'Prima Facie It Is A Case Of Consent'; Bombay HC Grants Pre-Arrest Bail To SI Accused Of Raping A Lady Constable [Read Judgment]

Division bench of Justice Indrajit Mahanty and Justice AM Badar opined that considering the text messages exchanged between the accused and the complainant in the case, prima facie it was a case of consent.

Case Background

According to the FIR, the complainant is a married lady aged about 31 years. Her husband works in a nationalised bank and she is working as a Police Constable in the police department from 2009. The FIR lodged by her on November 16, 2018 reveals that she became acquainted with the appellant who happens to be Police Sub Inspector attached to the Vashi Police Station.

The accused Amit Shelar, who was promoted as the Police Sub Inspector was helping the First Informant in her studies for getting promotion. The complainant alleged that the appellant had committed rape on her between March 2017 to October 2018, on various occasions in his vehicle, at a Lodge, in a room at Kharghar, at his own house as well as at a hotel.

Complainant alleged that the said incidents happened in Shelar's car as he spiked her drink. Thereafter, she was allegedly molested as Shelar recorded the same act in his phone and threatened that he will make it viral. Lastly, the complainant alleged that on November 13, 2018, the appellant demanded sex from her while they were in his car. Upon refusal, the appellant beat her mercilessly to the point that she suffered a bleeding nose, and her husband questioned her about those injuries and then she disclosed everything to him. Thereafter, report was lodged.

Shelar moved High Court in appeal after Thane Sessions Court rejected his anticipatory bail application. He has been accused for committing offences under Sections 376(2)(c)(j)(n), 328, 323, 504, 506 of the Indian Penal Code as well as under Section 3(12) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act.

Appearing on behalf of the accused cop, Tanvir Nizam submitted that the FIR indicates that whatever was happening between the appellant accused and the complainant was with consent and this fact is reflected from the text messages exchanged between the parties.

He placed transcripts of the recorded conversation between the two parties on record. Nizam argued that the FIR was lodged belatedly after 18 months and that too when the complainant's husband suspected something foul.

APP MM Deshmukh opposed the appeal and contended that the screenshots obtained from complainant's phone incriminates the appellant sub-inspector and the FIR also indicates commission of offence under Section 376 of the Indian Penal Code as well as the SCST Act by a public servant.

Judgment

Court examined the complainant's case and noted-

"She happens to be an adult married woman and having a son. Her age which is 31 years is relevant at this juncture. If these facts stated in her FIR are considered in the light of several text messages exchanged between the parties, prima­facie, we are of the opinion that the case in hand is a case of consent."

Then, the bench highlighted the definition of consent in the present context-

"Consent, as understood in law, is as an act of reason accompanied with deliberations, mind weighing, as in balance, the good and evil on both sides. It means an active will in the mind of a person to permit doing of the act complained of. Will as understood is one's own voluntary act. "

Finally, the Court observed-

"This is a case of a married women of 31 years of age, indulging in sexual relations with her colleague on several occasions at lodge, hotels, rooms and house of the appellant, without disclosing the said fact either to her husband or to the police, though she was having tons of opportunities to do so.

On the contrary, the messages exchanged between the parties indicate that lastly the First Informant/respondent No.2 suspected that her husband is monitoring her mobile and ultimately, on 16th November 2018 the FIR came to be lodged. Subsequently, the medical examination was conducted, but report of medical examination on this aspect is negative."

Thus, the anticipatory bail application filed by Shelar was allowed.

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