THE HONOURABLE SRI JUSTICE RAVI CHEEMALAPATI
CRIMINAL PETITION NO.6519 OF 2022
ORDER:
This Criminal Petition is filed under Section 438 of the Criminal Procedure Code („Cr.P.C.‟ in short), seeking pre-arrest bail, by the petitioner/Accused No.1 in Crime No.546 of 2022 of Kancharapalem Police Station, Visakhapatnam District, registered for the offences punishable under Sections 417, 376 and 506 of the Indian Penal Code, 1908 („IPC‟ in short)
2. The case of the prosecution, in brief, is that the de facto complainant, due to differences between her and her husband, is living separately. The accused taking advantage of the same, on the pretext of love and marriage, exploited her sexually and when she demanded him to marry her, he refused and threatened to kill her. Hence, the above crime was registered against the petitioner.
3. Heard Sri R.K. Acharyulu, learned Counsel for the petitioner and Sri Sravan Kumar Naidana, learned Special Assistant Public Prosecutor for the respondent-State.
4. Learned counsel for the petitioner, in elaboration to what has been raised in the grounds, contended that a plain reading of the complaint do not attract any charges much less Section 376 of IPC. It is stated that if 2 the allegations of the complaint are taken on its face value, it shows consent of the de facto complainant and as the live-in relationship between the petitioner and the de facto complaint has not worked out, the present complaint is made by the de facto complainant. In such circumstances, if the petitioner is arrested in the present crime, his reputation in his family circles will be effected. The petitioner has not committed any offence much less the alleged offence. It is stated that the petitioner is ready and willing to abide by the conditions that may be imposed by this Court.
In support of his contention he relied on the decision of the Hon‟ble Supreme Court in Shajan v. State of Kerala1 and draw the attention of this Court to paragraph No.5 of the said judgment, which reads as follows:
"5. We find considerable force in the submission made by the counsel for the appellant. It is an admitted fact that the parties, namely the appellant and the prosecutrix/respondent no.2 were living together for quite some time. The factum of registration of Ext.P-1, being the marriage agreement, also indicates the agreed terms between the parties. It is nobody‟s case that the agreement was forced on the prosecutrix/respondent No.2, as even the High Court was pleased to observe that it was done voluntarily."
He also contended that the petitioner filed Crl.M.P.No.2619 of 2022, before the Sessions Court, seeking pre-arrest bail and the same was dismissed by the Sessions Court on 14.07.2022, on the ground that 1 2022(2) R.C.R. (Criminal) 698 : 2022 CriLJ 2289 3 investigation is at initial stage. It is stated that now substantial part of the investigation is completed and as such prayed to consider this application for pre-arrest bail.
5. On the other hand learned Special Assistant Public Prosecutor opposed the application and contended that the FIR is not an encyclopedia to contain all the details and in the event if bail is considered, the petitioner may not co-operate with the investigation. Accordingly, prayed for dismissal of the same.
6. Perusal of the report prima facie shows that the petitioner and the de facto complainant are in live-in relationship for quite some time and since their relationship is not working out, the present FIR has been registered. In Ansaar Mohammad v. The State of Rajasthan2 the Hon‟ble Supreme Court has categorically held that if relationship is not working out, the same cannot be a ground for getting an FIR registered under Section 376 of IPC.
Taking submissions of both the learned counsel and the material available on record into consideration and keeping in view the judgment of the Hon‟ble Supreme Court in Ansaar Mohammad v. The State of Rajasthan3 and as substantial part of the investigation is completed, this Court is inclined to grant pre-arrest bail to the petitioner, however by duly 2 2022 LiveLaw (SC) 599 3 2022 LiveLaw (SC) 599 4 taking the apprehensions of the learned Special Assistant Public Prosecutor into consideration, on the following conditions:
(i) The petitioner shall be released on pre-arrest bail in the event of his arrest in Crime No.546 of 2022 of Kancharapalem Police Station, Visakhapatnam District, on his executing self bond for Rs.25,000/- (Rupees twenty five thousand only) with two sureties for the like sum each to the satisfaction of the Station House Officer, Kancharapalem Police Station, Visakhapatnam District;
(ii) The petitioner shall appear before the Station House Officer, Kancharapalem Police Station, Visakhapatnam District, once in a week i.e. on every Sunday between 10 a.m. and 12.00 noon till filing of the charge sheet;
(iii) The petitioner shall also co-operate with the investigation and shall appear before the Investigation Officer as and when he is called for investigation; and
(iv) The petitioner shall not directly or indirectly contact or threaten the de facto complainant or the witnesses in this regard 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.
Further, the petitioner shall scrupulously comply with the above conditions and breach of any of the above conditions will be viewed seriously and prosecution is at liberty to move an application for cancellation of the bail.
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 findings in this order be construed as 5 expression of opinion only for the limited purpose of considering the bail in the above crime and shall not have any bearing in any other proceedings.
Accordingly, the Criminal Petition is allowed. Miscellaneous applications, pending if any, shall stand closed.
___________________________ JUSTICE RAVI CHEEMALAPATI 15th September, 2022.
GBS