Prima Facie Appears To Be 'Consensual' : Gujarat High Court Grants Bail In Case Under Section 377 IPC

The Gujarat High Court on Thursday (October 3) granted bail to a 22-year-old man booked in a Section 377 IPC FIR in a complaint moved by a 64-year-old man, while prima facie observing that the relationship appeared to be consensual. 

The order was passed in the man's plea seeking regular bail in an FIR registered under IPC Sections 377 (Unnatural Offences), 386 (Extortion by putting a person in fear of death or grievous hurt) and Section 389 (Putting person in fear of accusation of offence, in order to commit extortion). 

Noting the offence in question, a single judge bench of Justice Hasmukh D Suthar referred to the Supreme Court's 2018 decision in Navtej Singh Johar v. Union of India which decriminalised consensual same sex relationships and said, "Prima facie, it appears that a consensual relationship was going on between the applicant and the complainant. The present applicant is only 22 years old and has no past antecedents. So far as Section 377 of the IPC is concerned, it was decriminalized by the Hon'ble Apex Court in the case of Navtej Singh Johar vs. Union of India, reported in 2018 (10) SCC 1". 

The high court further noted that the investigation in the case is over, charge-sheet has been filed, there is no chance of the applicant being a flight risk and there was no possibility of tampering the evidence.

The high court said that while granting bail, the court has to consider certain factors including the involvement of the accused in the alleged offence, the jurisdiction to grant bail, nature of accusation, severity of the punishment, reasonable apprehension of tampering with the witnesses among others. 

It thereafter said, "In the facts and circumstances of the case and considering the nature of the allegations made against the applicant in the FIR, without discussing the evidence in detail, prima facie, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail. Hence, the present application is allowed".

Granting bail to the applicant subject to certain conditions the court further said, "The authorities will release the applicant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter". 

With respect to allegations under IPC Section 386, the high court said that there is no evidence or material to suggest that the present applicant caused any grievous injury, put the complainant in fear of death, or extorted money.

The high court further made it clear that the trial court shall not be influenced by the high court's observations in its bail order which are of a "preliminary nature" with respect to the evidence "at this stage". 

Background

The plea claims that the applicant had merely helped the complainant as a friend during financial difficulties to the tune of Rs 10 Lakh and now that he asked for a repayment, the complainant is retaliating out of anger, upset that someone they considered a close friend is asking for their money back. The plea further states that there is a significant age difference between the applicant and the complainant which clearly suggests that the complainant being much older and presumably more experienced is in a better position to "manipulate, manhandle and influence the applicant, who is half his age".

The plea alleges that the alleged act happened for the first time when the applicant was minor and was "not of the age to give consent" at the time hence, the complainant's actions are in violation of the POCSO Act. It claims that given the applicant's age today-22 years–it is evident that the complainant being "significantly" older held a position where he could potentially influence the tender mind of the applicant. 

Case Title: X vs State of Gujarat

LL Citation: 2024 LiveLaw (Guj) 146

Counsel for applicant: Advocates Sneh Purohit and Vishal Davda 

Counsel for State: APP Asmita Patel

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