The refusal of the prosecutrix and the lack of genuine intention to solemnize marriage indicated that it was not a consensual relationship, and the gravity of the allegations justified denying anticipatory bail.

JUDGMENT

Vivek Puri, J. - The petitioner is seeking anticipatory bail in the case bearing FIR No. 0552, dated 23.07.2022, under Section 376 of the Indian Penal Code (for short 'IPC'), registered at Police Station Civil Lines Karnal, District Karnal.

2. Briefly, the FIR has been registered on the allegations that roka ceremony of the petitioner was held on 30.01.2022 with the petitioner and the date of marriage was fixed as 06.12.2022 with the consent of the family. On 21.02.2022, the petitioner met the prosecutrix and asked her to form physical relationship, but she refused to do so.

3. The petitioner again met her on 27.05.2022 in Delhi and again insisted for physical relationship. On 18.06.2022, the prosecutrix was taken by the petitioner to Leela Grand Hotel, Karnal, on the pretext that he was tired and wants to take rest. The prosecutrix was taken to a room and petitioner asked her for physical relations, but she refused to do so. Despite that the petitioner entered into physical relationship with the prosecutrix and also made her videos. Subsequently, on 17.07.2022, the mother of the petitioner informed the mother-in-law of the sister of the prosecutrix that the petitioner is quarrelling for the last two months at home as he does not want to solemnize marriage with the prosecutrix.

4. Learned senior counsel for the petitioner contends that there is no dispute with regard to the fact that the petitioner was engaged with the prosecutrix and the date of marriage was fixed as 06.12.2022. Furthermore, the necessary bookings for the marriage ceremonies were done by the petitioner and his family. The family of the petitioner came to know that the prosecutrix was having love affairs with other male friends and accordingly, marriage was called off on 02.07.2022. Subsequent to the engagement, the petitioner and the prosecutrix had voluntarily visited the hotel and their names have been reflected as guest in the records of the hotel. The physical relations were developed with the consent of the prosecutrix. Even subsequent to the occurrence, the whatsapp messages were exchanged which indicate that it was a consensual relationship. By placing reliance upon a decision of Hon'ble Supreme Court rendered in Maheshwar Tigga vs. State of Jharkhand, (2020) 10 SCC 108, it has been argued that the relationship was consensual in nature, but the marriage could not fructify and consequently, no case under Section 376 IPC is made out.

5. Learned State counsel and the learned counsel for the complainant have opposed the bail application on the score that serious allegations of commission of rape have been leveled against the petitioner despite the refusal on the part of the prosecutrix. The petitioner had also prepared the video while indulging in physical relationship. Subsequent chats between the petitioner and the brother-in-law of the prosecutrix are indicative of the fact that the petitioner is not disputing the fact of entering into physical relationship and preparing the video. Furthermore, the audio recordings have also been presented by the complainant party to the investigating agency and the voice sample of the petitioner is required for proper investigation of the case. Even in her statement under Section 164 of the Code of Criminal Procedure, the prosecutrix has reiterated her allegations.

6. There is no dispute between the parties to the effect that the petitioner was engaged with the prosecutrix and the date of marriage was fixed for 06.12.2022. The petitioner has sought to put forth a case to the effect that the marriage was called off on 02.07.2022 as his family had discovered that the prosecutrix was having love affair with other male friends. As per the version of the prosecution, on 18.06.2022, the petitioner took the prosecutrix to a hotel, where physical relations were developed despite her refusal. Even at earlier instance also, the petitioner had been insisting for such relationship, but the prosecutrix had been refusing to do so