LAVINK TYAGI Vs. STATE OF U. P.

JUDGEMENT

(1.) Vakalatnama filed today by Sri Akhilesh Kumar Singh and Sri Harish K. Yadav on behalf of O.P. No. 2 is taken on record.

(2.) Heard learned counsel for applicant, learned AGA for the State and learned counsel for O.P. No. 2 over this application under section 438 Cr.P.C. by Lavink Tyagi moved for grant of anticipatory bail in Case Crime No. 1290 of 2019, u/s 420, 376, 493, 494, 495, 496 I.P.C., P.S. Kotwali Shamli, District Shamli.

(3.) Learned counsel for applicant argued that accused applicant is innocent. He has been falsely implicated in this very case crime number, whereas the complainant herself is a Police Constable, well educated and law knowing lady. The alleged occurrence is said to be of the year 2014, whereas this report has been lodged in the year 2019. There was no misconception of fact regarding marriage entered in between nor there was any deception nor there was any unreasonable belief about the fact stated by the complainant. It has specifically been stated in the F.I.R. lodged upon her written report as well as in her statement recorded u/s 164 Cr.P.C. that she entered in marriage with applicant Lavink Tyagi and she was blessed with a son. Subsequently she was again blessed with a son. Then after this situation changed, when behaviour of applicant Lavink Tyagi was changed in changed circumstances. She made application before the S.P. concerned and the applicant Lavink Tyagi was put under suspension. Subsequently, this suspension was revoked as complainant could not establish the fact of misconception of fact or marriage under deception made by accused. She was entered with marital status of 'unmarried' in her service record, whereas the accused- applicant was shown with marital status of 'married' in his service record. The complainant, being a police constable and fully acquainted with legal procedure, was expected to go through marital status of applicant given in his service record and she did it. Hence, it was never misconception of fact nor any deception by applicant. It was a bonafide marriage and it never converts the physical relation in definition of rape provided under section 375 I.P.C. and under exception (2) appended to the section. It was with conscience and consensual physical relation with wife and with no deception. There was no reason to believe deception. Hence the department did not lodge report for this offence. Rather this report was subsequently lodged by complainant. The judgment of Apex Court reported in Seema (Smt.) Vs. Ashwani Kumar, 2008 1 SCC 180 makes a provision that marriage must be registered, even if there occurred some marriage. It was not got registered by complainant, who herself is a police constable and well known about law. Hence, it was lack on her part itself. Further judgment of Apex Court reported in Pramod Suryabhan Pawar Vs. State of Maharashtra & another, 2019 LawSuit(SC) 1504 has elaborately discussed 'misconception of fact' and 'reasonable belief', wherein the circumstances making conclusion about misconception of fact and ingredients of deception with circumstances creating a reason to believe has been elaborately discussed by their Lordships. In the present case too, there is no question of any misconception. Learned counsel for applicant pressed para 26 of the judgment reported in Joti Parshad Vs. State of Haryana, 1993 AIR(SC) 1167 wherein 'reason to believe' has been elaborately discussed. Hence, there is no offence punishable u/s 376 I.P.C. For rest of offences, mentioned as above, there is lack of ingredients for those offences. Hence, this anticipatory bail application with prayer for quashing the rejection order passed by learned Sessions Judge, who failed to appreciate the facts and law placed before it. Thereby for allowing application moved by applicant for grant of anticipatory bail.