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2024 Supreme(Online)(MP) 51418
IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE VISHAL DHAGAT ON THE 5th OF MARCH, 2024 MISC. CRIMINAL CASE No. 9360 of 2024 BETWEEN:- SEKH FAISHAL KHAN @ FAISHAL KHAN S/O SHRI IRSHAD KHAN, AGED ABOUT 35 YEARS, OCCUPATION: CONSTABLE R/O 51 NEAR HEAD POST OFFICE DISTRICT SAGAR (MADHYA PRADESH) .....APPLICANT (BY SHRI AKASH SINGHAI - ADVOCATE) AND THE STATE OF MADHYA PRADESH THROUGH POLICE STATION MAHILA THANA DISTRICT SAGAR (MADHYA PRADESH) .....RESPONDENT (BY SHRI D. K. PAROHA - GOVT. ADVOCATE AND SHRI L. C. CHOURASIYA - ADVOCATE FOR OBJECTOR) This application coming on for admission this day, the court passed the following:
Akash Singhai,Advocate General
A false promise of marriage vitiates consent to sexual intercourse and can amount to rape under Section 376 IPC.
Headnote:
ANTICIPATORY BAIL - RAPE - FALSE PROMISE OF MARRIAGE - CONSENT - SECTION 376 IPC - SECTION 438 CRPC
Fact of the Case:
The applicant, a police constable, was accused of raping the prosecutrix after making a false promise of marriage. The prosecutrix continued to have a physical relationship with the applicant even after the alleged rape and became pregnant, which was later aborted.
Finding of the Court:
The court found that the prosecutrix had consented to the physical relationship after the false promise of marriage and that the applicant had not absconded from law.
Issues: Whether the applicant was entitled to anticipatory bail in the case of rape under Section 376 IPC after making a false promise of marriage and whether the prosecutrix's consent was valid.
Ratio Decidendi: The court held that the prosecutrix's consent to the physical relationship was vitiated by the false promise of marriage and that the applicant was entitled to anticipatory bail considering the facts and circumstances of the case.
Final Decision: The court allowed the anticipatory bail application and directed the applicant to join the investigation immediately and cooperate with the investigating agency.
ORDER
1. This is first application filed by applicant under Section 438 of the Code of Criminal Procedure for grant of anticipatory bail relating to Crime No.
18/2024 registered at Police Station- Mahila Thana District- Sagar (MP) for the offences under Sections 366, 376, 376(2)(n) and 313 of the IPC.
2. Learned counsel appearing for the applicant submitted that applicant is Police Constable in Govt. service. There is no likelihood that he will abscond from law. It is further submitted that there was love affair between applicant and prosecutrix. Applicant has not married to prosecutrix and got married to some other woman. Due to said reason, false FIR has been lodged against him. In these circumstances, applicant may be released on anticipatory bail.
3 . Learned Government Advocate appearing for the State as well as counsel appearing for the objector have opposed the anticipatory bail application and submitted by them false promise of marriage was made by the applicant and thereafter he established physical relationship with the prosecutrix.
Had there been no false promise of marriage prosecutrix would not have given consent for physical relationship. In these circumstances, offence under Section 376 of the IPC is made out.
4. Heard learned counsel for the parties.
5. After making false promise of marriage, prosecutrix is said to have been raped. Thereafter, prosecutrix continued to go around with the applicant and many times physical relationship was established. Prosecutrix also became pregnant and was aborted.
6. Considering the aforesaid facts and circumstances of the case, anticipatory bail application is allowed.
7. It is directed that in the event of arrest of applicant by the police in the aforesaid crime, applicant shall be released on bail on his furnishing personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousand only) with one surety in the like amount to the satisfaction of the Arresting officer (Investigating Officer) for his regular appearance before the Police during the investigation or before the Court during trial.
8. The applicant is directed to join the investigation immediately and co-operate with the investigating agency. He will further abide by the condition enumerated in sub-section (2) of Section 438 of the Cr.P.C. Certified copy as per rules.
(VISHAL DHAGAT) JUDGE AD/ JUDGE AD/
