implicating a boy or man in the
case like of the present nature. The
traditional perception of such crimes has
become irrelevant. The effect of social
media,
movies,
etc.,
in
raising
the
awareness level of adolescents and loss of
innocence at comparatively younger age is
clearly
discernible.
The
traditional
presumption of innocence has given way to
an untimely loss of innocence resulting in
unforseen deviant behaviour of adolescents
which the law never contemplated earlier.
Law is dynamic concept and it requires a
re-look in such matters very drastically.

14. This court is finding that genuine
cases of such sexual offences are now
exception. The general rule is of false
implication in cases of sexual offences.
Implication in case of sexual offence is a
sure shot way of punishment before trial.
Bails are normally not granted easily and
early. In cases where implication is made
under POCSO Act situation become worse.
Incarceration of accused in jail for few
months or for years is certain. Training of
judicial officers in their training institute is
still in line with the old concept of bail in
cases of sexual offences. The treating of all
the wild allegation in F.I.R as gospel truth
without keeping eye on the ground realities
is causing lots of injustice.

15. The courts and judges are part of
the society. What is happening in society
should always be kept in mind while
applying law. Wherever an offence takes
place, the expert (mostly lawyer in district
court or munshi / head clerk of police
station) is consulted. He enquires about the
family members of an accused, his
influential friends and well-wishers, local
and also stationed outside. He also enquires
whether the informant side has enmity with
someone or with whom it wants to settle
score. Then the expert implicates all those
8 All. Vivek Kumar Maurya Vs. State of U.P. & Ors.
1251
with whom the informant/complainant has
other grievances, not connected the offence
being complained whatsoever, since the
lodging of complaint / F.I.R against all
enemies in one stroke is encashed as an
opportunity. Their roles are so meticulously
shown in the F.I.R that even the most
experienced of the judges falter. For the
courts at district level, it is quite hazardous
to grant bail in matters of such serious and
meticulously made allegations because of
fear of disciplinary proceedings by the
higher courts. This is one of the reasons
why the district courts refuse to grant even
bail, not to say about granting of acquittal
in most of the cases only because of the
seriousness
of
allegations.
Whether
allegations are prima facie credible or are
proved or not is not very relevant at their
level. They just get rid themselves of such
cases by refusing to grant relief, which is
also part of their training at the very
threshold of joining of their service in their
training institute. This is how the injustice
gets perpetrated because of the role of
expert who drafts the F.I.R / complaint. In
case the honest statement of complainant /
informant is recorded in writing by the
officer-in-charge of the police station soon
after the incident and the role of expert get
excluded in lodging of report, cases of false
implication will come down.

16. Now coming back to the present case
this court finds that main allegation in the
opening part of the First Information Report is
regrading entering of applicant in physical
relationship with prosecutrix on false promise
of marriage. This allegation stands falsified
when in the later part of the FIR the
prosecutrix admitted that the applicant entered
into court marriage with her.

17.

Thereafter
fresh
allegation
levelled by prosecutrix in First Information
Report is that when the applicant took her
to his Mama's house he asked the
prosecutrix
to
enter
into
physical
relationship with his mama's son also. He
stated that he has married her only for
physical enjoyment, but this allegation is
missing in the statement of prosecutrix
recorded as under Section 164 Cr.P.C.

18. The conduct of the prosecutrix of
repeatedly eloping from her parental home
with applicant and going to Delhi, Lucknow,
Mughalsarai and to the places of relatives of
the applicant shows that she was a consenting
party all through. After court marriage the
applicant took her to the places of his
relatives for social acceptance of their
marriage but thereafter something went
wrong between them which led to the
implication of applicant in this case.

19. At all the places where the applicant
took the prosecutrix she admits entering into
physical relationship with the applicant
without any element of coercion before and
after her court marriage, therefore her consent
was not covered under Section 90 of IPC, nor
physical relationship made by applicant with
prosecutrix will come under the definition of
rape as per Section 375 IPC. Here, the
promise of marriage forming basis of
physical relationship between couple was
honoured by applicant, which is admitted in
FIR itself .

20. The allegations of her physical
torture are not supported by any medical
report. In the FIR it is alleged that the
injuries of prosecutrix were treated by her
mother at home. This also proves the
meticulous drafting of FIR by an expert.
There cannot be any evidence of treatment
of home, but to justify implication under
Section 323 IPC such an allegation was
made.
1252 INDIAN LAW REPORTS ALLAHABAD SERIES

21. Keeping in view the nature of the
offence, evidence, complicity of the accused;
submissions of the learned counsel for the
parties noted above; finding force in the
submissions made by the learned counsel for
the applicant; keeping view the uncertainty
regarding conclusion of trial; one sided
investigation by police, ignoring the case of
accused side; applicant being under-trial
having fundamental right to speedy trial;
larger mandate of the Article 21 of the
Constitution of India; considering the dictum
of Apex Court in the recent judgment dated
11.07.2022 of the Apex Court in the case of
Satendra Kumar Antil vs. C.B.I., passed in
S.L.P (Crl.) No. 5191 of 2021; considering 56 times overcrowding in jails over and above
their capacity by the under trials and without
expressing any opinion on the merits of the
case, the Court is of the view that the
applicant has made out a case for bail. The
bail application is allowed

21. Let the applicant be released on bail
on his furnishing a personal bond and two
sureties each in the like amount to the
satisfaction of the court concerned subject to
following conditions. Further, before issuing
the release order, the sureties be verified.

1. The applicant shall not tamper
with
the
prosecution
evidence
by
intimidating/ pressurizing the witnesses,
during the investigation or trial.

2. The applicant shall cooperate
in the trial sincerely without seeking any
adjournment.

3. The applicant shall not indulge
in any criminal activity or commission of
any crime after being released on bail.

4. That 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 from
disclosing such facts to the Court or to
any police officer;

5. The applicant shall file an
undertaking to the effect that he shall not
seek any adjournment on the dates fixed for
evidence and 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 to ensure presence of
the applicant.

6. 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 default of this
condition is deliberate or without sufficient
cause, then it shall be open for the trial
court to treat such default as abuse of
liberty of his bail and proceed against him
in accordance with law.

22. In case of breach of any of the
above conditions, it shall be a ground for
cancellation of bail.
----------
(2023) 8 ILRA 1252
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.07.2023

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Misc. Writ Petition No. 7436 of 2023

Guddu Chauhan ...Petitioner
Versus
State of U.P. & Ors. ...Respondents