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ANDHRA PRADESH HIGH COURT AT AMARAVATI
Subba Reddy Satti, J.
Illuri Eswaraih – Appellant
Versus
State of Andhra Pradesh – Respondent
Criminal Petition No. 4097 of 2022
Decided On : 08-07-2022
BAIL - SECTION 437 AND 439 CR.P.C. - SECTIONS 376, 420 IPC AND SECTIONS 3(2)(V), 3(1)(W), 3(1)(R)(S), 3(2)(V), 3(2)(VA) SC ST ACT - CONSENSUAL SEX - INTERPRETATION OF SECTION 376 IPC - DISTINCTION BETWEEN RAPE AND CONSENSUAL SEX - FACTORS TO BE CONSIDERED WHILE GRANTING BAIL - COURT'S DISCRETION - APPLICABILITY OF SC ST ACT.
Fact of the Case:
Petitioner, accused of rape, cheating, and atrocities under the SC ST Act, sought bail, arguing that the alleged sexual intercourse was consensual and that the complainant was a major and a law graduate at the time of the incident.
Finding of the Court:
The court held that the alleged incident amounted to consensual sex and that the offense under Section 376 of IPC may not be attracted. The court also held that the utterances touching the caste were allegedly made when the petitioner was out of state and that the offense under Section 420 of IPC was punishable with imprisonment of less than three years.
Issues: 1. Whether the alleged sexual intercourse was consensual or not? 2. Whether the utterances touching the caste were made with the intention to humiliate the complainant? 3. Whether the petitioner should be granted bail?
Ratio Decidendi: 1. The court relied on several Supreme Court judgments to distinguish between rape and consensual sex. The court held that in the present case, the complainant was a major and a law graduate at the time of the incident, and that the alleged sexual intercourse was consensual. 2. The court held that the utterances touching the caste were allegedly made when the petitioner was out of state and that there was no evidence to suggest that the petitioner had made those utterances with the intention to humiliate the complainant. 3. The court held that the petitioner should be granted bail considering the facts and circumstances of the case, including the completion of the investigation and the petitioner's willingness to cooperate with the trial.
Final Decision: The court allowed the petition and granted bail to the petitioner on a personal bond of Rs. 50,000/- with two sureties each for a like sum.
JUDGMENT
Subba Reddy Satti, J. - Accused No. 1 in Crime No. 88 of 2022 of Disha Mahila Police Station, Anantapur, Anantapur District, filed the above criminal petition under Section 437 and 439 of Code of Criminal Procedure, 1973 (for short 'Cr.P.C') seeking regular bail.
2. The de facto complainant lodged complaint stating that she completed LL.B in SKU, Anantapur and from the last six years, herself and petitioner are loving each other. Petitioner is working as CISF constable in Delhi. During Dasara Vacation, 2019, petitioner came down to the village and complainant was staying with her friends in a room in Uma Nagar, Anantapur. She further stated that in the absence of her friends, petitioner came to room and on the promise to marry her, he had sexual intercourse with her. Later, when she asked the petitioner to marry her, he replied her to wait for six months. Though 11/2 years have been elapsed, there is no response from the petitioner. When she telephoned to petitioner, he informed complainant that his parents are not accepting for marriage as she belongs to SC community and they belongs to washermen community and he also switched off his phone from 31.11.2021(sic). It was further stated that on coming to know about her love affair, parents of complainant confined her to house. On 03.03.2022, she could come out of the house and on 08.03.2022 she along with one Narasimhulu and others went to the house of petitioner, where the parents and brothers of petitioner abused her by touching her caste. Basing on the said complaint, police registered the above crime for the offences punishable under Sections 420, 376 of the Indian Penal Code, 1860 (for short 'IPC') and Sections 3(2)(v), 3(1)(w), 3(1)(r)(s), 3(2)(v), 3(2)(va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 (for short 'SC ST Act'). Petitioner was arrested and remanded to judicial custody on 19.05.2022 and since then he is in Central Prison, Anantapur.
3. Heard Sri T.V. Jaggi Reddy, learned counsel for the petitioner and the learned Special Assistant Public Prosecutor for State.
4. Learned counsel for the petitioner would submit that the petitioner is innocent, and he is nothing to do with the alleged offence. He submits that as seen from the F.I.R, there are no prima facie ingredients against the petitioner to attract the offence under Section 420 and 376 of IPC and Section 3(2)(v), 3(1)(w), 3(1)(r)(s), 3(2)(v), 3(2)(va) SC ST Act. He submits that going by the complaint, no specific date was mentioned as to when the offence committed, except stating during Dasara Vacation 2019. He also submits that de facto complainant is major and also a law graduate at the time of alleged offence. He further submits that the incident as alleged by the de facto complainant amounts to consensual sex and hence, Section 376 of IPC does not attract. He also submits that entire investigation is completed and he prayed the Court to grant bail.
5. Learned counsel for the petitioner relied on the following decisions rendered by Hon'ble Apex Court:
(1) Dr. Dhruvaram Muralidhar Sonar Vs. State of Maharashtra and others (2019) 19 SCC 191.
(2) Shivashankar alias Shiva Vs. State of Karnataka (2019) 18 SCC 204.
(3) Maheswar Tigga Vs. State of Jharkhand (2020) 10 SCC 108.
6. Per contra, learned Special Assistant Public Prosecutor Sri S.V. Sainath would submit that consent on the ground of fraud would not amount to consensual sex. He also submits that petitioner made the complainant believe that he would marry her and committed the offence and hence, it does not amount to consensual sex and he thus, prayed the Court to dismiss the petition. He further submits that Section 15A(3) of SC ST Act is complied with and police served notice on the de facto complainant on 05.07.2022.
7. I have given my anxious consideration and perused the record and instructions. The application is filed under Section 437 and 439 Cr.P.C. seeking release of the petitioners on bail. The
Consent given under a false promise to marry must be proven as knowingly false from the outset for an accusation of rape to succeed; consensual relationships later turning sour do not invoke criminal....
Misconception of fact – Merely because physical relations were established on a promise to marry, it would not, by itself, amount to rape.
Consensual relationship and prolonged judicial custody can be considered in granting bail, especially when imposing conditions to address prosecution's apprehensions.
The main legal point established is the need to carefully examine the nature of the relationship, the genuineness of the prosecution, and the balance between the rights of the accused and the interes....
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