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[Rape] Consent Can't Be Assumed Even If Woman Is Of Bad Character/ Vulnerable: Karnataka HC Cancels Anticipatory Bail Of Accused Police Constable

Mustafa Plumber
7 July 2022 9:30 AM GMT
[Rape] Consent Cant Be Assumed Even If Woman Is Of Bad Character/ Vulnerable: Karnataka HC Cancels Anticipatory Bail Of Accused Police Constable
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The Karnataka High Court has set aside the anticipatory bail granted to a police constable accused of sexually assaulting a women over a period of three years under the false promise of marriage.

While doing so, a single judge bench of Justice HP Sandesh further observed that the trial court had erred in forming an opinion at the stage of pre-arrest bail that since the complainant had physical relationship with accused for all three years, it amounts to "consensual relationship". It observed,

"In the absence of any discussion in the (impugned) order about the allegations made in the complaint, the (Sessions) Court has formed an opinion that it amounts to a consensual relationship since she is having physical relationship with respondent No.2 (accused) and the same cannot be a ground even if the complainant is having a bad character and that she is vulnerable to subject her for sexual act..."

The victim had approached the High Court seeking to cancel the anticipatory bail granted to the accused, who is charged under Sections 323, 376, 420, 506 of IPC. It is the case of the complainant that respondent No.2 being a Police Constable, promised her that he would marry her and on that guise, he subjected her for sexual act continuously from 2019 till filing of the complaint in February 2022 but, he has not married the complainant.

The alleged accused approached the Sessions Court by filing a petition under Section 438 of CrPC which granted anticipatory bail in coming to the conclusion that the complainant is aged about 27 years and had physical relationship with respondent No.2 for all these three years which amounts to consensual relationship.

Findings:

The bench said the Court can exercise the powers under Section 439(2) of Cr.P.C. (Cancellation of bail) under two circumstances, one is with regard to the violation of the conditions imposed by the Court and the second one is, when the Trial Court has passed any perverse and capricious order.

In the instant case, the High Court observed that the Sessions Court had had presumed "consensual relationship" at the stage of considering the bail petition, without discussing the contents of the complaint of the petitioner. It observed,

"Instead (the court) made the reference of filing the complaint by respondent No.2 wherein he has alleged the relationship between them, regarding payment made and also regarding accommodation made to the complainant by paying the rent of Rs.7,000 per month and nothing is discussed with regard to the factual aspects of the case, particularly, the allegations made in the complaint of the petitioner."

The bench noted that the order passed by the Trial Court without looking into the allegations made in the complaint and without assigning any reasons, granted bail that too when a serious offence of Section 376 IPC is invoked against respondent No.2, who happens to be a Police Constable.

It observed, "The trial Court without looking into the contents of the complaint and did not discuss anything about the factual aspects of the case. Hence, it is capricious and perverse order, which requires interference of this Court exercising the powers under Section 439(2) of Cr.P.C."

The court also took note that several complaints made to police by the victim about the offence, were not acted upon. It said, "When cognizable offence is alleged, it is the foremost duty of the Investigating Officer to receive the complaint and register the case even if there is no jurisdiction also and thereafter, send the complaint to the jurisdictional police. The same has not been done by the police and when the matter was taken before the Sessions Court, even the Sessions Court also not applied its mind to the alleged cognizable offence and passed an order on flimsy grounds alleging that it amounts to a consensual relationship, which is unfortunate."

Case Title: SHABANNA TAJ v. STATE OF KARNATAKA

Case No: CRIMINAL PETITION NO.4320/2022

Citation: 2022 LiveLaw (Kar) 247

Date of Order: 1ST DAY OF JULY, 2022

Appearance: Advocate RAGHAVENDRA GOWDA K, a/w ADVOCATE MOHANKUMARA D, for petitioner; HCGP H.S.SHANKAR, for R1; Advocate PRABHUGOUD B TUMBIGI, FOR R2

Click Here To Read/Download Order



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