Pre-arrest bail under Section 438 Cr.P.C. is a discretionary measure and should not impede a fair investigation, particularly in serious charges like rape where duress may negate consent.

JUDGMENT

1. Heard Mr. Sankar Lodh, learned counsel appearing for the petitioner as well as Mr. S. Ghosh, learned Addl. Public Prosecutor representing the State.

2. Petitioner is an accused in Birganj P.S Case No.2022/BRG/002 which has been registered for commission of offence punishable under Sections 376 , 313, 506, 509, 323 read with Section 34 IPC. Apprehending arrest in the case, petitioner has filed this application under Section 438 Cr.P.C for granting pre-arrest bail to him.

3. The case was registered on the basis of the written FIR lodged by the victim of this case wherein she alleged that the accused is a neighbour of her. Father of the accused had a very good relationship with her father and the family members of the accused including the accused used to visit their house regularly. The accused and the victim thus developed an intimacy. On 15.09.2021 accused came to her house and gossiped with her over a long period of time. The other house inmates were away from home at that time. Taking the opportunity, accused committed rape on her. When she divulged the incidence to her guardians, they called the parents of the accused. Father of the accused in a village meeting assured that his son would marry the victim and she was requested not to file any case against him. Their relationship became normal thereafter. On 16.11.2021 when the victim met the accused in his house, he wanted to have physical relationship with her and despite her resistance she was subjected to sexual intercourse by the accused. Accused blackmailed her by saying that he captured all photographs of their past physical relationship in his mobile and in case of her refusal to have physical relationship with him he would make the pictures viral in social media. She informed the father of the accused about the occurrence who advised her to accept everything without protest. Few days thereafter she conceived, when she told the petitioner about her pregnancy, he assured her that he would marry her as soon as he gets an employment. He gave some tablets to the victim. The victim miscarried after taking those tablets. After her miscarriage, accused again started blackmailing her. Then she lodged a written complaint in the Court of the Sub-Divisional Judicial Magistrate at Amarpur. Her complaint was forwarded to the Officer-in-Charge of Birganj police station at Amarpur for investigation and report on the basis of which case was registered and investigation was taken up. Apprehending arrest, accused has approached this Court for pre-arrest bail under Section 438 Cr. P. C.

4. Appearing for the petitioner, Mr. Lodh, learned counsel contends that victim was at her consenting age at the time of occurrence and her complaint would demonstrate that it was a consented relationship between the parties. Counsel submitted that it would appear from her complaint that she continued to have relationship with the accused over a quite long period of time. She never lodged any complaint to police. After about four months from the alleged date of occurrence, she lodged a complaint in the Court of the Sub-Divisional Judicial Magistrate, Amarpur bringing false and unfounded allegations against the accused petitioner with an ulterior motive. Counsel contended that the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety would not prima facie constitute a charge of rape against the petitioner because the victim was admittedly at her consenting age and as per her version she lived in a relationship with the accused for about four months prior to filing of her complaint. Counsel contends that in her complaint the petitioner has clearly stated that after the first incidence on 15.