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ANDHRA PRADESH HIGH COURT AT AMARAVATI
Ravi Cheemalapati, J.
Basavala Raj Kumar – Appellant
Versus
State of A. P. – Respondent
Criminal Petition No. 6519 of 2022
Decided On : 15-09-2022
CRIMINAL PROCEDURE CODE - SECTION 438 - PRE-ARREST BAIL - RAPE - CONSENT - LIVE-IN RELATIONSHIP - SECTION 376 OF IPC - SUMMARY
Fact of the Case:
The petitioner, accused of rape, sought pre-arrest bail, arguing that the complaint did not attract charges under Section 376 of the IPC, as the relationship between him and the complainant was consensual and had not worked out.
Finding of the Court:
The court found that the FIR did not contain all the details and that the relationship between the petitioner and the complainant was a live-in relationship that had not worked out, leading to the registration of the FIR.
Issues: Whether the allegations in the complaint attracted charges under Section 376 of the IPC, given the consensual nature of the relationship between the petitioner and the complainant.
Ratio Decidendi: The court relied on the Supreme Court's decision in Ansaar Mohammad v. The State of Rajasthan, which held that if a relationship is not working out, it cannot be a ground for registering an FIR under Section 376 of the IPC.
Final Decision: The court granted pre-arrest bail to the petitioner, subject to certain conditions, including executing a self-bond and appearing before the police station once a week.
Based on the provided legal document, the key points are as follows:
The court addressed whether a consensual live-in relationship that does not work out can be grounds for registering an FIR under Section 376 of the IPC. It was held that such a relationship, when not involving non-consensual acts, does not constitute the offense of rape under Section 376 (!) .
The petitioner, accused of rape, sought pre-arrest bail on the grounds that the complaint did not establish an offense under Section 376, as the relationship was consensual and had ended. The court noted that the FIR lacked detailed allegations and was based on a relationship that was a live-in arrangement that did not work out (!) .
The court emphasized that if a relationship is consensual and not ongoing, it cannot serve as a basis for registering an FIR under the offense of rape. This aligns with judicial principles that distinguish between consensual relationships and non-consensual acts (!) .
The court considered the fact that a substantial part of the investigation was completed, and therefore, granted pre-arrest bail to the petitioner under certain conditions, including executing a self-bond, appearing regularly before the police, and not contacting or threatening the complainant or witnesses (!) (!) (!) (!) .
The conditions also included strict compliance, with a warning that breach could lead to cancellation of bail and further legal action. The order clarified that the police retain the right to continue investigation and that the bail order should not influence other proceedings (!) (!) .
The petitioner’s prior application for pre-arrest bail was dismissed by the lower court on the grounds that the investigation was at an initial stage, but the current order considered the progress of investigation and the legal principles involved (!) .
Overall, the judgment underscores that a relationship's consensual nature and its non-continuance are critical factors in determining whether an FIR under Section 376 of the IPC is justified, and that pre-arrest bail can be granted with appropriate conditions when the investigation is sufficiently advanced.
JUDGMENT
1. This Criminal Petition is filed under Sec. 438 of the Criminal Procedure Code ('Cr.P.C.' in short), seeking pre-arrest bail, by the petitioner/Accused No.1 in Crime No.546 of 2022 of Kancharapalem Police Station, Visakhapatnam District, registered for the offences punishable under Ss. 417, 376 and 506 of the Indian Penal Code, 1908 ('IPC' in short)
2. The case of the prosecution, in brief, is that the de facto complainant, due to differences between her and her husband, is living separately. The accused taking advantage of the same, on the pretext of love and marriage, exploited her sexually and when she demanded him to marry her, he refused and threatened to kill her. Hence, the above crime was registered against the petitioner.
3. Heard Sri R.K. Acharyulu, learned Counsel for the petitioner and Sri Sravan Kumar Naidana, learned Special Assistant Public Prosecutor for the respondent-State.
4. Learned counsel for the petitioner, in elaboration to what has been raised in the grounds, contended that a plain reading of the complaint do not attract any charges much less Sec. 376 of IPC. It is stated that if the allegations of the complaint are taken on its face value, it shows consent of the de facto complainant and as the live-in relationship between the petitioner and the de facto complaint has not worked out, the present complaint is made by the de facto complainant. In such circumstances, if the petitioner is arrested in the present crime, his reputation in his family circles will be effected. The petitioner has not committed any offence much less the alleged offence. It is stated that the petitioner is ready and willing to abide by the conditions that may be imposed by this Court. In support of his contention he relied on the decision of the Hon'ble Supreme Court in Shajan v. State of Kerala, 2022(2) R.C.R. (Criminal) 698 : 2022 CriLJ 2289. and draw the attention of this Court to paragraph No.5 of the said judgment, which reads as follows:
"5. We find considerable force in the submission made by the counsel for the appellant. It is an admitted fact that the parties, namely the appellant and the prosecutrix/respondent no.2 were living together for quite some time. The factum of registration of Ext.P-1, being the marriage agreement, also indicates the agreed terms between the parties. It is nobody's case that the agreement was forced on the prosecutrix/respondent No.2, as even the High Court was pleased to observe that it was done voluntarily."
He also contended that the petitioner filed Crl.M.P.No.2619 of 2022, before the Sessions Court, seeking pre-arrest bail and the same was dismissed by the Sessions Court on 14/7/2022, on the ground that investigation is at initial stage. It is stated that now substantial part of the investigation is completed and as such prayed to consider this application for pre-arrest bail.
5. On the other hand learned Special Assistant Public Prosecutor opposed the application and contended that the FIR is not an encyclopedia to contain all the details and in the event if bail is considered, the petitioner may not co-operate with the investigation. Accordingly, prayed for dismissal of the same.
6. Perusal of the report prima facie shows that the petitioner and the de facto complainant are in live-in relationship for quite some time and since their relationship is not working out, the present FIR has been registered. In Ansaar Mohammad v. The State of Rajasthan, 2022 LiveLaw (SC) 599. the Hon'ble Supreme Court has categorically held that if relationship is not working out, the same cannot be a ground for getting an FIR registered under Sec. 376 of IPC.
Taking submissions of both the learned counsel and the material available on record into consideration and keeping in view the judgment of the Hon'ble Supreme Court in Ansaar Mohammad v. The State of Rajasthan, 2022 LiveLaw (SC) 599. and as substantial part of the investigation is completed, this Court is inclined to grant pre-arrest bail to the p
A consensual live-in relationship that does not work out cannot be a ground for registering an FIR under Section 376 of the IPC.
When a complainant willingly stays and has a relationship, if the relationship does not work out, it cannot be a ground for lodging an FIR for the offense under Section 376(2)(n) of IPC.
The seriousness of the offence and prima facie evidence from the FIR are crucial factors in deciding on anticipatory bail.
Consensual relationship and prolonged judicial custody can be considered in granting bail, especially when imposing conditions to address prosecution's apprehensions.
Consensual sexual relationship in a long live-in relationship does not prima facie constitute the offense of rape under the IPC. The nature of accusations must justify custodial interrogation for the....
The absence of specific overt acts against the petitioner in the nature of allegations led to the grant of pre-arrest bail under Section 438 of the Cr.P.C.
The court established that credible evidence and context are essential in determining the necessity of custodial interrogation in anticipatory bail applications.
A promise of marriage does not constitute rape if the relationship was consensual and there is no evidence of a false promise from the beginning.
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