The court emphasized the difference between consent given with full knowledge and consent given under a misconception of fact. It held that consent given under a misconception of fact would not be considered valid consent and could amount to rape.

JUDGMENT :

AMOL RATTAN SINGH, J.

1. Case heard via video conferencing.

2. By this petition, the petitioner seeks the concession of ‘anticipatory bail’ under the provisions of Section 438 of the Cr.P.C. upon FIR no. 49, dated 21.06.2020, having been registered at Police Station Women, Ambala City, District Ambala, alleging therein the commission of offences punishable under Sections 323, 376, 420 and 506 of the IPC.

3. At the time when the notice of motion was issued on 26.08.2020, the following order had been passed by this court:-

“Prayer in this petition is for grant of anticipatory bail to the petitioner in FIR No. 49, dated 21.06.2020, under Sections 323, 376, 420, 506 IPC, registered at Police Station Women, Ambala City, District Ambala. Learned counsel contends that a false case has been brought forth for extraneous reasons.

He further contends that the petitioner was a trader of shoes for men and women in Agra. For expansion of his business he would often visit Ambala where he chanced to meet the complainant and they became friends. Thereafter, the complainant would collect the money pertaining to the business transactions on his behalf and later would transfer the same in his account in Agra. Further contends that the complainant with an ulterior motive to misappropriate the amount so collected on behalf of the petitioner has falsely implicated him in the FIR in question. Further contends that the contents of the FIR clearly reveal that the petitioner was a consenting party and the petitioner had never refused to marry her.

Notice of motion for 14.09.2020.”

4. Thereafter, on 23.11.2020, the following order was recorded:-

“Learned counsel for the petitioner submits that even as per the contents of the FIR, as also the statement made by the prosecutrix under the provisions of Section 164 of the Cr.P.C. she admitted that she was living in a consensual relationship with the petitioner and therefore the question of any rape having been committed does not arise.

Mr. Sharma, learned counsel for the complainant, on the other hand submits that the prosecutrix at the time that she entered into the relationship was admittedly only 19 years old though she may be 27 years old today and though she continued to live with the petitioner in a live-in relationship on a promise made by him to marry her, which he never fulfilled, therefore in fact it would amount to rape.

Since a similar question is also coming up in CRM-M-23858 of 2020, on December 02, 2020, adjourned to the same date.

In the meanwhile, till that date only and specifically, the petitioner be not arrested.

It is made clear that any request for an adjournment on that day on behalf of the counsel for the petitioner would result in ‘automatic’ vacation of the interim order, with no further order required to be passed in that regard.”

5. On December 02, 2020, the petitioner was ordered to be admitted to interim bail upon him joining investigation (if he was sought to be arrested).

6. Other than the earlier order having been reproduced, the following directions were given. That part of the order is being reproduced:-

“Today, learned counsel for the petitioner has addressed arguments to the effect that the petitioner though was initially willing to marry the prosecutrix, however, subsequently with differences having arisen between them in their ways of life, he is no longer willing to get married to her and as regards the relationship, he submits that with the prosecutrix having lived with him in Panchkula, Ambala etc. obviously it was a consensual relationship and not a forced one.

Mr. Sharma, learned counsel for the complainant, on the other hand submits that the petitioner having, firstly, falsely lured the prosecutrix into a physical relationship under the promise of marriage, thereafter continued that relationship under that promise and even by threatening her.

He further submits that she was duped of her money also and consequently he does not deserve the concession of even interim anticip