IMPORTANT POINT
A consensual relationship, even if based on a promise of marriage, does not constitute rape under Section 375 IPC unless it is proven that the promise was made in bad faith or with the intent to deceive.

JUDGMENT :

MOHAN LAL, J.

1. Applicant in terms of Section 439(1) Cr.P.C. seeks his release on bail on the grounds that he is lying in custody since January 2021 for the last more than 1 & ½ years in District Jail Kathua for commission of offence punishable under sections 376/420/201 IPC registered with Police Station (Women Cell) Kathua in a false and frivolous case; challan has been presented against applicant in the court of learned Sessions Judge, Kathua on 06.02.2021 which was transferred to the court of learned Additional Sessions Judge, Kathua; on 05.03.2021, charges have been framed against applicant by the court of learned Additional Sessions Judge, Kathua; on 29.03.2021, the statement of Respondent No. 2 (prosecutrix) was recorded in the court of Additional Sessions Judge, Kathua wherein, she has stated that she was deeply in love with the applicant since 2016, she and applicant promised to marry each other and their relationship started in the year 2016; applicant was 17 years of age when he first met Respondent No. 2 through social media platform “Facebook” on 12.03.2016; marriage between the applicant and Respondent No. 2 was fixed in the year 2020 by the family members of the applicant and Respondent No. 2 but due to extortion demands and other contingent conditions set by Respondent No. 2 and her family members, the mother of the applicant decided to postpone the marriage where after baseless allegations against applicant of refusal to marry with the prosecutrix were set forth; applicant and Respondent No. 2 were both minors at the time when they started dating each other and persuade their relationship to another level; the medical examination of Respondent No. 2 was conducted and the doctor has opined that there is no presence of semen of the applicant and further no mark of any violence committed by the applicant; there is no iota of evidence which can be relied upon; according to statement of Respondent No. 2 (prosecutrix) recorded in the court, she has categorically stated that she willfully started meeting the applicant and exchanged her contact number with him and also exchanged her social media account password, her relation with the applicant was purely consensual, Respondent No. 2 in her statement has further stated that she was forced for physical relation by the applicant at the first floor of a shop owned by the father of the applicant and also stated that the incident took place in the year 2016 when both were minors; applicant is the only son of his family comprising of his ill aged father, mother and three elder sisters and is the only bread earner of the family; there is no criminal history of the applicant as he has never been involved in any criminal activity and no other criminal case is pending against him; that the liberty of the person is great importance and most important fundamental rights guaranteed under the Indian Constitution; grant or refusal of bail has to be handled with caution and efficiency; “Bail is rule” and “jail is an exception”; detention of an individual infringes his right to life and liberty as guaranteed under Article 21 of the Constitution of India; applicant undertakes to abide by all the terms and conditions imposed by this Court, if granted bail.

2. Respondent No. 1 has opposed the bail by filing objections contending therein, that applicant has committed offences under sections 376/420/201 IPC in case FIR No. 12/2020 registered at Women Police Station, Kathua and from his date of arrest is lying in District Jail Kathua; it is contended that Respondent No. 2 (prosecutrix) at the time of occurrence on 12.03.2016 was 16 years and 07 months of age and was minor with whom applicant/accused has committed offence of rape by making fake commitments and taking advantage of her minor age; applicant/accused kept raping her with false promise of marriage and when Respondent No. 2 became adult in October 2019, she asked him to marry her but the applicant refused; the Investigatio