Remarking that where a woman has willingly been staying with a man and had a relationship with him, and if the relationship is not working out now, the same cannot be a ground for lodging an FIR for the offence of committing rape repeatedly on the same woman (Section 376(2)(n)), the Supreme Court on Thursday granted pre-arrest bail to the man accused of rape for failing to fulfill promise...
Remarking that where a woman has willingly been staying with a man and had a relationship with him, and if the relationship is not working out now, the same cannot be a ground for lodging an FIR for the offence of committing rape repeatedly on the same woman (Section 376(2)(n)), the Supreme Court on Thursday granted pre-arrest bail to the man accused of rape for failing to fulfill promise to marry in a relationship where even a child was born.
"...the complainant has willingly been staying with the appellant and had the relationship. Therefore, now if the relationship is not working out, the same cannot be a ground for lodging an FIR for the offence under Section 376(2)(n) IPC", the Court's order recorded.
The bench of Justices Hemant Gupta and Vikram Nath was hearing an appeal against the May decision of the Rajasthan High Court dismissing the appellant's anticipatory bail application for the offences under sections 376(2)(n), 377 and 506 IPC. In the impugned order, the High Court had said, "It is an admitted position that petitioner had made the relation with complainant by promising to marry her and due to their relation, one female child was born. So, looking to the gravity of offence, I do not consider it a fit case to enlarge the petitioners on anticipatory bail"
The bench of Justices Gupta and Vikram Nath noted that is the admitted case of the complainant that she was in a relationship with the appellant for a period of four years. Further, it noted that it was admitted by the advocate for the complainant that when the relationship started, she was 21 years of age.
In view of the said fact, the bench observed that the complainant has willingly been staying with the appellant and had the relationship. "Therefore, now if the relationship is not working out, the same cannot be a ground for lodging an FIR for the offence under Section 376(2)(n) IPC", declared the bench.
Consequently, the bench allowed the present appeal and set aside the order of the High Court, ordering that the appellant be released on bail to the satisfaction of the competent authority.
"It is made clear that the observations in the present order are only for the purposes of deciding the pre-arrest bail application. The investigation shall proceed uninfluenced by the observations made in the present order", the bench added.
As recorded in the impugned order of the High Court, the advocate for the petitioner (the appellant before the Supreme Court) submitted that the petitioner has been falsely implicated in this case and that the present complaint was lodged with wrong facts; that the complainant and the petitioner were living in a relationship since 2015; that the complainant was a married lady and there is no false promise of marriage between the parties and that the complainant was in a consensual relationship with the petitioner; that complainant has got a government job so the complainant has lodged the present complaint due to enmity, and so the petitioner be granted anticipatory bail. On the other hand, the Public Prosecutor as well as the advocate for the complainant had opposed the arguments advanced on behalf of the petitioner and submitted that the complainant had taken divorce from her husband and has had a living in relationship with the petitioner because he had promised to marry her. They had further submitted that due to the relation, one female child was born. Contending that custodial interrogation of the petitioner was also required for DNA test, they had prayed that the anticipatory bail application be dismissed
The High Court had proceeded to hold, "I have considered the arguments advanced by learned counsel for the petitioner as well as learned Public Prosecutor and learned counsel for the complainant. It is an admitted position that petitioner had made the relation with complainant by promising to marry her and due to their relation, one female child was born. So, looking to the gravity of offence, I do not consider it a fit case to enlarge the petitioners on anticipatory bail. Hence, the anticipatory bail application is dismissed"
Case Title: ANSAAR MOHAMMAD v. THE STATE OF RAJASTHAN & ANR.
Citation : 2022 LiveLaw (SC) 599
Indian Penal Code 1860 - Section 376(2)(n) - Offence of committing repeated rape on same woman - The complainant has willingly been staying with the appellant and had the relationship-Now if the relationship is not working out, the same cannot be a ground for lodging an FIR for the offence under Section 376(2)(n) IPC- Observations while granting anticipatory bail to accused
Click Here To Read/Download Order