Pamarthi Chaitanyeswar Ganesh vs The State Of Andhra Pradesh
2022 Latest Caselaw 6155 AP

Citation : 2022 Latest Caselaw 6155 AP
Judgement Date : 6 September, 2022

Andhra Pradesh High Court - Amravati

Pamarthi Chaitanyeswar Ganesh vs The State Of Andhra Pradesh on 6 September, 2022

     THE HON'BLE SRI JUSTICE RAVI CHEEMALAPATI

          CRIMINAL PETITION NO.5105 of 2022

ORDER:-

      This Criminal Petition is filed under Sections 438 of the

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

petitioner seeking pre-arrest bail.


2.    Crime No.150 of 2022 of Women Police Station,

Vizianagaram is registered for the offences punishable under

Sections 376, 417, 420 and 354D IPC. The petitioner herein

was arrayed as accused.


3.    The case of the prosecution in brief is that when the de

facto complainant doing M.D. General Medicine in AIMS

Nellimarla, her senior i.e., the petitioner herein followed and

loved her proposing to marry her and in the month of July,

2021, when she went to the flat of the petitioner, he had

physical intercourse with her forcibly stating that he would

marry her. Thereafter, the petitioner went to his parents

stating that he will take consent of his parents for their

marriage but when she telephoned him, he talked with her as

unknown and refused to marry her, thereby the petitioner

committed the alleged offences, hence, the said crime was

registered against the petitioner.
                               2


4.   Heard Sri Raja Reddy Koneti, learned counsel for the

petitioner, learned Special Assistant Public Prosecutor for the

1st respondent-State and Sri Veera Reddy, learned Senior

Counsel for the 2nd respondent.

5. Learned counsel for the petitioner in elaboration to what

has been stated in the grounds contended that even if the

allegations in the complaint are taken in their entirety, prima

facie they do not constitute any offence much less the alleged

offences. He further contended that Section 420 IPC is not

attracted to the present case as there is no property

involvement. Learned counsel further contended that there is

no rape in the present case to fall within the meaning Section

375 IPC because there is a consent in the present case

between the petitioner and the de facto complainant.

5.1. In support of his contention, learned counsel for

the petitioner relied on the judgment of the Hon'ble Supreme

Court in the case of the Dr.Dhruvaram Murlidhar Sonar vs.

State of Maharastra in S.L.P.(Criminal)No.6532 of 2018 to

show that the petitioner and the victim are in longer

relationship and in the said circumstances, the provision of

Section 376 IPC does not arise. He also relied on the

judgment of the Hon'ble Supreme Court in the case of Phool

Singh vs. State of Madhya Pradesh1 wherein it is held that

"...it can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him."

Accordingly, prayed to grant pre-arrest bail to the

petitioner.

6. On the other hand, the victim/2nd respondent chosen to

put her appearance through her counsel and opposed to grant

pre-arrest bail and learned Senior Counsel Sri Veera Reddy,

representing Ms.Anvesha, learned counsel for the 2nd

respondent, contended that this is a heinous offence. Learned

Senior Counsel further contended that the FIR and statements

recorded under Section 161 Cr.P.C and Section 164 Cr.P.C are

taken into consideration the alleged rape is against the will of

the 2nd respondent as such the contention of the petitioner

that there is a consent of the de facto complainant/2nd

respondent is false. The plain reading of the complaint and

the statements goes to show that intercourse was against her

will and the petitioner has committed the alleged offences as

such it is not a fit case to grant pre-arrest bail.

(2022) 2 Supreme Court Cases 74

6.1. In support of his contention he relied on the

judgment of the Hon'ble Supreme Court in the case of

Anurag Soni vs. State of Chattisgarh2 and draw the

attention of this Court at para 12 which reads as follows:

"12. The sum and substance of the aforesaid decisions would be that if it is established and proved that from the inception the accused who gave the promise to the prosecutrix to marry, did not have any intention to marry and the prosecutrix gave the consent for sexual intercourse on such an assurance by the accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact as per Section 90 IPC and, in such a case, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined under Section 375 IPC and can be convicted for the offence under Section 376 IPC."

7. On the other hand, learned Special Assistant Public

Prosecutor contended that the application under Section 438

Cr.P.C is not maintainable for the nature of this heinous

offence and there is no scope to grant bail to the petitioner

and read over Section 161 Cr.P.C statement and Section 164

Cr.P.C statement of the victim and prayed to dismiss the pre-

arrest bail application of the petitioner.

8. As per the directions of this Court upon an application

moved by the prosecution in I.A.No.2 of 2022, for appearance

(2019) 13 SCC page 1

of the petitioner/accused, the petitioner/accused appeared

before this Court, today.