Basavala Raj Kumar vs The State Of Andhra Pradesh
2022 Latest Caselaw 7059 AP

      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

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

2022(2) R.C.R. (Criminal) 698 : 2022 CriLJ 2289

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

2022 LiveLaw (SC) 599

2022 LiveLaw (SC) 599

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

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