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Cost Of Air Conditioning Services Provided In Schools Have To Be Borne By Parents: Delhi High Court

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Cost Of Air Conditioning Services Provided In Schools Have To Be Borne By Parents: Delhi High Court

Case title: Manish Goel vs Government of NCT Delhi & ORS.

Case no.: W.P.(C) NO. 6151 OF 2024 & CM APPL. 25614/2024

Dated on: 02nd May 2024

Quorum: Justice Hon’ble The Acting Chief Justice Manmohan and Justice Hon’ble Mr. Justice Manmeet Pritam Singh Arora

FACTS OF THE CASE
The Petitioner, Goel was studying in Class IX in the school. A Public Interest Litigation (PIL) has been flied seeking a direction to respondent No. 3 Directorate of Education (DoE) of GNCTD to ensure that Respondent No.5 Maharaja Agarsain Public School, a Cambridge International School does not realise a sum of Rs.2,000/- per month in lieu of providing the services of air conditioning to the students in the classroom.

CONTENTIONS OF THE APPELLANT
The petitioner’s learned counsel submits that the obligation to provide an air-conditioning facility to the students rests with the school management and this facility should be provided by the school from its own funds and resources. He states that of his levy of his charge on the students is contrary to Rule 154 of Delhi School Education Rules,1973 (DSE Rules). He states that though the availability of the facility is not denied, however the petitioner disputes that he has any liability to bear the said costs.

CONTENTIONS OF THE RESPONDENTS
The respondent counsel submitted that the respondents are examining the issue. He states that complaints have been received and respondents have called for an action taken report. He states that respondents have issued a show cause notice to respondents No.5 school on the complaints received. As apprised by learned counsel for respondents, the DoE is seized of the matter and awaiting the action taken reports.

LEGAL PROVISIONS

Rule 154 of Delhi School Education Rules,1973 (DSE Rules): Ban on the levy of unauthorised Fees or Funds.
Article 226 of Indian Constitution: Any citizen or organisation can move to High court for a Public Interest/cause by filing a petition.

COURT’S ANALYSIS AND JUDGEMENT
The Delhi High court has observed that the cost of air conditioning Services provided to children in schools have to be borne by the parents. Court stated that the air conditioning facility is no different from other charges such as lab and smart class fee levied by the school. The DoE took a stand that the authorities are examining the issue in question and action taken report has been called on the complaint received. The court was informed that Maharaja Agrasain school has been issued a show cause notice on the complaints. It observed that the parents while selecting the school have to be mindful of the facilities and cost of facilities provided to the children and the financial burden for providing facilities cannot be fastened on the school management alone. A presumption that the said charges have been raised after apprising the DoE of the fee and charge schedule. In the view of the admission of the petitioner that the facility of air conditioning is being provided to the students in the classroom, prima facie, there is no irregularity in the charge levied by the school. The court dismissed the petition observing that it was not maintainable. It noted that the fee receipt issued by the school for the session 2023-24 duly records the entry of charges for air conditioner. We are therefore, not inclined to entertain the present PIL and the same dismissed.

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Minor legal heir eligible for compassionate apportionment; but appointment upon attaining majority-Chennai High Court (Madurai Bench).

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Case title: State of Tamil Nadu v. C. Arnold

Case no: W.A(MD)No.479 of 2024 and C.M.P(MD)No.3875 of 2024

Dated on: 01st April 2024

Quorum: Hon’ble Mr. Justice R. Suresh Kumar and Hon’ble Mr. Justice G. Arul Murugan.

Facts of the case:

This Writ Appeal filed, under Clause 15 of Letters Patent, is to set aside the order dated 16.11.2023 made in W.P(MD)No.27247 of 2023 and W.M.P(MD)No.23395 of 2023 seeking Compassionate appointment. The Respondent/Writ Petitioner and father, working as a B.T Assistant in a Government High School, passed away on 03.01.2016, while in service. At the time of his father’s death, the Writ Petitioner was 15 years and 6 months old. On his behalf, his mother made an application dated 02.01.2018, before the Chief Educational Officer, seeking compassionate appointment which was rejected vide Order dated 31.05.2023 on the ground that on the date when the application was made, the respondent/writ petitioner was a minor. That rejection order was challenged before the High Court. The learned Judge, who heard the Writ Petition, took note of the fact that the Rule issued by the Tamil Nadu Government, in the Tamil Nadu Civil Services (Appointment on Compassionate Grounds) Rules, 2023 was notified on 08.03.2023 and at the time of consideration of the application submitted by the respondent/writ petitioner the said Rule was already in force and despite which it was rejected in May 2023 ie., by order, dated 31.05.2023. Hence, it was an erroneous approach on the part of the Appellant employer.

Issues:

Whether it was correct on the part of the Respondent to reject the Compassionate appointment on 31.05.2023 based on G.O.Ms.No.155 Labour and Employment (Ku1) Department, dated 10.12.2014 when Tamil Nadu Civil Services (Appointment on Compassionate Grounds) Rules, 2023 was already notified on 08.03.2023?

Legal provisions:

Writ Appeal filed, under Clause 15 of Letters Patent- lays down that any appeal can be made to the High Court provided it is not a sentence or order passed or made in the exercise of criminal jurisdiction.

Tamil Nadu Civil Services (Appointment on Compassionate Grounds) Rules, 2023- These rules govern the appointment of individuals on compassionate grounds within the Tamil Nadu Civil Services.  

Contentions of the appellant:

At the time of making the application seeking compassionate appointment, the respondent/writ petitioner, was only a minor who has completed only 15 years and 6 months. Therefore, at the time when he attained majority, three years period was over from the date of death of the employee ie., his father. Therefore, beyond three years period, compassionate appointment would not be considered. This rejection was based on Rule, dated 10.12.2014, of G.O.Ms.No.155, Labour and Employment Department and therefore, the said order of rejection ought not to have been interfered by the Writ Court.

Contentions of the respondent:

The Government of Tamil Nadu had framed rules for appointment on compassionate grounds under Tamil Nadu Civil Services (Appointment on Compassionate Grounds) Rules, 2023. The said rule was notified on 08.03.2023 and as per the said Rule 6, there is no minimum age limit for making an application. However, an appointment order could be issued only on completion of 18 years of age. These Rules were prevailing on the date of consideration of the application. Hence, the action of the 3 rd Respondent in relying upon G.O.Ms.No.155 Labour and Employment (Ku1) Department, dated 10.12.2014 was not right.  

Court analysis and judgement: 

Compassionate appointments are made to bail out the families of the employee, whose sudden demise would push the family to penury. Compassionate appointment is made depending upon the education and other qualifications of the dependent of the deceased employee and further no person can be employed in any organization, unless he attains majority ie., above 18 years. In most cases, when such an employee dies, the son or daughter or the dependents other than the spouse would be minor and therefore, it will take some years for them to reach the majority by which period the three years period from the date of death of the employee would be over. Under such circumstances, though the dependent or legal heirs would become eligible to seek for compassionate appointment but by then the period of three years would be over. These difficulties were considered by the State Government, and they bought Rule 6, the same is briefly mentioned herein. On the date of application for appointment. –  the spouse or medically invalidated Government servant or parent of the deceased servant, must have completed fifty years of age; and the son, daughter, brother or sister of the deceased or medically invalidated Government servant must not have completed forty years of age. There shall be no minimum age limit for the applicant on the date of application for appointment, provided appointment shall not be provided unless the applicant completes eighteen years of age.” Hence, under Rule 6, the maximum age has been prescribed, but minimum age limit was not prescribed. It was made clear that the appointment shall not be provided unless the applicant completes eighteen years of age Therefore, the intention of the Rule making authority is clear, that under no circumstances compassionate appointment should be denied to a family for want of attaining the majority of the legal heir/dependent of the deceased employee’s family. If compassionate appointment could not be given immediately, the employer can consider such application and grant/extend the benefit of compassionate appointment to the dependent/legal heir upon his attaining majority. When the intention of the Government was made very clear and as the Rule was effective from 08.03.2023, the Rule should have been applied by the employer. It is due to this reason that the learned Judge interfered with the said order and given direction for extending the benefit of compassionate appointment.  Writ Appeal is accordingly disposed with no costs. The appellants to consider the application, within a period of two months from the date of receipt of a copy of this order. When such consideration is made, if any similarly placed persons are there seniority is to be followed. In the name of following the seniority, the plea of the respondent/writ petitioner cannot be deferred or rejected and if in case there is no vacancy available, where he has sought, then as per the existing procedure, the request of the respondent/writ petitioner be forwarded, where similar vacancy is available and necessary orders to be passed. 


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Decision to fill vacancies from the additional list, is state’s prerogative- Delhi High Court.

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Case title: Dr. Shashi Bhushan v. University of Delhi and Anr.

Case no: W.P.(C) 4949/2024 & CM APPL. 20278/2024

Dated on: 05th April 2024

Quorum: Hon’ble Mr. Justice Tushar Rao Gedela.

Facts of the case:

A Mandamus writ petition under Article 226, of the Indian constitution,1950 has been filed against the Respondents by the Petitioner to appoint him as a Assistant Professor in the Department of Geography at the Respondent’s College. Mr. Chimni, appearing for the petitioner submits that the petitioner had participated in the recruitment process for the post of Assistant Professor of the Department of Geography, Kalindi College, University of Delhi. He says that the petitioner was the first candidate in the waitlist. There was a candidate named Ms Usha Rani who was at Sl. No.1 in the list of selected candidates was offered the appointment and had consequently joined the College at the Geography Department as an Assistant Professor. But, she had resigned from the Respondent’s College and joined another College with the same post. He says that the post of the assistant professor allotted for the scheduled caste was left vacant after the resignation of Ms. Usha Rani. He submits that as the petitioner is the first candidate in the waiting list he had the right to be offered with the appointment to the said vacant post. As, that was not done the following writ petition was filed.

Issues:

Whether a Candidate placed in waiting list be offered appointment upon resignation of the candidate who joined the post and later resigned?

Legal provisions:

Article 226 of the Indian Constitution- Power of High Courts to issue certain writs. 


Contentions of the appellant:

Mr. Chimni the counsel appearing for the petitioner says that the Petitioner had participated in the recruitment process for the Assistant Professor of the Department of Geography, Kalinidi College, University of Delhi. After the selection the petitioner was the first in the candidate list, he submits that a candidate named Ms. Usha Rani had also participated for the same and she was selected and started working in the said department. But, this said candidate resigned from the Respondent’s College subsequently and had gotten a new job with the same post. He says that the post of the Assistant Professor allotted for the scheduled caste was vacant after the resignation of the candidate. He submits that as the petitioner was the first candidate in the waiting list had a right to be offered with the appointment with the said post. Mr. Chimni says that the respondent is under the obligation to reserve the waitlisted panels on the basis of the selection, particularly when the incumbent had just resigned leaving the post vacant. The respondent had addressed that he would fill up the vacant position by selecting from the waitlist. Mr. Chimni says that the same has been violated.  

Contentions of the respondent:

Mr. Mathur states that the university had clearly stated that an offer to the Assistant Professor in the waitlisted candidate category created on the resignation of the candidate who had joined to the said post, and later resigned, it would again have to be advertised for such vacant post following the processes and procedures that are envisioned under the directives of the university. In Sudesh Kumar Goyal vs. State of Haryana and Others reported in (2023) 10 SCC 54, the Supreme Court held that a person cannot seek a right against a vacancy caused due to the resignation of the selected candidate. If a selected candidate joins and the resigns, it creates a fresh vacancy that must be filled through a fresh advertisement and selection process. With this case as precedent in the present case also the petitioner seeks offer from the vacancy on the resignation of the previously selected candidate. Mr. Mathur says that the petitioner has no cause of action.  

Courts analysis and judgement:

According to the Selection committee under clause 7 (4-a) of Ordinance XVIII of the university offers a appointment to the post of Assistant Professor to the waitlisted candidate when there is a vacancy that has been created by the resignation of the candidate who joined the post and later resigned. In such cases, it requires to issue a fresh advertisement following the processes and due procedures of the University. The candidates can be given appointment to the said post if the selected candidate did not join in the given timeframe. Thus, the said post which has fallen vacant due to any reasons cannot be filled from the position in the waitlist. If the Resignation of selected candidate. Death/VRS/Resignation of an employee, Post has fallen vacant due to the incumbent appointment at any other higher position/principal etc. In Subha B. Nair v. State of Kerala A decision on the part of an employer whether to fill up the existing vacancies or not is within its domain. On this limited ground in the absence of discrimination or arbitrariness, a writ court ordinarily would not interfere in such matters. Further, Mandamus cannot be issued to direct the Government or the State to fill up certain or all vacancies. The discretion to fill or not to fill vacancies lies with the Government. When a selected candidate in the final selection list has only a right of consideration, then the candidates who are in wait list would not even have that right, which is subject to rules/notification issued. The petitioner could not establish that he has derived the right from any rule/statute or an ordinance. Hence, the position that arises from all the above decisions is that the duty to fill up vacancies from waiting list can arise only on the basis of a mandatory rule. If no such mandate exists, the decision to fill all the vacancies from the Additional List, is left to the State. However, it needs to be added that State cannot act arbitrarily, and its action can be judicially reviewed. It is clear that the petitioner has no ground to maintain the writ petition. Consequently, the writ petition is dismissed. 


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delhi high court

Delhi High Court upholds EC Commissioner order for compensation to parents of deceased employee by upholding that the deceased person was an “Employee”

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Case title: M/S Madras Trading Co v. Ramjeet @ Ramjeet and Anr

Case no: FAO 119/2017 & CM APPL. 9580/2017, CM APPL. 28069/2018

Dated on: February 13th, 2024

Quorum: Hon’ble Mr. Justice Dharmesh Sharma

Facts of the case:

The appellant herein is a proprietorship concern run by Mr. Sukhpreet Singh, and it is engaged in a small business of sale of air conditioners and spare parts. The respondents were the claimants before the Employee Commissioner and are the legal heirs/parents of the deceased. The claimants filed Statement of Claims before the Commissioner on 27.07.2015, stating that that their deceased son Tata, was employed with the appellant as an AC Mechanic at a monthly wage of Rs. 15,000/-. On 30.04.2014, Sh. Tata was sent by the appellant to do AC repair work wherein the AC compressor burst resulting in fatal injuries and his death at the age of 25 years. An FIR was registered on 01.05.2014 at P.S. Kirti Nagar, on statement of coworker Sh. Sanjay Kumar who along with the deceased had gone to carry out work when the accident occurred. He stated that both of them were employed with the appellant firm and are entitled for compensation of Rs. 20,00,000/- along with penalty of 50% and interest @12% per annum, payable from the date of the incident till realization. The appellant on 09.12.2015 replied by denying the “employer-employee‟ relation and objected for non-enclosure of any documents/proofs to prove such employer- employee relationship. The learned Commissioner framed the following issues “(i) whether the employee – employer relationship exists between the parties? – (ii) Whether accident resulting into death of the deceased is caused out of and during the course of employment and if so, to what amount of death compensation, the dependents of the deceased are entitled to? (iii) Relief, if any? The learned Commissioner decided in favor of the claimants/respondents by holding that the claimant’s evidence was reliable and sufficient in proving the events. However, the respondent firm (appellant herein), failed to prove that there exists no employer- employee relationship. The learned Commissioner held that the claimants are entitled to compensation of Rs. 8,67,640/- along with simple interest @12% per annum w.e.f. 29.07.2015. Hence, this appeal.

Contentions of the appellant:

The learned Commissioner finding is perverse. The “employer-employee‟ relation between the deceased and the appellant firm, was decided solely on the FIR by completely ignoring the contradictions in the testimony of the claimants during cross-examination. An FIR is not a piece of substantive evidence as it requires corroboration through documentary, circumstantial or oral evidence. It is contended that apart from the “Control Test‟, “Integration Test‟ also needs to be considered such as the power to select and dismiss, to pay remuneration, deduct insurance contributions and the “mutual obligations‟ between the employer and the employee as well. The only evidence put forth by the respondents/claimants is a photocopy of the visiting card of the appellant. The testimony of respondent No.1 as well as of Sanjay Kumar was inconsistent. The appellant firm is not engaged in the business of AC repair but is a small proprietorship concern engaged in the sale of Air Conditioners and that they have not employed any persons.  

Contentions of the respondent:

The order passed by the learned Commissioner is well reasoned and has been passed after a thorough consideration of the pleadings of the parties and the materials placed on the record. The grounds taken by the appellant in the present appeal are misconceived and baseless. There is no substantial questions of law involved.

Issues:

Whether the Respondents are entitled to claim compensation under the EC Act?  

Legal provisions:

Compensation Claim under EC Act- Workers can file claims for compensation directly with the Commissioner or through a lawyer.  

Courts analysis and Judgement:

An appeal under Section 30 of the EC Act lies to the High Court from the following orders of a Commissioner ie (a) an order awarding as compensation; (aa) an order awarding interest or penalty (b) an order refusing to allow redemption of a half- monthly payment; (c) an order providing for the distribution of compensation among the dependents of a deceased employee, or disallowing any claim of a person alleging himself to be such dependents; (d) an order allowing or disallowing any claim for the amount of an indemnity under Section 12 (2). It is further provided by way of a proviso that no appeal lies against any order unless a “substantial question of law‟ is involved in the appeal. In the case of North East Karnataka Road Transport Corporation vs. Sujatha, the Supreme Court considered the scope and ambit of Section 30 of the EC Act as to what would constitute “substantial question of law‟, the question such as “whether the employee met with an accident, whether the accident occurred during the course of employment, whether it arose out of an employment, how and in what manner the accident occurred, who was negligent in causing the accident, whether there existed any relationship of employee and employer, what was the age and monthly salary of the employee, how many are the dependants of the deceased employee the extent of disability caused to the employee due to injuries suffered in an accident, whether there was any insurance coverage obtained by the employer to cover the incident, etc. are some of the material issues which arise for the just decision of the Commissioner in a claim petition when an employee suffers any bodily injury or dies during the course of his employment and he/his LRs sue(s) his employer to claim compensation under the Act” The aforementioned questions are essentially the questions of fact and, therefore, to be proved with the aid of evidence. Once they are proved either way, the findings recorded thereon are regarded as the findings of fact.” The learned Commissioner has given a categorical finding that the deceased workman suffered fatal injuries during the course of his employment with the appellant. The reliance by the Commissioner on the contents of the FIR and statement of co-worker cannot be faulted. The proceedings under the EC Act are summary in nature and hence strict adherence to provisions the Indian Evidence Act, 1872 cannot be applied. There are grounds by which it can be presumed that the facts were truthfully revealed regarding the circumstances which resulted in the fatal accident and was correctly incorporated by the Investigating Officer. The claimants are from poor background who are illiterate and ignorant. The Visiting card in possession is sufficient to show the connection of the appellant as an employer with the Respondent’s deceased son. Once the Claimants had laid the basic foundation to the claim, the onus then shifted upon the appellant to disprove the fact that there existed no employer-employee relationship between the parties. The appellant could have even summoned and examined the co-worker Sanjay Kumar to disprove the relationship of employer and employee. The plea of respondent No.1 acknowledging that he did not know the proprietor of the appellant can be taken considering the background of the parents. There is no apparent reason for the Investigating Officer to have fabricated the FIR or for the co-worker Sanjay Kumar to have given a false statement soon after the accident. In view of the foregoing discussion, the impugned order does not suffer from any patent illegality, perversity or incorrect approach adopted in law. The present appeal is dismissed with exemplary costs of Rs. 25,000/- which be paid to the respondents No. 1 and 2 in equal share within one month from today, failing which they shall be entitled to claim the same with interest @ 9% per annum from the date of this order till realization. The pending applications also stand disposed of accordingly.  

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At the stage of considering bail, Court to exercise utmost diligence in evaluating the prima facie allegations against the accused- Delhi High Court

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Case title: Sunny Alias Ravi Kumar v. State of NCT of Delhi.

Case no: Bail Appln. 3580/2023

Dated on: 29th April, 2024

Quorum: Hon’ble Mr. Justice Amit Mahajan.

Facts of the case:

The present application is being filed under Section 439 of the Code of Criminal Procedure, 1973 (CrPC) seeking a grant for regular bail in FIR No.255/2023 on 10.03.2023 for offences under Sections 376/354D/506 the Indian Penal Code, 1860 (IPC). It is alleged that the applicant used to stalk the prosecutrix and claimed that he loved her. It was stated that after the prosecutrix rejected the applicant, the applicant had threatened her. It was declared that on 01.12.2021 the applicant had called the prosecutrix at GTB Nagar metro station, the applicant then had threatened the prosecutrix with suicide due to which the prosecutrix agreed to meet him and have regular conversations with him. In December 2021 the applicant took the prosecutrix to his friends house in Aadarsh Nagar, and forced her to have sexual relations with him for the first time. It was stated the applicant took the prosecutrix to a hotel named Welcome Hotel 5-6 times and forced her to have sexual relations with him. It is alleged that the applicant took the prosecutrix to Haridwar on April,2022 and allegedly married the prosecutrix there. Later on, the prosecutrix found out that the applicant was married and also had two children. It was also stated that the applicant would demand gifts from the prosecutrix leading her to give him nearly Rs. 1.5 lakhs in cash and many other items. On 07.03.2023, the applicant had called the prosecutrix when he was intoxicated and told her to meet him at Aadarsh Nagar Metro Station from there the applicant took her to the Welcome Hotel and forced her to have unnatural sex with him. A medical examination was conducted of the prosecutrix at BJRM hospital Delhi, and her statement was recorded under Section 164 of CrPC. Chargesheet was filed under Section 376/354D/506 of IPC.

Contentions of the prosecution:

It was alleged that the applicant used to stalk the prosecutrix and also claimed that he was in love with her. It is alleged that after the prosecutrix rejected the advances of the applicant, the applicant threatened her. It was stated that on 01.12.2021, the applicant called the prosecutrix at GTB Nagar Metro Station. When the prosecutrix reached to meet him, the applicant threatened her with suicide due to which the prosecutrix agreed to meet him and have regular conversations with him. It was alleged that in December, 2021, the applicant took the prosecutrix to one of his friend’s house in Aadarsh Nagar, and forcefully established sexual relations with the her for the first time. It is alleged that thereafter, the applicant took the prosecutrix to a Hotel, namely, Welcome Hotel, about 5-6 times, and forced her to have sexual relations with him there. It is alleged that the applicant also took the applicant to Haridwar in April, 2022 for three days and allegedly married the prosecutrix there. Later, found out that the applicant was married and had two children. It is alleged that the applicant used to demand gifts from the prosecutrix and she had allegedly given ₹1.5 lakhs in cash, two mobile phones, clothes and two silver rings to the applicant, and also resorted to violent means when she did not pay heed to his demands. on 07.03.2023, the applicant called the prosecutrix when he was intoxicated and forced her to meet him at the Adarsh Nagar Metro Station, the applicant thereafter took the prosecutrix to the Welcome Hotel and forced her to have unnatural sex and beat her when she refused. A medical examination of the prosecutrix was conducted at BJRM Hospital, Delhi and her statement was also recorded under Section 164 of CrPC. The chargesheet was filed under Section 376/354D/506 of IPC. The Public Prosecutor for the State opposes the present bail, saying that there is a high possibility that the applicant could extend the threats to the prosecutrix’s family, and therefore, the bail application to be dismissed.

Contentions of the applicant:

The case that was filed against the applicant is basically to humiliate, torture him and to harass him and he has been in judicial custody since 10.03.2023. It was stated that there are material differences in the FIR and the statement of the prosecutrix recorded under Section 164 of CrPC. It is also contended that as clear from the contents of FIR, the relationship between the applicant and the prosecutrix was consensual in nature and had continued for two years. It was further submitted that the custody of the applicant is not necessary for the investigation, as there are no chances of the applicant to abscond or flee from justice, and that the promise of marriage is completely absurd and untrue. Lastly, he says that there has been an unnecessary delay in the filing of an FIR which increases the suspicion about the allegations made by the prosecutrix.  

Issue:

Whether the Bail application filed by the Applicant is to be allowed?  

Legal provision: 

Section 376 of IPC- Rape the punishment is not for less than 10years, which may extend to life imprisonment and, a fine.

Section 354D of IPC- Stalking any man who repeatedly follows, contacts, or monitors a woman’s communication despite her clear disinterest will amount to imprisonment for three years.

Section 506 of IPC- Criminal intimidation.

Section 164 of CrPC- empowers a magistrate to record a person’s testimony or confession regardless of whether or not he has the jurisdiction.  

Courts analysis and judgement:

The Court, while considering the application for bail, has to consider the nature of the offence, severity of the punishment and prima facie involvement of the accused. The Court is now not required to enter into the detailed analysis of the evidence. The bail is not to determine the guilt but it’s only a safeguard to ensure the accused’s right to liberty, pending trial. The court needs to maintain balance between securing the complainant’s interest and safeguarding the accused’s right. In the present case, the allegations levelled is that the Applicant had established forceful physical relations with the prosecutrix on multiple occasions on the false pretext of marriage. It is not denied that the prosecutrix had known the applicant for a long time. The alleged incident, for the first time, is said to have taken place in the month of December, 2021, however no complaint was made at the time. Thereafter, the prosecutrix continued to have sex on several occasions and even then, no complaint was made by her. The prosecutrix got FIR registered on 10.03.2023, that is, almost after fifteen months from the first alleged incident The Hon’ble Supreme Court Apex Court, in Meharaj Singh (L/Nk.) v. State of U.P. (1994) 5 SCC 188, held that Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story…” The prosecutrix has not mentioned date or time of the alleged incidents. The prosecutrix was a major and hence the consent of the prosecutrix whether vitiated by a misconception of fact arising out of a promise to marry can be established only at the time of trial. The averment of the applicant that there are discrepancies between the FIR and Section 164 CrPC statement is also a matter of trial. At this stage, no evidence has been adduced to show that the applicant had made forceful relation with the prosecutrix or has issued any threats of making viral her photographs or has demanded money, mobile phones from the prosecutrix. It is apparent that the prosecutrix was meeting the applicant for quite some time before filing the complaint and wanted to continue their relationship despite knowing that the applicant is a married man. The decision to continue with the relationship points towards her consent. The actions at this stage, does not suggest passive acquiescence under psychological duress but implies towards her consent which is devoid of any kind of misconception. The Hon’ble Supreme Court in Pramod Suryabhan Pawar v. State of Maharashtra: (2019)SCC 608 has laid out as to when a “promise to marry” is a “false promise” or a “breach of promise”. The Supreme Court held that two propositions must be established to establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry ie the promise of marriage must have been a false, given in bad faith and with no intention of being adhered. The false promise must be of immediate relevance or bear direct nexus to the woman& 39 decision to engage in the sexual act. At the stage of considering bail, it is neither appropriate nor feasible for the court to draw conclusion, as to whether a promise of marriage made to the prosecutrix was false and in bad faith with no intention to adhere. This issue can be determined after an assessment and evaluation of evidence. It is imperative on the part of Court to exercise utmost diligence in evaluating the prima facie allegations on cases to case basis especially when there are contentious issues of consent and intent. Further, it is not in dispute that the antecedents of the applicant are clean. The applicant, is aged about 34 years and is in custody since 10.03.2023 and has a wife and two minor children to take care of. Keeping the applicant in jail will not serve any useful purpose. 
In view of the above, the applicant is directed to be released on bail on furnishing a personal bond for a sum of ₹25,000/- with two sureties of the like amount, subject to the following conditions: a. The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case or tamper with the evidence of the case; b. He shall not contact the complainant other witnesses; c. The applicant shall not travel out of the country without prior permission; d. The applicant shall not tamper with evidence nor indulge in any unlawful act or omission which would prejudice the trial. The applicant to appear before the learned Trial Court as and when directed. The applicant shall not visit the locality where the prosecutrixy resides. The applicant to provide the address where he would be residing and shall not change the address without informing the concerned IO/ SHO; h. The applicant to give his mobile number to the concerned IO/SHO and shall keep his mobile phone active and switched on at all times. In the event of any FIR/ DD entry/ complaint lodged against the applicant, State can seek redressal by filing an application for cancellation of bail. The observations made in the present order are for the purpose of deciding the only the present bail application and should have no bearing on the outcome of the Trial and shall not be taken as an expression of opinion on the merits of the case. The bail application is accordingly, allowed.  

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Judgement reviewed by- Parvathy P.V.   

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