The court distinguished between consensual sex and rape, emphasizing the victim's adult status and consent, leading to the granting of anticipatory bail.

JUDGMENT :

Bipin Chander Negi,J.

The present bail petition has been filed under Section482 of BNSS, 2023 for grant of anticipatory bail, in FIR No.78 of 2024, dated 28.09.2024, registered at Police Station, Chirgaon, District Shimla H.P., under Sections 376 of Indian Penal Code.

2. Heard counsel for the parties. Perused the record. Status report filed, the same is taken on record. Copy whereof supplied to learned counsel appearing on behalf of the petitioner. 3. The victim in the case at hand stated that she is married in a place called Pekha. In January, 2024, the victim in order to meet her maternal grandmother came to Village Pekha, wherein she stayed at her maternal uncle’s house. Herein she met her nephew, the present bail petitioner. The victim alleged that the bail petitioner by extending a false promise of marriage with her, indulged in a sexual intercourse.

4. The victim in February, 2024 alongwith her children had taken a house at place called Jhamwari. It is alleged by the victim that petitioner had told her that since out of his wedlock, no child was born, therefore, he wanted to live with the victim. As per the victim, when her children had gone to Kinnaur, the bail petitioner had forcefully indulged in sexual intercourse with her.

5. After the aforesaid incident as per the victim, she wanted to commit suicide by jumping into the river. However, while she was in the process of ending her life by committing suicide, according to the victim, the bail petitioner intervened and on the pretext of getting married with the victim had dissuaded her from committing suicide. Subsequent thereto, the bail petitioner had been continuously residing with the victim.

6. Thereafter, on the demise of the maternal grandfather of the bail petitioner, the bail petitioner on 7th September, 2024 had gone to Chidgaon. On 7th September, 2024 in connection with the medical check up of the victim, the bail petitioner had called the victim to Rohru. On 8th September, 2024, the bail petitioner alongwith his family met the victim and went to Rohru. After 12th September, 2024, according to the victim, the bail petitioner has not returned to join the company of the victim and had left her in the lurch. The victim is stated to be pregnant.

7. Challan in the case at hand was filed on 25.11.2024. Vide interim order dated 18.10.2024, the petitioner had been enlarged on bail. Subsequent thereto, the petitioner had joined investigation regularly. No recovery is to be instituted from the bail petitioner. Insofar medical report is concerned, nothing incriminating has been found till as yet. The victim in the case at hand has not given birth to the child as yet and still is pregnant. Nothing at this stage can be said or stated with respect to the paternity of the child, who is yet to be born. As per the status report, requisite supplementary challan in this respect would be filed after the birth of the child.

8. There is clear distinction between the rape and a consensual sex. At the stage of granting bail, the Court has taken into consideration the conduct of the parties. Prima facie, it appears that the prosecutrix had a physical relation with the bail petitioner with her own consent. Since the prosecutrix is an adult lady with sound mind, therefore, there is no question of inducing her into a physical relation. The prosecutrix, in the case at hand, despite being physically assaulted by the bail petitioner since January, 2024, is quiet till 28.09.2024. The prosecutrix being a married woman was definitely aware of the consequences of her action.

9. Personal liberty is a very precious fundamental right. The same is to be curtailed only when it becomes imperative, according to the peculiar facts and circumstances of each case.

10. The object of bail is to secure the attendance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative.

11. The consequences of pre-trial incarceration are grave. A person pr