Even If Prosecutrix Is Quite Friendly With A Man, He Doesn't Get License To Establish Sexual Relations Without Her Consent: J&K High Court

Importantly, the Bench of Justice Sanjay Dhar also observed that cases relating to grant of bail in offence of rape are required to be approached differently as releasing of the accused on bail in such cases by adopting a liberal approach would be against the interests of the society.

Facts of the Case

The prosecutrix lodged a complaint with Judicial Magistrate, Hiranagar alleging that while she was studying in 10th class, she developed acquaintance with the petitioner-accused, whereafter, he developed illicit relations with her against her will and also promised that he will marry her at an appropriate time.

It was further averred in the complaint that the petitioner-accused had sexual relation with the complainant and he would threaten her with dire consequences in case she disclosed anything about this relationship to anybody.

The aforesaid complaint was forwarded to in charge Police Station, Hiranagar, accordingly, F.I.R No. 04/2020 for offence under Section 376 IPC came to be registered.

After investigation of the case, the police found that the offence under Sections 376 IPC was made out against the accused and, accordingly, the challan was produced before the competent Court. The petitioner approached the trial Court for grant of bail but the same was dismissed vide order dated 12^th October 2020 passed.

Arguments put forth

The petitioner sought bail on the grounds that the prosecutrix had willfully and intentionally, out of her free consent, entered into a relationship with petitioner/accused, as such, it couldn't be stated that sexual relationship between the petitioner and the prosecutrix had taken place on account of any misconception.

In the reply, the State contended that during the investigation of the case, it was found that there was a deep-rooted friendship between the petitioner and the prosecutrix, which lasted for about 02 years and that the petitioner had promised to marry her.

It was further averred that on 22^nd October 2019, the petitioner had picked up the prosecutrix in his car and committed rape upon her.

Thus, according to the prosecution, offence under Section 376 IPC stood established against the petitioner-accused and he was arrested on 15^th January 2020. It was contended that the allegations against the petitioner are serious in nature and as such, he was not entitled to bail.

Court's Order

Considering the allegations, Challan and facts of the case, the Court came to the conclusion that prima-facie, the case of the prosecutrix against the petitioner is genuine as the prosecutrix had not only in her complaint but also in her statement recorded under Section 164-A Cr.PC repeatedly stated that the petitioner had sexual intercourse with her against her consent.

Importantly, in response to the Petitioner's argument that that the prosecutrix, due to her love and passion for the petitioner had developed sexual relationship with him since the time she was studying in 10^th class, the Court said,

"The prosecutrix had barely attained the age of majority a few months prior to the lodging of the F.I.R…the past sexual relationship of the prosecutrix with the petitioner, if any, would constitute offence of rape, irrespective of the consent, the prosecutrix being minor at the relevant time. Thus, the fact that the prosecutrix was not matured enough would certainly have an adverse impact on the case of the petitioner pertaining to grant of bail."

Taking into account the apprehension that in case the petitioner is enlarged on bail, he may threaten the prosecutrix, the Court denied to grant him Bail at the instant stage, "when the statement of the prosecutrix is yet to be recorded, may thwart the course of justice."

Case title - Aman Sagotra v. UT of J&K [Bail App No. 211/2020 CrlM No. 1277 & 1699 of 2020]

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