Back
IN THE HIGH COURT OF DELHI AT NEW DELHI
Anup Jairam Bhambhani, J.
Rishabh Rawat – Appellant
Versus
The State Govt. of NCT of Delhi – Respondent
Bail Appln. 780 of 2022 & Cr.M.A 26639 of 2022
Decided On : 01-06-2023
BAIL - Criminal Procedure - Code of Criminal Procedure, 1973, Indian Penal Code, 1860 - 376, 377 - The court discussed the nature of the matter, the delay in filing the FIR, the petitioner's alibi, the prosecutrix's medical examination, the conduct of the parents, lack of evidence, and the legal position on 'promise to marry' in relation to consent. The court also considered the 'bail not jail' rule and granted bail to the petitioner pending trial.
Fact of the Case:
The petitioner sought regular bail in a case registered under sections 376/377 of the Indian Penal Code. The petitioner and the prosecutrix were classmates and in a relationship. The petitioner argued that the case was foisted upon him due to a failed marriage proposal and presented evidence of a consensual relationship. The State and the prosecutrix opposed the bail, citing consistent allegations and extra-judicial confession.
Finding of the Court:
The court considered the evidence, legal position on 'promise to marry' and consent, and the 'bail not jail' rule. It found that the evidence did not conclusively establish a false promise of marriage and immediate relevance to the prosecutrix's decision. Considering the ongoing relationship and the petitioner's custody, the court granted bail with specific conditions.
Issues: Delay in filing the FIR, evidence of consensual relationship, extra-judicial confession, legal position on 'promise to marry', and the 'bail not jail' rule.
Ratio Decidendi: The court relied on the legal position that consent must involve active and reasoned deliberation, and a false promise of marriage must be given in bad faith and have immediate relevance to the sexual act. It also considered the 'bail not jail' rule in granting bail.
Final Decision: The court granted the petitioner bail pending trial with specific conditions, emphasizing that the order did not express any opinion on the merits of the pending matter.
JUDGMENT
Anup Jairam Bhambhani J.
1. By way of the present petition filed under section 439 read with section 482 of the Code of Criminal Procedure, 1973 (`Cr.P.C.') the petitioner seeks grant of regular bail in case FIR No. 550/2021 dated 07.09.2021 registered under sections 376/377 of the Indian Penal Code, 1860 (`IPC') at P.S.: Karol Bagh.
2. Notice on this petition was issued on 08.03.2022; consequent whereupon Status Report dated 23.04.2022 has been filed. Though no nominal roll was called for, the Investigating Officer (I.O.) confirms that the petitioner has been in custody from the day of his surrender before the trial court i.e., since 16.10.2021.
3. Chargesheet in the matter was filed on 10.12.2021; whereafter, on 07.03.2022 charges were framed against the petitioner under section 376 IPC only, and the petitioner was discharged for the offence under section 377 IPC.
4. Considering the nature of the matter, some of the hearings were conducted in-camera.
5. The court has heard Mr. Vipin Rana, learned counsel appearing for the petitioner; as well as Mr. Tarang Srivastava, learned APP appearing for the State; as also Mr. Deepak Singh Thakur, learned counsel appearing for the prosecutrix in compliance of section 439(1A) Cr.P.C.
6. Mr. Rana submits, that the petitioner and the prosecutrix, both of whom are `major', were classmates, and were in a relationship for the last two years. It is submitted that the present case has only been foisted upon the petitioner since a proposal for the two marrying each other went awry.
7. Counsel further submits that there is considerable delay in filing the FIR, inasmuch as the FIR was filed on 07.09.2021, relating back to an alleged incident of 21.01.2021, as also another alleged incident of an unspecified date in May 2021. Counsel states that the second allegation of sexual intercourse in May 2021 is bereft of any specifics, since neither a date nor time as to when the incident occurred has been mentioned.
8. As regards the alleged incident of 21.01.2021, counsel submits that the petitioners CDRs show that on that day he was at his home in Baljeet Nagar, West Patel Nager, New Delhi from 6:20 a.m. to 2:58 p.m. and on-call with the prosecutrix. Furthermore, it is pointed-out that the distance between the homes of the petitioner and prosecutrix is about 03 kms, which makes it impossible for the petitioner to have been at the prosecutrix's house between 2:30 p.m. and 3:00 p.m., when the incident is alleged to have taken place.
9. Furthermore, learned counsel places reliance on the prosecutrix's MLC dated 07.09.2021, to show that during her medical examination, she admitted to the doctor that she had been in a relationship with the petitioner for the past 02 years.
10. Counsel has also drawn attention to the conduct of the parents of the parties as narrated in the FIR. It is submitted that the FIR records that after the second alleged incident in May 2021, the parents of the prosecutrix spoke to the parents of the petitioner and they (latter) promised to perform the marriage between the prosecutrix and petitioner at an appropriate time, after they complete their studies.
11. Counsel submits that there are no allegations of any physical assault during the alleged incidents; and apart from the oral testimony of the prosecutrix, there is no evidence against the petitioner. Counsel also submits that the behaviour of the prosecutrix and her mother is suspect, since they did not provide to the I.O. the phones they were using during the time of the incident, which phones contained crucial evidence to establish a consensual relationship between the two.
12. Counsel has also handed-up in sealed cover, certain WhatsApp chats between the petitioner and prosecutrix, and also photos of the petitioner and prosecutrix together, to evidence a prior consensual relationship between them.
13. Lastly, counsel submits that a mere breach of `promise to marry' does not constitute an offence
AI
Consent to engage in a sexual relationship is not vitiated by a promise of marriage unless the promise is proven to be made in bad faith or with no intention to adhere to it from inception.
The legal principle established is that consent must involve active and reasoned deliberation, and a false promise of marriage must be given in bad faith with no intention of being adhered to at 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.
The distinction between a false promise to marry and breach of a promise to marry, and the relevance of consent and intention at the time of making the promise.
The judgment emphasizes the nuanced consideration of consent, the impact of emotional exploitation on consent, and the distinction between consenting to a situation and consenting to sexual liaison.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
