"Not A Case Of Forceful Sexual Assault":Delhi HC Grants Anticipatory Bail To Doctor Accused Of Raping Woman On Pretext Of False Promise Of Marriage

The Delhi High Court has recently granted anticipatory bail to a Delhi based Doctor accused of raping a woman on the pretext of false promise of marriage, after observing that there was "no forceful sexual assault" done in the case. The Court furthermore observed that there was nothing on record to indicate that he promised to marry her and therefore the question of whether such consent by the prosecutrix to have a physical relationship with him was a free consent or not needs to be decided in the trial.

A single judge bench comprising of Justice Subramonium Prasad observed thus:

"The petitioner is a Doctor working in Safdarjung Hospital and it cannot be said that he would be in a position to terrorise the prosecutrix or tamper with evidence. The evidence has been collected, the mobile phone of the petitioner is with the Police. In view the above, this Court finds it just and expedient to grant bail to the petitioner in the event of arrest in FIR No.44/2021 dated 28.01.2021 registered in Police Station Hauz Khas for offences punishable under Section 376 and 328 IPC."

An anticipatory bail application was filed by one Dr. Sandeep Mourya under sec. 438 CrPC anticipating arrest in an FIR filed against him dated 28th January 2021 under sec. 376 (Punishment for Rape) and 328 (Causing hurt by means of Poison etc. with intent to commit an offence) of the Indian Penal Code.

According to the complaint, it was alleged by the woman that during the course of her father's treatment at the Safdarjung Hospital, the petitioner doctor came to her residence and gave his profile for the purpose of marriage and asked for her profile.

Moreover, it was alleged that on 9th June 2020, he called her to his residence wherein she was allegedly given some cold drink after which she could not remember anything. It was after her gaining consciousness that she realized that she was raped and on the event of confronting the petitioner, he allegedly threatened her that he will viral her video. Furthermore, the prosecutrix alleged that he raped her again on two other occasions dated 17th June and 16th September 2020.

The Sessions Court vide order dated 6th March 2021 rejected his anticipatory bail application on the ground that sexual relationship was established between the petitioner and prosecutrix on the promise of marriage and therefore anticipatory bail could not be granted to the petitioner.

Senior Advocate Mohit Kumar appearing on behalf of the petitioner doctor argued before the High Court that he has joined the investigation and that the police has taken his mobile phone into custody which contained the photos and videos as alleged by the prosecutrix. Moreover, it was argued that the statements of the prosecutrix and her sister did not match and that no useful purpose would be served by arresting the petitioner.

On the other hand, Advocate Zeenat Malick appearing on behalf of the prosecutrix submitted that the offence committed by the petitioner doctor was "heinous in nature" and that it was only on the pretext of his promise to marry her that she established physical relationship with him. Furthermore, it was argued that the prosecutrix started receiving obscene messages from unknown numbers at the instance of the petitioner doctor.

Noting that there were contradictions on the initial and present versions of the prosecutrix, the Court observed that there was no promise to marriage in the case as shown by the records.

In view of this, the Court relied on the judgment of Pramod Suryabhan Pawar v. State of Maharashtra, (2019) 9 SCC 608 wherein the Apex Court observed that "To summarise the legal position that emerges from the above cases, the "consent" of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the "consent" was vitiated by a "misconception of fact" arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act."

At the outset, the High Court while granting anticipatory bail to the petitioner doctor reasoned thus:

"The prosecutrix is a make-up artist and is a resident of Delhi. It cannot be said that she is a naive lady. This is not a case of forceful sexual assault. At this juncture, there is nothing on record which would indicate that the petitioner had promised marriage to the prosecutrix and therefore the consent given by the prosecutrix to have physical relationship was a free consent or not will be decided only in trial."

The bail was granted to the petitioner subject to furnishing of a personal bond of Rs. 50,000 and one surety of like amount being a relative.

Recently, the Orissa High Court observed that there is a need for amendment in the legislation defining what constitutes sexual intercourse with the prosecutrix on the prextext of false promise to marry.

"There is a need for the amendment in the legislation defining what constitutes "sexual intercourse" with the prosecutrix on the "pretext of a false promise of marriage". As in the present scenario, the law on this matter lacks clarity for the conviction of the accused." Orissa High Court observed.

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