Case BriefsHigh Courts

Calcutta High Court: A Division Bench of Sanjib Banarjee and Kausik Chanda, JJ., granted bail to a rape accused taking note of the submission that the accused and the victim intend to get married in immediate future.

The accused claimed that though the alleged victim was a minor when the accused may have had sexual relationship with her, the victim has now attained majority. It was submitted that the accused and the victim intend to get marry in the immediate future.

Considering this submission, the High Court granted bail to the accused, subject to the Investigating Officer satisfying himself upon conversing with the victim as to her understanding of the situation.

It was further directed that in the event the marriage does not take place within the next 3 months or there is any further complaint from the victim against the accused within 6 months of the marriage, the bail may be annulled.

Subject to the above, the accused was directed to be released on bail upon furnishing a security bond of Rs 10,000 and producing a personal release bond of equivalent value. [Sopikul, In Re, 2020 SCC OnLine Cal 838 , decided on 16-4-2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of Sunil B. Shukre and Madhav J. Jamdar, JJ., dismissed the criminal application filed with regard to quashing of an FIR registered for an offence punishable under Section 376(2) (n) [Punishment for Rape] of Penal Code, 1860.

Background

Applicant had exclusively expressed his love for respondent 2 seduced her into having a sexual relationship with him and did have sexual intercourse on many occasions. The affair that was going clandestinely between applicant and respondent 2 got exposed when one Sheikh Biram who as described by respondent 2 is her servant saw what was going on between applicant and respondent 2. He later threatened to disclose the same to the mother of respondent 2, and when the same happened applicant gave an express promise of marriage to respondent 2 but did not fulfil the same.

Applicant’s counsel M. Badar, submitted that in such matters Court should take the allegations at their face value and without adding anything thereto or subtracting anything therefrom, should consider if the allegations disclose the commission of any offence by the accused. Further, he relied on the Supreme Court’s decision in Dhruvaram Murlidhar Sonar v. State of Maharashtra, 2018 SCC OnLine SC 3100.

Further, the Counsel adds that, there was no promise of marriage given by the applicant to the respondent at any point of time and hence no question of any breach of promise. He states that whatever happened was consensual in nature.

If allegations made by respondent 2 against the applicant are considered at their face value, a prima facie impression is created that respondent 2 agreed to have sexual relation with the applicant only upon her believing as love expressed by the applicant for respondent 2 to be genuine.

It is a case wherein the temptation to enter into such relationship was given by applicant to respondent 2 and respondent 2 was initially unwilling to fall prey to the advances made towards hereby the applicant. Misconception had been created not because of giving a false promise of marriage but because of giving false assurance to respondent 2 that applicant had his genuine and exclusive love and whenever time would come, would support her wholeheartedly.

In Supreme Court’s decision of Dhruvaram Murlidhar Sonar v. State of Maharashtra, 2018 SCC OnLine SC 3100, the distinction between rape and consensual sex was talked about,

“… Court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the later falls within the ambit of cheating or deception.”

“…to have sexual intercourse on account of her love and passion for the accused and not solely on

account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently.”

“If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape.”

Thus, in the present case, prima facie, malafide intention and clandestine motive of the applicant could be seen by his attempt to seduce respondent 2 into having a sexual relationship with him when he, in spite of her reluctance expressed initially, gave such an assurance as was sufficient to misconceive it as genuine.

Supreme Court’s decision of Dhruvaram Murlidhar Sonar v. State of Maharashtra, 2018 SCC OnLine SC 3100 assists respondent 2 rightly in the present case.

Therefore, in view of the above Court found no merit in the application and dismissed the same. [Mohammed Aamir Ansari v. State of Maharashtra, 2020 SCC OnLine Bom 320, decided on 12-02-2020]

Case BriefsHigh Courts

Bombay High Court: The Bench of Mridula Bhatkar, J. quashed and set aside the order passed by Additional Sessions Judge,  refusing to discharge the petitioner/accused from offence punishable under Section 377 of Penal Code, 1860.

The present petition was filed in respect of challenging the order passed by the Metropolitan Magistrate, Girgaon, Mumbai rejecting the discharge of petitioner under Section 377 IPC.

Petitioner in the present case is a co-accused prosecuted under Sections 498-A, 377, 323, 504  r/w Section 34 of IPC. The facts of the case are that the complainant is married with a son of 6 to 7 years old. Complainant states that after 4-5 years of marriage she realised that her husband was gay, and on realising that she refused the parallel relationship of her husband. She also stated that she was ill-treated by her husband due to which she had left for her father’s house but later agreed to come back to her husband’s place when she again witnessed no change and continuation of the gay relationship of her husband with different males.

On realising the fact that her husband was not ready to stop his relationship with the petitioner/accused and being ill-treated a number of times, she finally lodged an FIR. Later, the Additional Sessions Judge partly allowed the revision application but maintained the charge under Section 377 IPC against the accused. Aggrieved by the same, the present petition was filed.

High Court while placing reliance on the Apex Court’s judgment in Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, held that though the ground for divorce could be the extramarital consensual sexual relationship as cruelty to the complainant, but it does not constitute an offence under Section 377 IPC, because both are adults and had a consensual sexual relationship.

Thus, in the present case, no victim exists and the order of the Additional Sessions Judge is quashed. [Daniel Crasto v. State of Maharashtra, 2019 SCC OnLine Bom 188, dated 30-01-2019]


Note: The 5-Judge Constitution Bench comprising of CJ Dipak Misra and R.F. Nariman, A.M. Khanwilkar, Dr D.Y. Chandrachud and Indu Malhotra, JJ. in their landmark judgment held Section 377 IPC unconstitutional insofar it criminalised gay sex between consenting adults. [2018 SCC OnLine SC 1350]