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Refund under Section 38(3) of the Delhi Value Added Tax Act,2004 is mandatory: Supreme court while upholding the decision of high court

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CASE TITTLE: COMMISSIONER OF TRADE AND TAXES. V.  FEMC PRATIBHA JOINT VENTURE

CASE NO: Civil Appeal no. 3940 of 2024

ORDER ON: May 01, 2024

QUORUM: J.PAMIDIGHANTAM SRI NARASIM, J.PRASANNA BHALACHANDRA VARALE

FACTS OF THE CASE:

The facts which lead to the present appeal is that the Respondent is a joint venture engaged in the execution of works Contracts for the Delhi Metro Rail Corporation and makes Purchases for this purpose. It claimed refund of excess tax credit  for the 4th quarter of 2015-16 Through revised return filed on 31.03.2017 and For the 1st quarter of 2017-18 through return filed on 29.03.2019, Along with applicable interest under Section 42 of the Act. The Appellant did not pay the refund even until 2022, pursuant to Which the respondent sent a letter dated 09.11.2022 for the Consideration of their refund. The Value Added Tax Officer passed An adjustment order dated 18.11.2022 to adjust the respondent’s Claims for refund against dues under default notices dated 30.03.2020, 23.03.2021, 30.03.2021, and 26.03.2022. The Respondent then filed a writ petition before the Delhi High Court For quashing the adjustment order and the default notices.By judgment dated 21.09.2023, impugned herein, the High Court quashed the adjustment order and directed refund for the 4th quarter of 2015-16 and for the 1st quarter of 2017-18, along with Interest as per Section 42 till the date of realisation. The present appeal is restricted to the issue of quashing the Adjustment order.

 LEGAL ISSUES:

Whether the timeline for refund under Section 38(3) of the Delhi Value Added Tax Act,2004 must be mandatorily followed?

LEGAL PROVISIONS:

Section 38(a)(ii)of the Delhi Value Added Tax Act, 2004- refunds

Any amount Remaining after the application referred to in sub-section (2) of this section shall be at either –

 (a) refunded to the person, –

(ii) within two months after the date on which the return was furnished or Claim for the refund was made, if the tax period for the person claiming refund is a Quarter

CONTENTIONS OF THE APPELANT:

The appellent through their Learned counsel submits that the timelines specified in Section 38(3) are only to ensure that interest is paid if the refund is delayed,Beyond the statutorily prescribed period. However, The timeline cannot be used to denude the power to adjust refund Amounts against outstanding dues under Section 38(2). The Refund can be adjusted as long as outstanding dues exist at the Time when the refund is processed, even if it is beyond the Stipulated timeline.

CONTENSIONS OF THE RESPONDENT:

The respondent through their learned counsel Supported the reasoning of the High Court and has placed reliance On several judgments of the Delhi High Court that affirm this Position of law.therefore, the counsel submits that there is no reason to interfere with the impugned judgment, Which follows the view that has been consistently adopted by the High Court.The finding of the High Court is based on the plain Language of Section 38 of the Act

COURT ANALYSIS AND JUDGEMENT:

The court on hearing both sides, observed that  Sub-section (3) of sec 38, provides The assesse with the option of getting the refund or carrying it Forward to the next tax period as a tax credit. In case of refund, Section 38(3)(a) provides the timeline for refund from the date on which the claim for refund is made. Sub-section (4) Provides that if notice has been issued under Section 58 or Additional information has been sought under Section 59, then the Amount shall be carried forward to the next tax period as tax Credit. Sub-section (7) Provides certain exclusions while calculating the period under Sub-section (3), The language of Section 38(3) is mandatory and the Department must adhere to the timeline stipulated therein to fulfil the object of the provision, which is to ensure that refunds are Processed and issued in a timely manner. In the present case, Section 38(3)(a)(ii) is relevant as both the Refunds in the present case pertain to quarter tax periods. Therefore, as per Section 38(3)(a)(ii), the refund should have been Processed within two months from when the returns were filed, which comes up to 31.05.2017 and 29.05.2019. The default notices are dated 30.03.2020, 23.03.2021, 30.03.2021, and 26.03.2022. It is therefore evident That the default notices were issued after the period within which The refund should have been processed. Sub-section (2) only Permits adjusting amounts towards recovery that are “due under The Act”. By the time when the refund should have been processed As per the provisions of the Act, the dues under the default notices Had not crystallised and the respondent was not liable to pay the Same at the time. Therefore, the appellant-department is not Justified in retaining the refund amount beyond the stipulated Period and then adjusting the refund amount against the amounts Due under default notices that were issued subsequent to the Refund period. Further, the appellent contention that the purpose of the Timeline provided under sub-section (3) is only for calculation of Interest under Section 428 would go against the object And purpose of the provision. Therefore this contention is hence rejected. In view of the above,the court further dismissed the present appeal and affirm The impugned judgment directing the refund of amounts along With interest as provided under Section 42 of the Act

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Medial Board to consider physical emotional well-being of pregnant person- SC

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Case title: A (mother of X) v. State of Maharashtra and Anr

Case no: Civil Appeal No. 5194 of 2024

Dated on: April 29th, 2024

Quorum: Dr Dhananjaya Y Chandrachud, J B Pardiwala, Manoj Misra.

Facts of the case:

This appeal arises from the judgement of a division bench of the High court judicature at Mumbai dated 4th April 2024. It basically denied the minor from terminating her pregnancy. ‘X’ is a minor around 14 years old and has been alleged of a sexual assault in September 2023. ‘X’ revealed this on 20thMarch 2024 by then she was 25 weeks into her pregnancy. It was said that ‘X’ always had irregular periods and could not have assessed her pregnancy earlier. ‘X’ was taken to a hospital on 21 March 2024 for medical examination and then transferred to the JJ Group of Hospitals, Mumbai for termination of her pregnancy. On 28 March 2024 the Medical Board constituted under the Medical Termination of Pregnancy Act 1971 opined that ‘X’ was physically and mentally fit for termination of her pregnancy subject to the permission of the High Court. The Appellant moved to the High Court of Judicature at Bombay under Article 226 of the Constitution seeking the termination of pregnancy of her daughter. On 3rd April 2024, the Medical Board issued a ‘clarificatory’ opinion, without re-examining ‘X’. The report denied the termination of pregnancy on the ground that the gestational age of the foetus was twenty-seven to twenty-eight weeks and that there were no congenital abnormalities in the foetus. By the impugned judgment the High Court dismissed the writ petition on the ground that the pregnancy exceeded the statutory period of twenty-four weeks. In the present appeal, it was observed that the medical report does not contain evaluation of the physical and mental status of the minor, having regard to the background leading up to the pregnancy. The Medical Board was directed to apprise as to whether carrying the pregnancy to the full term would impact the physical and mental well-being of the minor who is barely fourteen years old. The minor was examined by a team of six doctors who after examining ‘X’, opined that the gestational age of the foetus was 29.6 weeks and continuation of pregnancy will negatively impact the physical and mental well-being of ‘X’.

Issues:

Whether carrying of the pregnancy to the full term would impact upon the physical and mental well-being of the minor who is barely 14 years?

Legal provisions:

Section 376 of IPC- Punishment of Rape. 
Sections 4 of the POCSO Act- This section deals with penetrative sexual assault on a child. 
Section 8 of the POCSO Act- Punishment for sexual assault. 
Section 12 of the POCSO Act- Punishment for sexual harassment.

Contentions of the appellant:

The appellant had moved High Court initially to permit them to terminate the pregnancy. Upon denial by the Hight Court, an appeal was preferred under 136 of the Constitution. The medical team reported that while initially the parents were agreeable to the stoppage of the foetal heart on 24 April 2024, on 25 April 2024 the appellant stated that she desires that the pregnancy be taken to term and that she would thereafter give the child in adoption.

Courts analysis and Judgement:

In X v. State (NCT of Delhi), it was recognized that the fear of prosecution among registered medical practitioners is a barrier for pregnant persons to access safe and legal abortions. The purpose of the opinion of the RMP bears the legislative intent of the MTP Act which is to protect the health of a pregnant person and facilitate safe, hygienic, and legal abortion. The right to abortion is to protect right of dignity, autonomy and reproductive choice and this right is guaranteed under Article 21 of the Constitution.   The court in XYZ v. State of Gujarat,11 held that the medical board or the High Court cannot refuse abortion merely on the ground that the gestational age of the pregnancy is above the statutory prescription. The powers vested under the Constitution in the High Court and this Court allow them to enforce fundamental rights guaranteed under Part III of the Constitution. When a person approaches the court for permission to terminate a pregnancy, the court apply their mind to the case and make a decision to protect the physical and mental health of the pregnant person. In Suchita Srivastava v. Chandigarh Admn.14, a three-judge Bench of this Court has held that the right to make reproductive choices is a facet of Article 21 of the Constitution. The right to choose and reproductive freedom is a fundamental right under Article 21 of the Constitution, the court must regard the view of the pregnant person as an important factor while deciding the termination of the pregnancy. In the present case view of ‘X’ and her parents to take the pregnancy to term are in unison.  In the facts and circumstances the following directions are issued: (i) All the expenses in regard to the hospitalization of the minor in respect of her delivery to be borne by the Hospital (ii) In the event that the minor and her parents desire to give the child in adoption, the State Government to take all necessary steps to facilitate this exercise.  The Court concludes as follows: (i) The MTP Act protects the RMP and the medical boards when an opinion is formed in good faith regarding termination of pregnancy; (ii) The medical board opinion must not be restricted to the criteria under Section 3(2-B) of the MTP Act but should consider the physical and emotional well-being of the pregnant person (iii) When issuing a clarificatory opinion the medical board to support with reasons for change in opinion and circumstances; and (iv)The consent of a pregnant person in decisions of reproductive autonomy and termination of pregnancy is paramount. In case there is a difference of opinion between the pregnant person and her guardian, the opinion of the minor or mentally ill pregnant person must be taken into consideration to enable the court to arrive at a conclusion. Accordingly, the appeal is disposed of. 

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In a domestic abuse case, the Supreme Court emphasizes the necessity of legislative reforms to safeguard the rights of all parties involved

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 Case Name: Achin Gupta v. State of Haryana and Ors 

Case No.: Criminal Appeal No. 2379 OF 2024 

Dated: May 3, 2024 

Quorum: Justice J B Pardiwala and Justice Manoj Mirsa 

 

FACTS OF THE CASE: 

The case concerns the First Informant Tanu Gupta, who is a resident of Hisar, the wife of Achin Gupta and the daughter of Harish Manocha. She is a peace-loving and law-abiding woman, and she married Accused No. 1 in New Delhi in accordance with Hindu rites and customs. It was said that the First Informant suffered physical and psychological harm as a result of the Appellant and his family members’ claimed dowry demands. According to the FIR, the First Informant’s family gave the Appellant and his family her “stridhan” at the time of the marriage and spent a significant amount of money on it.  

But not long after they were married, the First Informant became the target of harassment from the Appellant and his family, who claimed she hadn’t fulfilled her responsibilities as a wife and daughter-in-law and also put pressure on her to pay additional money. According to the allegations, the appellant was a habitual drunkard who would forcefully touch the First Informant and mistreat her.  

The Appellant and his family would retain the First Informant’s full income while she worked as an assistant professor, according to her allegations. Every time the First Informant asked for money, the Appellant would physically attack her and tell her that she should ask her family to cover her personal costs.  

The Appellant is also accused of having an extramarital affair with a different woman, and he threatened to harm the First Informant if she revealed his affair to others. After carrying on with the extramarital affair for a considerable amount of time, the appellant filed for divorce in July 2019 on completely false and unfounded allegations.  

The Appellant is accused of disconnecting the water supply at their married residence and removing their young son in the early days of the Covid-19 lockdown. The First Informant was forced to return to her parents after marrying and was left with no other choice in these circumstances.  

The appellant in this case filed a quashing petition with the High Court in an attempt to have the criminal proceedings halted. In exercising its inherent powers under Section 482 of the Criminal Procedure Code, 1973 (also known as the “Cr.P.C.”), the High Court rejected to quash the criminal proceedings in its judgement and order dated April 5, 2022 (also known as the “impugned order”). Because of the aforementioned, the appellant is presenting the current appeal to this court.  

 

 

LEGAL PROVISIONS: 

  • Section 323 of IPC: Punishment for voluntarily causing hurt. If someone intentionally causes harm, with the exception of the situations allowed by section 334, they may be penalised with a fine of up to one thousand rupees, one year’s worth of imprisonment of any kind, or both.  
  • Section 406 of IPC: Punishment for criminal breach of trust. If a person violates the law by intentionally betraying another person, they may be sentenced to three years in prison, a fine, or both. 
  • Section 498A of IPC: Husband or relative of husband of a woman subjecting her to cruelty. Anyone who submits a woman to cruelty while she is her spouse or a family member of her husband faces up to three years in prison as well as a fine. 

 

CONTENTIONS OF THE APPELLANTS: 

The learned counsel for the appellant argues that Both a domestic abuse case and a divorce petition had been filed by the appellant and his family against the First Informant in 2019 and 2020, respectively. The First Informant left her married house more than 11 months ago, and the FIR No. 95 of 2021, dated April 9, 2021, was only filed in response to this when she was served with a summons in the domestic abuse case. Why there has been such a delay has not been explained. 

As per the allegations of the appellants The purpose of filing the FIR was to exact revenge on the appellant, albeit a covert one. For more than a decade, the Appellant and the First Informant were wed. 

The appellant claimed that there were no particular instances of criminal behaviour, only broad, general accusations that formed the basis of the criminal charges. It was a misuse of the court system to file a criminal trial based only on such broad accusations. In an effort to stop the abuse of the legal system in marriage cases, the appellant asked the court for relief.  

The appellant’s specific argument was that the complainant, the second respondent, was uninformed of the events detailed in the First Information Report (FIR).The appellant made it clear that neither the second respondent nor any other parties had filed a civil lawsuit against him. The purpose of this argument was to refute the accuracy of the claims stated in the First Information Report. 

 

CONTENTIONS OF THE RESPONDENTS: 

 The learned counsel representing the respondents argued that After the marriage, the appellant and his family insisted on receiving more money as dowry. The First Informant used to get beat up and have her entire income taken away by them. 

They also contended that the appellant had no choice but to leave the married residence and go back to her parents’ house in Hisar after the divorce petition was filed because she was no longer receiving any maintenance payments and had disconnected essential utilities like the water supply. 

It was also contended that With a different woman, the appellant had an affair. She remained silent and didn’t let the others know about it, only wanting to keep the marriage intact. It is utterly baseless and vexatious that a domestic abuse case has been brought against the First Informant. It was not disclosed to this Court by the appellant that he had withdrawn the divorce action he had taken against the First Informant.  

The learned counsel for the state contended that after receiving the first information report, the police opened a fair investigation. After the inquiry was finished, the cases against four of the five suspects were dropped. Nevertheless, considering the claims made, the investigating officer felt it was appropriate to submit a charge sheet against the appellant. 

 

COURT’S ANALYSIS AND JUDGMENT: 

The appellant filed for divorce in July 2019 on the grounds of cruelty, and the court noted this after receiving notice of it. Due to the appellant’s difficulty caring for his child and making the lengthy trip to Hisar on the dates set by the court, the divorce petition was dropped. Under the terms of the Protection of Women from Domestic Violence Act, 2005, the appellant’s mother was required to file a domestic violence complaint against the First Informant in October 2020.  

The court further noted that the First Informant’s claims are quite broad, general, and imprecise, and they do not specifically mention any instances of illegal behaviour, based on a plain reading of the FIR and the chargesheet documents.  

The court observed that it was also important to remember that no precise time or date of the alleged incident or offence has been included in the FIR. Even the police decided it was appropriate to end the investigation into the other appellant family members. Consequently, we believe that the First Information Report (FIR) filed by Respondent No. 2 was only a response to the divorce petition and the domestic abuse case. 

The court also noted that The field of investigating an offence was solely reserved for Police Officers, who had unrestricted authority in that regard as long as their investigative powers regarding cognizable offences were lawfully used in strict accordance with Chapter XII of the Cr.P.C. In carrying out its duties under Section 482 of the Cr.P.C., the court does not serve as an appellate or revisional court.  

The inherent jurisdiction under the Section, while broad, should only be used when it is warranted by the strict criteria outlined in the Section itself. It should be used rarely, cautiously, and with prudence. It was to be used ex debito justitiae to carry out substantial and true justice, the administration of which is the exclusive function of courts. The court’s authority is intended to further justice, and should any attempt be made to misuse it in order to bring about injustice, the court has the right to stop it. Allowing any activity to occur that would obstruct the advancement of justice and lead to injustice would be an abuse of the legal system.  

In order to prevent both of the new provisions from going into effect, the court asked the Legislature to investigate the above-highlighted issue, taking into account the practical realities, and consider making the required adjustments in Sections 85 and 86 of the Bharatiya Nyaya Sanhita, 2023. The appeal was so granted as a result of its success. It is now decided to set aside the contested decision and order from the High Court.  

In order for the Government of India to present this ruling to the Honourable Ministers of Law and Justice and Home, the court instructed the Registry to deliver one copy of each decision to the Union Law Secretary and Union Home Secretary.  

 

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Supreme Court: The legality and validity of the Bangalore University’s advertisement is beyond doubt and held the decision to the university to fill vacancies of posts

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CASE TITLE:CHAITRA NAGAMMANAVAR VsSTATE OF KARNATAKA & ORS.

CASE NO: CIVIL APPEAL NOS. 6772-6773 OF 2023

ORDER ON: May 2nd, 2024

QUORUM: Justice. PAMIDIGHANTAM SRI NARASIMHA, Justice. ARAVIND KUMAR

FACTS OF THE CASE

The Facts, leading to the present case are that On 21.03.2018 Banglore University, constituted under the Karnataka State Universities Act, 2000, issued an advertisement for filling up vacancies to posts reserved for Scheduled castes and scheduled tribes, The advertisement provides, The ‘Mode of Selection’, to be as per ‘2001 Rules’, Therefore, Rule 6 of the 2001 Rules provides for a preference In Favor of candidates between the age bracket of 29 and 40 Years. however, instead of the prescribed rules, it followed Its own procedure and proceeded to appoint the appellant on the Basis of merit. Respondent no. 7 naturally challenged the Appointment of the appellant by Writ Petition No. 4923/2020 before the High Court of Karnataka. The Ld. Single Judge of the High Court, by a judgment dated 16.01.2021, allowed the writ petition and set aside the Appellant’s selection and appointment, on the ground that the appointment of the appellant, who did not fall in the age bracket Of 29-40years, was illegal. Consequently, Respondent No. 7, Who is the preferential candidate, was directed to be appointed. The appellant and the university filed their respective writ Appeals before the Division Bench of the High Court, however, the said court upheld the decision of the single judge of HC, Thus, the present Civil Appeal by the appellant, who was the Originally appointed candidate

CONTENTIONS Of APPELLANT

Mr. Shailesh Madiyal, learned Senior Counsel appearing for the appellant argues that the advertisement of the university, declaring that the ‘Mode of Selection’ shall be under the 2001 Rules, is a mistake. He calls it a mistake because the university shall be governed by the Universities Act and the Statutes made thereunder and not the 2001 Rules, particularly when these Rules are made under the Karnataka State Civil Services Act, 1978.8 The university is an autonomous institution and can never be bound, much less governed, by rules intended to regulate State Civil Services, is his argument.

Mr. Anand Sanjay M. Nuli, learned Senior Counsel appearing for the university, has taken the same stand as the appellant. He submitted that Sec. 78 of the Universities Act gives an overriding effect to the provisions of this law over other laws. He has drawn attention to Sec. 53 of the Universities Act as the guiding principle for appointments to the post of ‘teachers’ in the university, which includes assistant professors, readers, and professors.

CONTENTIONS OF RESPONDENT

Mr. Gagan Gupta learned Senior Counsel appearing for respondent no. 7, submits that the mandate under Sec. 4(1A) on the Government to specify the method and manner of selection by the issuance of a notification stood fulfilled when the university itself advertised by notifying that the ‘Mode of Selection’ shall be as per the 2001 Rules. He also submitted that this is the natural consequence of the purpose and object of introducing sub-Section (1A), which was to enable the universities to follow the 2001 Rules. He also relied on certain letters written by the State government calling upon the university to follow the mandate of the 2001 Rules.

LEGAL PROVISIONS

  • 4(1A) of the Reservation Act, 1990–reservations of appointment and posts
  • 54 of the Universities Act,- appointments to several posts in a university shall be laid down by the Government.

LEGAL ISSUES

  • whether the advertisement issued by the university intending to follow the 2001 Rules made under the Civil Services Act suffers from any illegality?

COURT ANALYSIS AND JUDGEMENT

The court considered the view that, to extend the provision of the 2001 Rules to universities, Sec. 4(1A) of the Reservation Act, 1990 was introduced. The intent behind the amendment is to vest the power of specifying the method, procedure, and time for identifying, filling, and completing the same to the State and this is also evident from Sec. 54 of the Universities Act, which suggests that appointments to several posts in a university shall be laid down by the Government.  The court also satisfied that, There have been letters by the Government demanding compliance with the 2001 Rules while filling up the vacancies for posts for SCs/STs and OBCs,  Even before the advertisement was issued, there was a letter addressing the Principal Secretary, Department of Higher Education, State of Karnataka, to the university instructing the latter to fill up backlog teaching posts as per the 2001 Rules and the guidelines prescribed by the university. The court observed that at this very stage, similar letters were addressed by the State Government to the university, directing that the procedure contemplated under the 2001 Rules must be followed for filling up the vacancies of SC/ST and other backward classes in the university. Considering these letters, the court opined that issue relating to the legality and validity of the university’s advertisement is beyond doubt. Therefore the court also rejected the submission made by the appellant through their counsel Mr. Shailesh Madiyal, for the reasons stated above, the decision given by  Ld. Single Judge of the High Court and division Bench is correct, and  Having considered the matter in detail the court is of the view that The appeals must, therefore, fail, and hereby dismissed the same.

Later after the appeal was dismissed the court realised that the appellant who was appointed in contravention of Rule 6 of the 2001 Rules, had continued in office during the subsistence of the writ proceeding and till date without any interruption. Therefore the court held that the university must also address the concern of the appellant. In order to obviate the injustice caused to the appellant this is an extraordinary situation for exercising such discretion therefore, the court left the decision to the university on this issue. For the reasons stated above, the Civil Appeal against the judgment passed by the High Court of Karnataka at Bengaluru is dismissed, subject to the observations made in the previous paragraph.

 

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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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