Andhra Pradesh High Court - Amravati
C.Narayanaswamy Kotha Reddy vs State Of Andhra Pradesh on 21 June, 2022
THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI
CRIMINAL PETITION No.3998 of 2022
ORDER:
Accused Nos.1 and 2 in Crime No.49 of 2022 of Ramakuppam Police Station, Chittoor, filed the above criminal petition under Section 437 and 439 of Code of Criminal Procedure, 1973 (for short "Cr.P.C") seeking regular bail.
2. The de facto complainant lodged a complaint on 25.4.2022 stating that she belongs to SC-Mala Community and has been working in Balaji Milk Dairy in Vijilapuram. Petitioners/A-1 & A-2 are friends; that A-1 with the support of A-2 harassed the de facto complainant to fulfill his lust; that A-2 stated that SC-Community people are to living together with them and if anything happens, he would take care of it; that A2 also threatened the complainant with dire consequences; that with the support of A-2, A-1 developed extra-marital relationship with complainant and they are living together for the last two years. A-1 promised to marry de facto complainant, continued to cohabitate with her. De facto complainant became pregnant and she went to the house of A-1, where his two wives abused her by touching caste. Basing on the said complaint, police registered the above crime for the offences punishable under Sections 354A, 376 (1), 417, 420, 506 r/w 34 of the Indian Penal Code, 1860 (for short "IPC") and Sections 3(1)(r), 3(1)(s), 3(1)(w)(ii), 3 (2)(v), 3(2)(va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short "SC ST Act").
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As per the remand report, A-1 and A-2 were arrested on 02.05.2022 at 1.00 p.m. and 161 Cr.P.C., statements of L.Ws.1 to 14 were recorded by audio and video electronic means.
3. Heard Sri N.V.Sumanth, learned counsel for the petitioners and Sri A.V.Sainath, learned Special Assistant Public Prosecutor for State.
4. Learned counsel for the petitioners would submit that petitioners never cheated the complainant. Going by the contents of complaint, A-1 and the complainant are living together for the last two years, as such the ingredients of Sec 376 do not attract. He would submit that consensual relationship between the parties would not constitute the offence under Section 376 of IPC. He would submit that A-1 is aged about 57 years and complainant, divorcee, is resident of the same village. He would further submit that RFSL report is received and investigation is almost completed and the petitioners are languishing in jail from 02.05.2022 and he prayed the Court to grant bail.
5. Learned counsel for the petitioner relied on the following decisions rendered by Hon'ble Apex Court:
(1) Dr.Dhruvaram Muralidhar Sonar Vs. State of Maharastra and others1.
(2) Shivashankar alias Shiva Vs. State of Karnataka2.
(3) Maheswar Tigga Vs. State of Jharkhand3.
6. Per contra, learned Special Assistant Public Prosecutor would submit that consent obtaining on the ground of fraud and 1 (2019) 19 SCC 191 2 (2019) 18 SCC 204 3 (2020) 10 SCC 108 3 false promise would constitute an offence under Section 376 of IPC. He would submit that A-1 is aged about 57 years and he is already having two wives. Developing extra-marital relationship with the de facto complainant and inducing her with a false promise to marry her, amounts to fraud and right from the beginning, A-1 had that intention and hence A1 committed the offence under Sec 376 IPC and A2 supported A1. He would submit that though major portion of investigation is completed, if the petitioners are enlarged on bail, they will influence the witnesses and he thus, prayed the Court to dismiss the petition.
7. I have given my anxious consideration and perused the record and instructions. The application is filed under Section 437 and 439 Cr.P.C. seeking release of the petitioners on bail. The Court had to take into consideration several aspects, while granting bail, viz., gravity of crime, character of the evidence, position and status of the accused with reference to victim and witnesses, likelihood of accused fleeing away from justice and repeating the offence, possibility of his tampering with the witnesses and obstructing the course of justice etc.
8. In Dataram Singh vs. State of Uttar Pradesh and Ors.4, the Hon'ble Apex Court held thus:
6. The historical background of the provision for bail has been elaborately and lucidly explained in a recent decision delivered in Nikesh Tarachand Shah v. Union of India [2017 (13) SCALE 609] going back to the days of the Magna Carta. In that decision, reference was made to Gurbaksh Singh Sibbia v. State of Punjab [(1980) 2 SCC 565] in which it is observed that it was held way back in Nagendra v. King-Emperor [AIR 1924 Cal 476] that bail is 4 (2018) 3 SCC 22 4 not to be withheld as a punishment. Reference was also made to Emperor v. Hutchinson [AIR 1931 All 356] wherein it was observed that grant of bail is the Rule and refusal is the exception.
The provision for bail is therefore age-old and the liberal interpretation to the provision for bail is almost a century old, going back to colonial days.
7. However, we should not be understood to mean that bail should be granted in every case. The grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.
9. In P.Chidambaram vs. Central Bureau of Investigation5, the Hon'ble Apex Court at Para-22 held thus:
"22. The jurisdiction to grant bail has to be exercised on the basis of the well-settled principles having regard to the facts and circumstances of each case. The following factors are to be taken into consideration while considering an application for bail:(i) the nature of accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution; (ii) reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses;
(iii) reasonable possibility of securing the presence of the Accused at the time of trial or the likelihood of his abscondence; (iv) character behaviour and standing of the Accused and the circumstances which are peculiar to the Accused; (v) larger interest of the public or the State and similar other considerations (vide Prahlad Singh Bhati v. NCT, Delhi and Anr. [(2001) 4 SCC 280)]."
10. In Kalyan Chandra Sarkar vs. Rajesh Ranjan and Ors.6, the Hon'ble Apex Court held at Para-11 that - 5 (2020) 13 SCC 337 6 (2004) 7 SCC 528 5 "The law in regard to grant or refusal of bail is very well settled. The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind.
It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are,
(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence;
(b) Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
(c) Prima facie satisfaction of the Court in support of the charge."
11. In Dr.Dhruvaram Muralidhar Sonar's case, relied upon by the counsel for the petitioner, the facts are as follows:
The petitioner therein filed petition under Section 482 of Cr.P.C., to quash the proceedings in F.I.R No.59 of 2000, registered for the offences under Sections 376(2)(b), 420 r/w 34 of IPC and Section 3(1)(x) of SC ST Act. The facts in the said case are that appellant therein is working as Medical Officer in Primary Health Centre and the complainant is working as Assistant Nurse. As per the contents of F.I.R., she had fell in love with appellant and that she needed a companion as she is a widow and hence, they started living together as husband and wife. The appellant therein acted as 6 if he has married her and maintained a physical relationship with her, however he failed to marry her as promised.
12. Learned counsel for petitioner also placed reliance upon Shivashankar alias Shiva's case, wherein it was held that -
"In the facts and circumstances of the present case, it is difficult to sustain the charges levelled against the appellant who may have possibly, made a false promise of marriage to the complainant. It is, however, difficult to hold sexual intercourse in the course of a relationship which has continued for eight years, as 'rape' especially in the face of the complainant's own allegation that they lived together as man and wife."
13. In Maheswar Tigga's case, the Hon'ble Apex Court observed that -
"We have no hesitation in concluding that the consent of the prosecutrix was but a conscious and deliberated choice, as distinct from an involuntary action or denial and which opportunity was available to her, because of her deep-seated love for the appellant leading her to willingly permit him liberties with her body, which according to normal human behaviour are permitted only to a person with whom one is deeply in love."
14. Thus, learned counsel would contend that even according to the complainant the relationship started about two years back. Since the same relationship is consensual relationship between A1 and defacto complainant, the same does not attract ingredients of Sec 376 IPC and prayed to enlarge A1 and A2.
15. While considering the application under Section 437 and 439 Cr.P.C, a detailed examination of evidence and elaborate documentation of the merit of the case need not be 7 undertaken. However, the nature of accusation and the severity of punishment in case of conviction, reasonable apprehension of tampering of the witness or apprehension of threat to the complainant etc. are to be kept in mind.
16. In Dr.Dhruvaram Muralidhar Sonar's case, the Hon'ble Apex Court held that -
"Thus, there is a clear distinction between rape and consensual sex. The 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."
17. A perusal of the complaint shows that A-1 is aged about 57 years and he is having two wives. A-1 promised to marry the defacto complainant and fulfilled his lust and continued the same for two years. By virtue of the same, defacto complainant became pregnant. A2 supported A1 in all respects. Living together for two years as man and wife, in the facts and circumstances of the case, is not consensual sex. Hence, the contention of learned counsel for petitioners that consensual relationship between the parties would not constitute the offence under Section 376 of IPC, falls to ground. The apprehension of learned Special Assistant Public Prosecutor that petitioners, if enlarged on bail, will influence the witnesses and tamper with evidence, is well founded in the facts of this case. In view of facts and circumstances, this is not a fit case for grant of bail to the petitioners. Thus, the petition is liable to dismissed.
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18. Accordingly, the criminal petition is dismissed. It is made clear that the findings in this order be construed as expression of opinion only for the limited purpose of considering the regular bail in the above crime and shall not have any bearing in any other proceedings.
As a sequel, all the pending miscellaneous applications shall stand closed.
_________________________ SUBBA REDDY SATTI, J 21st June, 2022 PVD