THE HONOURABLE SRI JUSTICE RAVI CHEEMALAPATI
CRIMINAL PETITION NO.5610 OF 2022
ORDER:-
This Criminal Petition is filed under Section 438 of the Code
of Criminal Procedure, 1973 (for short, 'Cr.P.C.'), seeking
anticipatory bail, by the petitioner/sole accused in Cr.No.81 of
2022 of Maharanipeta Police Station, Vishakhapatnam registered
for the offence punishable under Sections 417, 376 of the Indian
Penal Code, 1860 (for short 'IPC').
2. The case of the prosecution, in brief, is that accused made
false promises to defacto complainant that he loves her, intends to
marry her and induced her into a physical relationship, which
would amount to cheating and rape under Sections 417, 376 IPC.
Hence, the above crime was registered against the petitioner.
3. Heard Sri Ramachandra Rao Gurram, learned counsel for the
petitioner and learned Special Assistant Public Prosecutor for the
respondent-State.
4. Learned counsel for the petitioner, in elaboration, contended that the petitioner/Accused was falsely implicated in the present crime and reading of the entire complaint it appears that it is totally with the consent of a complainant and it is nothing but a consensus sex. Hence, Section 376 of IPC does not attract. Learned counsel for the petitioner further contended that the petitioner has already preferred a bail application vide bearing Crl.M.P.No. 2460 of 2022 which was dismissed by the trial court on the ground that the investigation is pending and the presence of 2 the petitioner/accused is required and if the petitioner is released, it would affect the investigation. He further contended that only to harass the petitioner as he is working in Army, the present crime is registered and in the event of his arrest, he will lose his job. Learned counsel for the petitioner in support of his case placed a judgment Ansaar Mohammad vs. The State of Rajasthan & Another1.
On the above contentions, the learned counsel for the petitioner sought for grant of anticipatory bail to the petitioner.
5. Learned Special Public Prosecutor submits that investigation is in progress and if the petitioner is granted anticipatory bail, he may hamper the process of investigation and tamper with the prosecution evidence. Hence, opposed the petition and prayed for dismissal of the same.
6. Learned counsel for the petitioner draws the attention of this Court to para No.4 in the judgment of the Hon'ble Apex Court in Ansaar Mohammad vs. The State of Rajasthan & Another2, which reads as follows:
"4. In view of the said fact, the complainant has willingly been staying with the appellant and had the relationship. Therefore, now if the relationship is not working out, the same cannot be a ground for lodging an FIR for the offence under Section 376(2)(n) IPC".
7. Learned counsel for the petitioner further submits that the petitioner is working in Army in Jammu and Kashmir, as such it 1 2022 LiveLaw (SC) 599 2 2022 LiveLaw (SC) 599 3 may not be possible to appear before police station except for investigation purpose.
8. A perusal of the complaint shows that there is a consensual relation between the petitioner and defacto complainant and in view of the submissions of learned counsel for the petitioner and the judgment referred by learned counsel for the petitioner, this Court is inclined to grant anticipatory bail to the petitioner/sole Accused, however the apprehension of the learned Special Assistant Public Prosecutor is taken care of by imposing certain conditions.
9. Accordingly, this Criminal Petition is allowed. The petitioner shall be released on bail in the event of his arrest in connection with Cr.No.81 of 2022 of the Maharanipeta Police Station, Visakhapatnam, on the petitioner executing a self bond for Rs.50,000/- (Rupees Fifty thousand only) with two local sureties for a like sum each to the satisfaction of the Station House Officer, Maharanipeta Police Station, Visakhapatnam.
(ii) The petitioner shall not make any attempt to tamper with the prosecution evidence. He shall make himself available to the investigating officer whenever required by them to facilitate proper investigation in this case.
(iii) The petitioner shall not directly or indirectly contact the complainant or any other witnesses under any circumstances and any such attempt shall be construed as an attempt of influencing the witnesses and shall not tamper the evidence and shall co- operate with the investigation.
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Further, the petitioners shall scrupulously comply with the above conditions and if there is breach of any of the above conditions, it will be viewed seriously and it also entails cancellation of the bail and in such case prosecution shall move appropriate application for such cancellation.
It is made clear that this order does not, in any manner, limit or restrict the rights of the police or the investigating agency from further investigation as per law and the finding in this order be construed as expression of opinion only for the limited purpose of considering bail in the above Criminal Petition and shall not have any bearing in any other proceedings.
Consequently, miscellaneous applications pending, if any, shall stand closed.
___________________________ JUSTICE RAVI CHEEMALAPATI Date : 16.08.2022 AG 5 40 THE HONOURABLE SRI JUSTICE RAVI CHEEMALAPATI CRIMINAL PETITION NO.5610 OF 2022 Date : 16.08.2022 AG