The court emphasized the distinction between consensual sex and rape, ruling that personal liberty is paramount and should only be curtailed when necessary.

JUDGMENT :

Bipin Chander Negi, J.

The present bail petition has been filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) for grant of regular bail. The same arises out of FIR No.27 of 2024, dated 16.09.2024, registered at Women Police Station, District Una, Himachal Pradesh, under Sections 69 and 79 of the Bharatiya Nyaya Sanhita, 2023.

2. Brief facts giving rise to the case at hand are that the victim has stated that she is living at Amb for the past three years. As per the victim, she was married in 2011. The victim had got divorced from her previous husband on 27.08.2022. Out of her previous wedlock, she has a son who is around 11 years old.

3. The allegations of the victim, in the case at hand are that about two and half years ago, she had met with the bail petitioner. The bail petitioner was a regular visitor to the house of the victim. On the pretext of marriage, the bail petitioner had indulged in sexual intercourse with the victim. On two occasions, i.e., 29.03.2024 and 21.05.2024, she had given Rs.2,000/- and Rs.1,000/-, respectively to the bail petitioner from her account. As per the victim, the petitioner had forcefully indulged in sexual intercourse with the victim last on 14.08.2024. As per victim, subsequent thereto, the bail petitioner left for his village. Thereafter, the bail petitioner has been sending her abusive text messages on the mobile phone and has been calling her in highly derogatory terms.

4. Heard learned counsel for the parties, perused the status report and the record so produced.

5. From perusal of the status report, it is evident that the investigation, in the case at hand, is complete. The petitioner was apprehended by the Police and he is in custody since 16.09.2024. Challan stands filed before the Court on 07.04.2025. No recovery has to be instituted from the bail petitioner. Nothing incriminating has been brought forthwith in the medical examination so conducted.

6. 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 2 and a half year prior to the filing of the FIR on 16.09.2024 is quiet. The prosecutrix being a married woman was definitely aware of the consequences of her action.

7. The consequences of pre-trial incarceration are grave. A person presumed innocent is subjected to psychological and physical deprivations of jail. Further, a jailed individual is prevented from contributing to the preparation of his defence. The burden of his detention falls heavily on the innocent members of his family.

8. 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.

9. 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. As per the status report, bail petitioner is stated to be a resident of House No.683, Village and Post Office, Morna, Tehsil Jhansal, Post Office Bhonpa, Muzaffarnagar, Uttar Pradesh. In order to ensure his presence at trial, stringent condition can be imposed while granting bail.

10. Punishment begins after conviction. Every man is deemed to be innocent until duly tried and duly found guilty. The consequences of pre-trial incarceration are grave. A person presumed innocent is subjected to psychological and physical deprivations of jail. Further, a jailed individual is prevented from contributing to the preparation of his defence. The burden of his detention falls heavily on the innoce