Gathum China Demudu vs The State Of Andhra Pradesh
2022 Latest Caselaw 4612 AP

           HON'BLE SRI JUSTICE RAVI CHEEMALAPATI

            CRIMINAL PETITION No.4532 of 2022

ORDER:-

     This Criminal Petition is filed under Sections 437 & 439 of

the Code of Criminal Procedure, 1973 ( for short, 'Cr.P.C.'),

seeking bail, by the petitioner/sole accused in Cr.No.129 of

2022 of Devarapalli Station, Visakhapatnam District (present

Anakapalli District), registered for the offence punishable under

Sections 376 and 417 of Indian Penal Code.


2.   The case of the prosecution, in brief, is that the accused

on the pretext of marrying sexually exploited the de facto

complainant for the last seven (07) years and on 26.05.2022,

the accused took the de facto complainant to his house and had

sexual intercourse with her and on 27.05.2022 at 6.00 a.m. he

went out and did not return. Later, the accused, phoned up and

intimated that he don't marry her. Basing on the complaint of

the de facto complainant, the present crime has been registered.


3.   Heard Sri Dasari SVVS Prasad, learned counsel for the

petitioner, and Sri Soora Venkata Sainath, learned Special

Assistant Public Prosecutor for the respondent-State.

4. Sri Dasari SVVS Prasad, learned counsel for the

petitioner, in elaboration, contends that a glance at the report

would make it clear that there has been consensual sexual

intercourse between the petitioner and the de facto complainant

for more than seven (07) years. Thus, the offence punishable

under Section 376 of I.P.C. is not made out against the accused.

In support of his contention, he relied on the decision in Ansaar

Mohammad vs. State of Rajasthan & Another1. The relevant

portion of the said decision relied on by the learned counsel is

extracted hereunder:

"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."

The learned counsel would further submit that the

petitioner has been languishing in jail since 06.06.2022 and the

material part of the investigation is completed.

The learned counsel would further submit that the

Petitioner was employed as a BSF constable and in view of false

implication in this case he was suspended from his employment.

On the above contentions, the learned counsel for the

petitioner sought for grant of regular bail to the petitioner.

5. The learned Special Assistant Public Prosecutor would

contend that the accused has exploited the de facto complainant

by deceiving her that he would marry her and since consent

was given by the prosecutrix on misconception of fact, it cannot

at all be construed as a valid consent and thus the ingredient of

offence punishable under Section 376 of IPC are very much

present in this case. The learned Special Assistant Public

.2022 SCC OnLine SC 886

prosecutor in support of his contention has relied on the

decision in Anurag Soni v. State of Chhattisgarh2.

The learned Special Assistant Public Prosecutor would

further contend that 164 Cr.P.C. statement of the victim is to be

recorded and the investigation is in progress and if the

petitioner is released on bail, he may tamper with the

prosecution evidence and hamper with the process of

investigation.

On the above contentions, the learned Special Assistant

Public Prosecutor opposed the bail to the petitioner and prays to

dismiss the petition.

6. On perusal of the judgments relied on by the counsel, the

decision relied on by the learned Special Assistant Public

Prosecutor is not applicable to the facts of the case on hand and

the facts of the present case are somewhat similar to the facts of

the decision relied on by the learned counsel for the petitioner.

7. Taking into consideration the fact that there was consensual

relationship between the petitioner and the de facto complainant

for more than seven (07) years and keeping in view the fact that

the petitioner is in judicial custody since 06.06.2022 and

further keeping in view that the petitioner was employed as BSF

constable, this Court is inclined to grant bail to the petitioner.

The apprehension of the learned Special Assistant Public

Prosecutor is taken care of by imposing conditions.

.(2019) 13 SCC 1

7. Accordingly, this Criminal Petition is allowed. The petitioner

shall be released on bail on his executing a self bond for

Rs.25,000/- (Rupees twenty five thousand only) with two

sureties for a like sum each to the satisfaction of the Additional

Judicial First Class Magistrate, Chodavaram, Visakhapatnam

District.

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

House Officer, Devarapalli Police Station, once in a week i.e. on

every Sunday between 09.00 a.m. and 12.00 noon till filing of

charge sheet.

(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.

Further, the petitioner 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 bail and in such case prosecution shall move

appropriate application for such cancellation.

Miscellaneous applications, pending if any, shall stand

closed.

_______________________________ JUSTICE RAVI CHEEMALAPATI Date : 25.07.2022 RR

HON'BLE SRI JUSTICE RAVI CHEEMALAPATI

CRIMINAL PETITION No.4532 of 2022

Date : 25.07.2022

RR