Ashok G. Nijagannavar, J
1. This petition is filed under Section 438 Cr.P.C. by accused seeking anticipatory bail in the event of his arrest in connection with Crime No.15/2020
of Chamrajanagar Women Police Station, Chamarajanagar, registered for the offence punishable under Sections 376, 417, 420, 506 of IPC pending on
the file of Additional Civil Judge (Sr. Dn.) and CJM Court, Chamarajanagar District.
2. The facts leading to this petition are that on the complaint filed by Smt.Lakshmi D/o.Kendashetty, the police have registered the case. The
allegations are that the complainant came in contact with accused by name Sri.Satish S/o Srinivasa Bommalapura, as he was friend of her brother.
Thereafter, he developed intimacy with her and had sexual intercourse by promising to marry her. After having physical relationship several times he
refused to marry the complainant. Thereby, he committed the alleged offences.
3. On registering the complaint, the police officials are making attempts to arrest the petitioner. The bail petition filed before the sessions Court is
rejected.
4. Heard the learned counsel for the petitioner and learned High Court Government Pleader for respondent-State. Perused the prosecution records
available at this stage.
5. It is the contention of learned counsel for the petitioner that the complainant is a divorcee. The petitioner never intended or never promised to marry
her. The physical relationship had by the petitioner with complainant is only a consensual sex. The ingredients of Sections 506 and 376 of IPC are not
at all attracted. In the event of arrest and detention, the petitioner would be put to great hardship and injustice.
6. Per contra, learned HCGP submits that there are specific allegations that the petitioner promised to marry the complainant and thereby he had
sexual intercourse with the complainant. At this stage, there are no grounds to hold that the petitioner has been falsely implicated in this case. In the
event of granting bail the petitioner is likely to cause threat to the complainant and interfere with the investigation.
7. The complaint allegations disclose that the petitioner had sexual intercourse with the complainant by promising to marry her. The statement of the
complainant recorded under Section 164 Cr.P.C. disclose that the complainant is a divorcee, aged about 27 years and the petitioner had relationship
with her on the pretext of marriage.
8. In the present case, the complaint allegations disclose that they were in a relationship with each other for quite some time and enjoyed each other's
company. It is also clear that they had been living as such for quite some time together. When she came to know that the appellant had married some
other woman, she lodged a complaint. It is not her case that the complainant has forcibly raped her. She had taken a conscious decision after active
application of mind to the things that had happened.
9. It is pertinent to note that the complainant is a educated lady and Government employee and even otherwise is not a gullible woman of feeble
intellect as is evident from her conduct. In fact she has displayed mental maturity. The facts as have emerged are that the couple were infatuated with
each other and wanted to lead marital life.
10. The Court is duty bound when assessing the presence or absence of consent, to satisfy itself that both parties are ad idem on essential features; in
the case in hand that the complainant was lead to believe that her marriage to the appellant would be performed. It is not sufficient that she convinced
herself of the existence of this factual matrix, without the appellant inducing or persuading her to arrive at that conclusion.
11. The complainant knew that her marriage with the appellant was difficult on account of caste considerations. But still then they were in relationship
by meeting regularly and also engaged in sexual intercourse. These circumstances would indicate that there was consensual sex on account of
promise and later the petitioner committed the breach.
12. In a decision reported in (2013) 7 SCC 675 in the case of Deepak Gulati vs. State of Haryana, the Hon'ble Supreme Court has observed in
paragraph No.21 as under:
21. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason,
accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape
and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the
victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of
cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must
examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given
after wholly, understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have
sexual intercourse on account of her love and passion for the accused, and not solely on account of mis-representation made to her by the
accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was
unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape
only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives.
13. The grounds stated in the bail petition and submission of learned counsel for the petitioner goes to prove the apprehension of the petitioner
regarding his arrest and detention. The main objection of the prosecution is that in the event of granting bail, the petitioner is likely to cause threat to
the victim and interfere with the investigation and the said objection can be set right by imposing stringent conditions.
14. In the facts and circumstances of the case, this Court is of the view that there are valid grounds for granting anticipatory bail to the petitioner
subject to certain terms and conditions. Hence, this Court proceeds to pass the following:
ORDER
Criminal petition is allowed.
Consequently, the petitioner is ordered to be released on bail in the event of his arrest in connection with Crime No.15/2020 of Chamrajanagar Women
Police Station, Chamarajanagar, registered for the offence punishable under Sections 376, 417, 420, 506 of IPC pending on the file of Additional Civil
Judge (Sr. Dn.) and CJM Court, Chamarajanagar District, subject to following conditions:
i. The petitioner shall appear before the Investigating Officer within 30 days from the date of receipt of certified copy of this order. On appearance of
petitioner, the Investigating Officer shall interrogate and release him on bail;
ii. The petitioner shall execute personal bond in a sum of Rs.1,00,000/- (Rupees One lakh only) with one surety for the like sum to the satisfaction of
the Investigating Officer;
iii. The petitioner shall co-operate in the investigation, and he shall appear before the Investigating Officer as and when required;
iv. The petitioner shall not threaten or allure the prosecution witnesses; and
v. The petitioner shall mark his attendance in respondent-Chamrajanagar Women Police Station, Chamarajanagar, on 1st of every calendar month until
submission of the final report.
