Rajnesh Oswal, J.:— The petitioner is facing trial in challan, titled, Union Territory of J&K v. Manoj Kumar, arising out of FIR bearing No. 14/2018 dated 16.02.2018 for commission of offence under section 376 RPC pending before the 3 Additional Sessions Judge, Jammu (hereinafter referred to as trial court) and through the medium of this application, the petitioner is seeking bail.

2. It is stated that the petitioner has been implicated as an accused in a false and frivolous case instituted by the complainant on the basis of a concocted and manipulated story and after lodging of the FIR pursuant to the directions of the Magistrate under section 156(3) Cr.P.C., the petitioner was arrested on 07.05.2018. It is further stated that till date only two prosecution witnesses have been examined and the petitioner had applied for grant of bail before the trial court but the same was rejected by the learned trial court vide order dated 07.08.2020. It is also stated that the petitioner came into contact with the prosecutrix/complainant through Face book some 9/10 years ago when the petitioner was 17 years old and the prosecutrix was 25 years and in this short span of time both of them fell in love each with each other and decided to marry. But since the petitioner was younger in age vis a vis prosecutrix, so the parents of the prosecutrix did not agree for a marriage due to non-compatibility of the match and also the prosecutrix told the petitioner that even her parents were not agreeing because of age difference and the petitioner being a jobless student. Thereafter, upon the pressurizing tactics of the prosecutrix, the petitioner came to Jammu and got their marriage agreement registered with Notary Public, Jammu, in which the prosecutrix stated that she has decided to contract marriage with the petitioner out of her free will and without any pressure. It is further stated that after the execution of marriage agreement, the prosecutrix told the petitioner that as he is jobless and a student so in order to secure her future, he should transfer his parents' house in her name and then she will perform the rites and rituals as per customs, as such, the petitioner sought some time from the prosecutrix in order to persuade his parents but his parents did not agree, as such, the petitioner told the same to the prosecutrix and then the prosecutrix filed a false complaint and pursuant to that, FIR (supra) was registered against him. It is further stated that the bare reading of the statement of the complainant/prosecutrix recorded under section 164-A Cr.P.C, the offence of rape is not made out.

3. Objections stand filed by the respondent, in which it is stated that on 16.12.2018 an application of the complainant with endorsement order of the learned 1 Additional Munsiff (Forest) Court, Jammu was received in the Police Station. It was stated that 7/8 years ago the complainant started using Face book and the petitioner sent her a friend request and she accepted the same. They had a chat with each other for about six months. The complainant was doing nursing course at Satwari and the petitioner came to Jammu and requested the complainant to meet him at Vikram Chowk, Jammu. Then the petitioner took the petitioner at Bagha-Bahu, Jammu and 2/3 times they also went to see movie also. They used to talk daily for hours together. Later on, the petitioner started saying that he will marry with the complainant and the petitioner told the same in her house. In April, 2015, the petitioner met the elder sister of the complainant and she told him that in case he wants to solemnize marriage with the complainant, he should bring his parents and thereafter the petitioner did not call the complainant for one month and after one month, the petitioner called the sister of the complainant that his parents are not agreeing for the marriage due to difference of caste. The petitioner told the complainant that her sister was telling lie to her and he will come and meet the complainant at Jammu. In March, 2016, the petitioner came to Jammu and assured the complainant and the same day, the petitioner started touching her breast and private parts by saying that they are going to solemnize marriage so they should have sex but the complainant refused the same till the marriage was solemnized. The petitioner took the complainant away in the corner at Bagh-e-Bahu and put his fingers in her private parts as a result of which she started crying and he pacified the complainant by saying that he will solemnize the marriage with her and made promise for marriage again. The complainant got annoyed with the petitioner and did not talk with him. The complainant went to her cousin house at Kulu, Himchal Pradesh and started doing computer course there and the petitioner again started calling the complainant and assured her that the marriage would be solemnized within four five months and the complainant also talked to the mother of the petitioner. It is further stated that in the month of July, 2016, the petitioner taking the benefit of the privacy, committed forcible rape upon the complainant and also assured her that now they are husband and wife and thereafter the petitioner come at Kulu 12/13 times and had sex with the complainant about 7/8 times on the promise of marriage. Later on, the complainant came to Jammu on 31.05.2017 for the purpose of solemnization of marriage but the petitioner did not agree and thereafter on the persuasion of the complainant, the petitioner came to Jammu on 01.06.2017 and got the marriage agreement executed at Jammu. After the execution of the marriage, the petitioner refused to go to Arya Samaj Mandir by saying that he wants to purchase gifts for her and further stated that he will go to Arya Samaj Mandir tomorrow. The petitioner took the complainant and her sister to Prade Jammu where they had lunch also in a restaurant and then after sending the sister of the complainant, took the complainant to Bagh-e-Bahu, Jammu and the petitioner took the complainant in isolation and committed the rape. Thereafter, the petitioner took the complainant to Vikram Chowk, Jammu and they sat in a Superfast Bus from Jammu to Kathua and the petitioner promised to come next day for solemnizing marriage in the Arya Samaj Mandir but he did not come back. Thereafter, the petitioner told the complainant that he was going for training at Jaipur, Rajasthan and also told her to go to Kulu, where they will solemnize the marriage at any time. The petitioner promised to marry the complainant within two months but he did not come. Later on, the complainant came to know that the petitioner was involved with some other girl, namely, Dipika.

4. The said complaint was forwarded by the learned Forest Magistrate, Jammu under section 156(3) Cr.PC, pursuant to which FIR (supra) under section 376 RPC was registered against the petitioner and subsequently, after the completion of the investigation, challan was filed in the court of City Judge, Jammu on 28.07.2018 that was subsequently, committed to the learned 3 Additional Sessions Judge, Jammu.

5. Mr. Vikas Sharma, learned counsel for the petitioner has vehemently argued that the whole prosecution story is concocted and no offence under section 376 RPC is made out. He further laid much stress that the prosecutrix was much older than the petitioner and that the FIR was lodged so as to force the petitioner to solemnize marriage with the complainant.

6. Learned counsel appearing for the respondent has vehemently argued that offence under section 376 RPC is made out and this Court cannot appreciate the evidence at this stage and further that the petitioner being outsider may jump over the bail.

7. Heard and perused the record.

8. From the record, it is evident that the challan for commission of offence under section 376 RPC was filed against the petitioner. However, learned trial court has framed the charges for commission of offences under section 376 and 417 RPC.

9. From the record, it is evident that the statement of two witnesses have been recorded and the challan is pending for more than three years and also the petitioner has been in custody since May, 2018. The allegations levelled in the charges framed against the petitioner are that the petitioner on the pretext of marriage had made sexual relations with the prosecutrix and also raped her.

10. The learned trial court has rejected the bail application in view of the bar contained in section 497-C of the J and K Cr.P.C. Section 497-C of the J and K Cr.P.C. prohibits the grant of bail if after the perusal of the case diary or report under section 173 Cr.P.C. the court is of the opinion that there are reasonable grounds that the accusations against the accused are true. The section under reference does not bar the court from looking into the evidence brought on record after the commencement of trial otherwise it would be a travesty of justice if the accused has to remain in jail till the conclusion of trial even when the prosecution has failed to bring on record any incriminating evidence against the accused and the accused has to wait for his release the final verdict of the court. Needless to say that the court while deciding bail application is not required to appreciate the evidence.

11. In Pramod Suryabhan Pawar v. State of Maharashtra, (2019) 9 SCC 608, the Apex court quashed the FIR registered for commission of offence of rape on pretext of false promise of marriage reported in (2019) 3 SCC (Cri) 903 and the Apex court held as under:

“11. The primary contention advanced by the complainant is that the appellant engaged in sexual relations with her on the false promise of marrying her, and therefore her “consent”, being premised on a “misconception of fact” (the promise to marry), stands vitiated.

12. This Court has repeatedly held that consent with respect to Section 375 IPC involves an active understanding of the circumstances, actions and consequences of the proposed act. An individual who makes a reasoned choice to act after evaluating various alternative actions (or inaction) as well as the various possible consequences flowing from such action or inaction, consents to such action. In Dhruvaram Sonar [Dhruvaram Murlidhar Sonar v. State of Maharashtra, (2019) 18 SCC 191 : 2018 SCC OnLine SC 3100] which was a case involving the invoking of the jurisdiction under Section 482, this Court observed : (SCC para 15)

“15. … An inference as to consent can be drawn if only based on evidence or probabilities of the case. “Consent” is also stated to be an act of reason coupled with deliberation. It denotes an active will in mind of a person to permit the doing of the act complained of.”

This understanding was also emphasised in the decision of this Court in Kaini Rajan v. State of Kerala [Kaini Rajan v. State of Kerala, (2013) 9 SCC 113 : (2013) 3 SCC (Cri) 858] : (SCC p. 118, para 12)

“12. … “Consent”, for the purpose of Section 375, requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance of the moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances.”

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.”

12. Further in X v. State of Telangana, reported in (2018) 16 SCC 511, the Hon'ble Apex court refused to quash the order of grant of bail to the accused in which allegations of rape on the pretext of false promise of marriage were levelled against the accused. Hon'ble effects court observed as under:

“16. Having considered the rival submissions, we are not at this stage, inclined to delve into the merits of the allegations at any length in order to preclude the possibility of our observations influencing the course of the trial. Since the appeal has been argued at some length before the Court, we are indicating our reasons, though with a clarification—by way of abundant caution—that our observations are confined to the issues which arise here in an appeal against the order of the High Court granting bail under Section 439. Having heard the learned counsel, we have arrived at the conclusion that the exercise of discretion by the High Court in the present case cannot be faulted. We must, at the outset, note that the case of the complainant is that the accused had (as she described in the complaint) “been making false promises for getting married to her”. This has been reiterated in the charge-sheet which has been submitted on 6-3-2018. At this stage, all that we need to note is that even going by the case of the complainant, there was intimate contact between the complainant and the accused over a period of nearly six months between July 2015 and January 2016. Even according to the complainant, she visited the accused on two occasions in Hyderabad and stayed with him. The tickets for her travel from Mumbai were borne by the accused. The complaint was filed nearly a year thereafter in January 2017. This is a relevant circumstance which has been taken note of by the High Court. These circumstances do bear upon the defence that there was a consensual relationship between the complainant and the accused. Both in her complaint as well as in the charge-sheet, it has been alleged that the accused had falsely promised to marry the complainant. However, in the course of the rejoinder, the complainant has substantially diluted this stand, alleging that:

“That the petitioner has at every stage—including in arguments before this Hon'ble Court—maintained that the promise to marry was merely a complete elucidation of the facts and circumstances of the case.”

During the course of the hearing, the learned counsel appearing on behalf of the complainant submitted that this is not a case involving a breach of a promise to marry.”

13. Now coming to the instant case, the allegations against the petitioner are that he had sex with the complainant on false promise of marriage. It is evident from the record that marriage agreement was executed by the accused on 01-06-2017 even after he had sex with the prosecutrix 7-8 times. Further in her complaint it has been mentioned that on 01.06.2017 the petitioner took the prosecutrix to Bagh-e-Bahu at an isolated place in open and raped her whereas in her deposition before the Court, the prosecutrix stated that they went to Bagh-e-Bahu and the petitioner told her that they would have sex, as agreement of marriage has been executed today and they had sex. From the record, it is evident that the petitioner had repeated sexual intercourse with the complainant over the span of time from 2016 to 2017 and it was only in the year, 2018, the complainant lodged the FIR when the marriage between the petitioner and the complainant was not solemnized. This Court has restrained itself from appreciating the evidence as this Court has not to record a finding with regard to the guilt or innocence of the accused as the same is required to be done at the time of appreciation of evidence while passing the final judgment. At this stage, this court is unable to form a definite opinion that the accusations against the petition are true, so the bar contained in Section 497-C Cr.P.C. would not apply.

14. More so, the statement of the prosecutrix has been recorded and the petitioner has been in custody for more than 03 years and the conclusion of the trial is not possible in near future.

15. Taking into consideration the above facts and circumstances, the petitioner deserves to be enlarged on bail. So far as the contention of learned counsel for the respondent that the petitioner is an outsider and he may jump over the bail, that can be taken care of by directing the applicant/petitioner to produce two local solvent sureties for securing his presence during trial and also he shall inform the concerned Station House Officer (SHO) about his location on the very first day of every month.

16. For all what has been discussed above, this application is allowed. The applicant is enlarged on bail on the following conditions:

(i) subject to furnishing of two local solvent sureties to the tune of Rs. 50,000/- each to the satisfaction of the trial court and the personal bond of the like amount.

(ii) he shall furnish an undertaking that he shall intimate their whereabouts to the concerned SHO on the first day of every month.

(iii) he shall not contact with any of the prosecution witnesses during the trial and shall regularly appear before the trial court.

17. In the event of violation of any of the conditions mentioned above, the respondent can lay a motion for cancellation of bail of the applicant before the trial court. Needless to say that any observation made her is only for the purpose of deciding bail application and shall have no bearing upon the merits of the case.

18. Disposed of accordingly.