[S. 376 IPC] Ori HC | Bail rejected subject to the plight of the victim and the probability of the accused tarnishing the dignity of the victim and her family

Orissa High Court: S. K. Panigrahi, J. dismissed the bail application as there was a clear possibility of further danger to the complainant by the accused.

The facts of the case are such that the petitioner lured the complainant into having physical relationship with her promising her to marry wherein she became pregnant twice, which was aborted and consent to marriage was denied by the family members of the petitioner. Hence, the complainant’s family fixed her marriage elsewhere consequent to which the petitioner posted personal photographs of the complainant along with him using fake Facebook IDs created in her name and mentioned that the complainant had a relationship with him but was marrying someone else. As a result of this, the complainant’s marriage was broken and she was defamed in society. The complainant lodged an FIR under Sections 376(1), 313, 294 and 506 of the Penal Code, 1860 i.e. IPC and Sections 66(E) and 67(A) of the Information Technology (Amendment) Act, 2008 and was thereby arrested. The instant petition has been filed under Section 439 Criminal Procedure Code seeking bail.

Counsel for the petitioners Mr N Mishra submitted that the present case has been foisted in a fabricated manner to harass the present petitioner. Hence, the petitioner should be granted bail.

The Court relied on judgment Anurag Soni v. State of Chhattisgarh, (2019) 13 SCC 1 and observed that if an accused from the very beginning has given a promise of marriage without any intention to fulfil that promise and in lieu of such promise that the accused will marry her, she gave her consent for sexual intercourse with the accused, then such consent would not amount to valid consent. It shall come within the ambit of the misconception of fact under Section 90 of IPC. Thus, such consent shall not excuse the accused from the charges for the offence of rape under Section 375 of IPC.

The Court however observed that the law is well settled that consent obtained on a false promise to marry is not a valid consent. Since the framers of the law have specifically provided the circumstances when ‘consent’ amounts to ‘no consent’ in terms of Section 375 of IPC, consent for the sexual act on the pretext of marriage is not one of the circumstances mentioned under Section 375 of IPC. Hence, the automatic extension of provisions of Section 90 of IPC to determine the effect of consent under Section 375 of IPC deserves a serious relook. The law holding that false promise to marriage amounts to rape appears to be erroneous, however, the plight of the victim and the probability of the accused tarnishing the dignity of the victim and her family need to be looked at while deliberating on the question of bail.

The Court thus held “The possibility of coercion of victim’s family, repetition of similar type of offence and flee from justice cannot be ruled out in the present case. Therefore, the petitioner does not deserve to be granted bail.”

In view of the above, application was dismissed.[Rinku Pradhan v, State of Odisha, BLAPL No.6629 of 2020, decided on 05-03-2021]


Arunima Bose, Editorial Assistant has reported this brief.

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