Consensual relationship and prolonged judicial custody can be considered in granting bail, especially when imposing conditions to address prosecution's apprehensions.

JUDGMENT

Ravi Cheemalapati, J. - This Criminal Petition is filed under Sections 437 & 439 of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.'), seeking bail, by the petitioner/sole accused in Cr. No. 129 of 2022 of Devarapalli Station, Visakhapatnam District (present Anakapalli District), registered for the offence punishable under Sections 376 and 417 of Indian Penal Code.

2. The case of the prosecution, in brief, is that the accused on the pretext of marrying sexually exploited the de facto complainant for the last seven (07) years and on 26.05.2022, the accused took the de facto complainant to his house and had sexual intercourse with her and on 27.05.2022 at 6.00 a.m. he went out and did not return. Later, the accused, phoned up and intimated that he don't marry her. Basing on the complaint of the de facto complainant, the present crime has been registered.

3. Heard Sri Dasari SVVS Prasad, learned counsel for the petitioner, and Sri Soora Venkata Sainath, learned Special Assistant Public Prosecutor for the respondent-State.

4. Sri Dasari SVVS Prasad, learned counsel for the petitioner, in elaboration, contends that a glance at the report would make it clear that there has been consensual sexual intercourse between the petitioner and the de facto complainant for more than seven (07) years. Thus, the offence punishable under Section 376 of I.P.C. is not made out against the accused. In support of his contention, he relied on the decision in Ansaar Mohammad vs. State of Rajasthan & Another The relevant portion of the said decision relied on by the learned counsel is extracted hereunder:

'4. In view of the said fact, 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 learned counsel would further submit that the petitioner has been languishing in jail since 06.06.2022 and the material part of the investigation is completed.

The learned counsel would further submit that the Petitioner was employed as a BSF constable and in view of false implication in this case he was suspended from his employment.

On the above contentions, the learned counsel for the petitioner sought for grant of regular bail to the petitioner.

5. The learned Special Assistant Public Prosecutor would contend that the accused has exploited the de facto complainant by deceiving her that he would marry her and since consent was given by the prosecutrix on misconception of fact, it cannot at all be construed as a valid consent and thus the ingredient of offence punishable under Section 376 of IPC are very much present in this case. The learned Special Assistant Public prosecutor in support of his contention has relied on the decision in Anurag Soni v. State of Chhattisgarh (2019) 13 SCC 1.

The learned Special Assistant Public Prosecutor would further contend that 164 Cr.P.C. statement of the victim is to be recorded and the investigation is in progress and if the petitioner is released on bail, he may tamper with the prosecution evidence and hamper with the process of investigation.

On the above contentions, the learned Special Assistant Public Prosecutor opposed the bail to the petitioner and prays to dismiss the petition.

6. On perusal of the judgments relied on by the counsel, the decision relied on by the learned Special Assistant Public Prosecutor is not applicable to the facts of the case on hand and the facts of the present case are somewhat similar to the facts of the decision relied on by the learned counsel for the petitioner.

7. Taking into consideration the fact that there was consensual relationship between the petitioner and the de facto complainant for more than seven (07) years and keeping in view the fact that the petitioner is in judicial custody since 06.06.2022 and further keeping in view that the petitioner was employed as BSF constable, this Court is inclined