"If Woman States She Did Not Consent, Court Shall Presume That She Did Not Consent": Delhi Court Rejects Anticipatory Bail Of ET Now Anchor Accused Of Rape

A Delhi Court has rejected the anticipatory bail application filed by Mumbai based ET Now Anchor, Varun Hiremath accused of raping a 22 year old woman in National Capital in connection with the FIR lodged in Chanakyapuri Police Station.

Additional Sessions Judge Sanjay Khanagwal while rejecting the bail application observed thus:

"So far as the question about consent or no consent, if the woman states in her evidence before court that she did not consent, the court shall presume that she did not consent."

About the FIR

Varun Hiremath was anticipating arrest in connection with the FIR filed by a 22 year old, Pune based woman in the Chanakyapuri Police Station, New Delhi under sec. 376 (punishment for rape), 342 (punishment for wrongful confinement) and 509 (insulting modesty of a woman) of the Indian Penal Code. The Delhi Police had issued a lookout circular against him, barring him from leaving the country.

According to the said FIR, the woman had alleged that Varun Hiremath, while visiting Pune had met her on "Tinder", a geosocial networking and online dating platform, and had allegedly developed sexual relationship with her.

Thereafter on 19th February 2021, when Hiremath had come to visit Delhi, the woman decided to meet him in the national capital on 20th February 2021. A meeting took place between the two of them in Khan Market after which they went to ITC Maurya hotel.

According to the complaint, it was alleged by the woman that she was raped by Hiremath in the said five star hotel in Chanakyapuri. However, the said allegations were denied by Hiremath as being "false and frivolous" as the FIR was registered after a delay of 3 days i.e. on 23rd February 2021.

The Bombay High Court last month had refused to grant the anchor transit anticipatory bail. "There is no dispute about powers to grant transit anticipatory bail. The applicant is charged under Section 376 of IPC. The applicant may approach the appropriate court. I am not inclined to grant such relief in this case" Justice PD Naik observed while rejecting the plea.

Court's Observation

The Court observed that the prosecutrix in her complaint as well as in her statements under sec. 164 CrPC specifically denied that the said act was consented one. In view of this, the Court went ahead to observe:

"So far as this question of treating 'no' as 'yes' coupled with the conduct of the prosecutrix and the accused is a matter of trial, only when prosecutrix will get a chance to record her testimony. But at this stage of the anticipatory bail application, this court cannot lose the focus of the facts of this case and ingredients of the commission of an offence under Section 375/376 IPC, in which this FIR has been registered. Although, opinion at this stage does not tantamount to expression on the merit of this case."

The Court also opined that although the two were in a loving relationship and were being indulged in sexual explicit talks, this would not make any difference at the present stage in view of sec. 53A of Indian Evidence Act.

"In such circumstances, the presumption under Section 114A Evidence Act, at this stage, cannot be ignored although this has to be at the time of trial but the evidence collected by the IO till today in the form of complaint, and WhatsApp and Instagram chats and written transcripts are sufficient to say that this not a case where such presumption appears to be absent." The Court observed.

Considering the nature of accusations against the accused, evidences collected by IO and gravity of offence, the Court refused to grant anticipatory bail to the accused.

About the Anticipatory Bail

According to the anticipatory bail plea, it was submitted that Varun Hiremath, was apprehending a coercive action being taken against him by the investigating agencies. One of the grounds mentioned under the plea reads thus:

"Because the Prosecutrix went into the Hotel Room with her complete consent and will and the allegations leveled against the Petitioner with respect to the events inside the room are totally baseless and false. It is stated that the Petitioner did not do any acts against the consent or will of the prosecutrix."

While submitting that the relationship between the two was consensual and intimate, relevance has been made on the judgment of Naushad v. State of NCT of Delhi & Ors.; Bail Application No. 1390/2020 wherein the Delhi High Court held that bail cannot be denied as a measure of punishment only on account of the allegations leveled.

"That in the backdrop of the afore stated circumstances, the Petitioner • apprehending arrest in the hands of the investigating authorities, has approached this Hon 'ble Court calling upon invocation of powers under section 438 of Cr. P.C. and passing of appropriate directions for release on bail in event of their arrest in relation to the Case FIR No. 11 dated 23.02.2021, registered with Police Station Chanakyapuri." The plea read.