Potnuru Gopala Krishna vs The State Of Andhra Pradesh
2022 Latest Caselaw 5165 AP

     THE HONOURABLE SRI JUSTICE RAVI CHEEMALAPATI

            CRIMINAL PETITION NO.5560 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 Pachipenta Police Station, Vizianagaram registered for the

offence punishable under Sections 417, 420, 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, 420, 376

IPC. Hence, the above crime was registered against the petitioner.


3.    Heard Sri R. Siva Sai Swarup, 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 contended that 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. He

further contended that only to harass the petitioner as he is

working as Assistant Sub Inspector of police, the present crime is

registered and in the event of his arrest, it will affect his
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employment and also his reputation in family and society will be

affected. Learned counsel for the petitioner in support of his case

placed Hon'ble Apex Court judgment in Dr.Dhruvaram Murlidhar
                                                         1
Sonar vs. The State of Maharashtra & Ors.

         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   if   the

petitioner is granted anticipatory bail, they 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 draw the attention of

this Court to Para No. 21 in Dr.Dhruvaram Murlidhar Sonar vs.

The State of Maharashtra & Ors. 2, Which reads as follows:


         "21.    ..........

                 .........

Thus, they were living together, sometimes at her house and sometimes at the residence of the appellant. They were in a relationship with each other for quite some time and enjoyed each other's company. It is also clear that they had been living as such for quite some time together. When she came to know that the appellant had married some other woman, she lodged the complaint. It is not her case that the complainant has forcibly raped her. She had taken a conscious decision after active application of mind to the things that had happened. It is not a case of a passive submission in the face of any psychological pressure exerted and there was a tacit consent and the tacit consent given by her was not the result of a misconception created in her mind. We are of the view that,

(2019) 18 SCC 191

(2019) 18 SCC 191

even if the allegations made in the complaint are taken at their face value and accepted in their entirety, they do not make out a case against the appellant. We are also of the view that since complainant has failed to prima facie show the commission of rape, the complaint registered under Section 376(2)(b) cannot be sustained."

7. Similarly the judgment of the Hon'ble Apex Court in

Ansaar Mohammad vs. The State of Rajasthan & Another3 to

para No.3 which reads as follows:

"3. 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".

9. A perusal of the complaint shows that, there is a consensual

relation between the petitioner and defacto complainant and in

view of 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 following

conditions.

10. 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 Pachipenta Police Station,

Vizianagaram, on the petitioner executing a self bond for

Rs.50,000/- (Rupees Fifty thousand only) with two sureties for a

2022 LiveLaw (SC) 599

like sum each to the satisfaction of the Station House Officer,

Pachipenta Police Station, Vizianagaram.

(ii) On release, the petitioner shall report before the Station

House Officer, Pachipenta Police Station, Vizianagaram, twice in a

month i.e. on every second Sunday and fourth Sunday between

10.00 am and 12.00 noon till filing of charge sheet.

(iii) 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.

(iv) 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.

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

THE HONOURABLE SRI JUSTICE RAVI CHEEMALAPATI

CRIMINAL PETITION NO.5560 OF 2022

Date : 16.08.2022

AG