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 interests of justice.

ORDER :

1. By way of the present petition under Section 438 of the Code of Criminal Procedure, 1973, the petitioner has prayed to release him on anticipatory bail in case of his arrest in connection with the FIR registered as C.R.No.11188006230199 of 2023 registered with Malpur Police Station, Aravalli.

2. Facts of the case are as under :-

2.1. It is alleged in the complaint that on 16.01.2023, first informant had gone to Malpur village for shopping. At around 3.00 pm she was returning to home and was waiting at auto stand. She saw the petitioner and other accused person in car of accused no.2 and therefore, she sought lift from them and they move towards Modasa. The petitioner told her that they would drop her at home. It is alleged that accused persons administered threat that if she would raise cry, they would kill her. Thereafter, they had taken her to Kachchh. It is alleged that petitioner committed forceful sexual intercourse with her several times. It is alleged that petitioner took her to different places and committed intercourse. It is alleged that first informant managed to take her phone back from petitioner and called her father. On 09.04.2023, she returned Malpur and got her statement recorded in missing complaint given by her father. Thereafter, as settlement could not be done, impugned FIR came to be filed.

3. Learned advocate for the petitioner submits that when incident took place, victim was major. She would further submit that not only she was major but she was already married to some other person and she took divorce and now married with some other person. He would submit that FIR is filed after delay of 12 days. It is submitted that though as per FIR victim was kept in closed house and was raped, but at no point of time, she raised her voice. It is submitted that Janvagoj information was registered by father of victim as she was missing, pursuant to which she remained present on 09.04.2023, at that time she has raised her voice and submitted that she was raped by accused. It is submitted that even if rape is committed, it is consensual relationship. Referring to Annexure-C, he would submit that what emerges from photo that victim who is already married was in deep love with accused and she has clicked photos with accused at her willingness that indicates that it was consent on the part of the accused and on the part of the victim. It is therefore, submitted that if entire act is believed, it is on consent of victim. It is further submitted that no case of custodial interrogation is made out. It is submitted that FIR is filed to save her 2nd marriage. It is submitted that the petitioner is ready and willing to join investigation as and when called by Investigating Officer. It is therefore, submitted to grant anticipatory bail to the petitioner.

4. On the other hand, learned APP would submit that on going through FIR, it appears that accused has kept victim in closed house and against her wish physical relationship was maintained. The victim was given threat to life. It is submitted that accused did not stop raping victim and he took victim at various place and raped her under threat. Thus offence is required thorough investigation and it can be done only if accused is in police custodial and therefore, it is submitted to dismiss the petition.

5. Having heard learned advocates for the parties, at the outset, let refer judgment of the Hon’ble Apex Court in the case of Sonu alias Subhas Kumar v/s. State of Uttar Pradesh [AIR 2019 SC 4010]. In para 7 and 11, it is held as under :-

“7. On the basis of the rival submissions and with the assistance of the counsel, we have perused the FIR. The FIR specifically records that the second respondent had developed a friendship with the appellant and that he had assured that he would marry her. The FIR then records that the appellant and the second respondent developed a physical relationship which spread over a period of one and a half years, during the course of which the sec