2020 (5) TMI 744 - HC - Indian Laws

Grant of Anticipatory bail - on the pretext of marriage alleged rape has been committed by applicant - Whether after being declared as an absconder under Section 82/83 of Cr.P.C. or by police through Farari Panchnama or through declaration of cash award for apprehension of accused his application under Section 438 of Cr.P.C. seeking anticipatory bail before High Court or Sessions Court is maintainable or not? - HELD THAT - It is to be kept in mind that Personal Liberty of an individual as ensured by Section 438 of Cr.P.C. is embodiment of Article 21 of Constitution of India in Cr.P.C. Therefore scope and legislative intent of Section 438 of Cr.P.C. is to be seen from that vantage point. It appears that on false promise of marriage initially physical intimacy developed and later on both entered into wedlock but it is grievance of prosecutrix that he is already a married person. Certain bank transactions have already been referred and documented which indicate that they were in proximity. As submitted both the parties earlier tried to settle the matter by filing petition under Section 482 of Cr.P.C. bearing No.930/2020. Therefore both matured individuals waited the consequences of their decisions and both lived some days together comfortably. Consensual proximity of Body and Soul cannot be used as a weapon to wreak vengeance at a later point of time when Body and Soul drift apart. The bail application is allowed.

Summary

Issues Involved:
1. Whether the application for anticipatory bail under Section 438 of Cr.P.C. is maintainable for an individual declared as an absconder or proclaimed offender.
2. Whether anticipatory bail can be granted after the filing of the charge-sheet.
3. The merit of the anticipatory bail application in the context of the specific case facts and allegations.

Issue-Wise Detailed Analysis:

1. Maintainability of Anticipatory Bail for Absconders:
The court examined whether an individual declared as an absconder or proclaimed offender under Sections 82 and 83 of Cr.P.C. can seek anticipatory bail under Section 438 of Cr.P.C. The court referred to the Constitution Bench judgment in Gurbaksh Singh Sibbia vs. State of Punjab, which emphasized the importance of personal liberty and the discretionary power of courts to grant anticipatory bail. The court noted that the judgments in Lavesh vs. State (NCT of Delhi) and State of M.P. vs. Pradeep Sharma did not bar the maintainability of anticipatory bail applications for absconders but focused on the merit of such applications. The court concluded that anticipatory bail applications are maintainable even for individuals declared as absconders, subject to the court's discretion based on the merits of the case.

2. Anticipatory Bail Post Charge-Sheet Filing:
The court referred to several judgments, including Bharat Chaudhary vs. State of Bihar and Ravindra Saxena vs. State of Rajasthan, which held that anticipatory bail can be granted even after the filing of the charge-sheet. The court emphasized that Section 438 of Cr.P.C. does not impose any restriction on granting anticipatory bail after the charge-sheet is filed. The Constitution Bench in Sushila Aggarwal vs. State (NCT of Delhi) reaffirmed that anticipatory bail can be granted at any stage before arrest, thus supporting the maintainability of anticipatory bail applications post charge-sheet filing.

3. Merits of the Anticipatory Bail Application:
The court considered the specific facts and allegations in the case. The applicant and the prosecutrix were in their forties and had entered into a wedlock. The prosecutrix alleged rape on the pretext of marriage, and the applicant had transferred money to her, indicating a relationship. The court noted that the allegations of rape on the pretext of marriage did not constitute rape if the relationship was consensual. The court also considered that the applicant had no criminal antecedents, was willing to cooperate with the investigation, and had attempted to settle the matter previously. The court found that the applicant deserved consideration for anticipatory bail, emphasizing that consensual relationships should not be used to wreak vengeance.

Conclusion:
The court allowed the anticipatory bail application, directing the applicant to be released on bail in case of arrest upon furnishing a personal bond. The court imposed conditions to ensure the applicant's cooperation with the investigation and to prevent any harassment or embarrassment to the prosecutrix. The court acknowledged the assistance provided by the amicus curiae in reaching its decision.