Ratnesh Sharma vs State Of Chhattisgarh

This Criminal Appeal has been filed under Section 14(A) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (henceforth ‘the SC/ST Act’) against the order dated 06.03.2023 passed by the Special Judge, SC/ST ACT, North Bastar, Kanker for grant of regular bail to the Appellant, who has been arrested in connection with Crime No.41/2023 registered at Police Station Kanker, District Kanker (CG) for the offence under Sections 376 and 376(2)(n), 323 and 506 IPC, under Sections 66E, 67 and 67A of the IT Act as also under Sections 3(2)(v) & 3(2)(v)(a) of the SC/ST Act.

Case of the prosecution is that the prosecutrix, a 26 year old lady had lodged FIR on 09.02.2023 alleging that she came in contact with the Appellant in the month of August, 2021 and at the relevant time, he was posted at Punjab National Bank, Kanker Branch and she was also posted in a Rural Bank in the same place and both resided in the same apartment. It is alleged further that thereafter, both had developed love affair and under the pretext of marriage, the Appellant had sexually exploited her between February and December, 2022 and on 08.12.2022, when she had gone to the Appellant’s work place and called him telephonically, then he took her to his room and threatened her to make physical relationship with him otherwise, he would make her private videos viral as also threatened to kill her, therefore, the aforesaid offence has been registered against him.

Learned counsel for the Appellant submits that the Appellant is innocent and has been falsely implicated in the crime in question for which, he is languishing in jail since 10.02.2023. He further submits that the prosecutrix is a married lady, who herself was inclined towards the Appellant and willingly developed physical relationship with him, there was no case of any resistance. He placed reliance on the judgment rendered in the matter of Shambhu Kharwar vs. State of Uttar Pradesh & Anr. reported in 2022 SCC OnLine SC 1032 and drawn attention towards paras 11 and 12, which read as under:-

“11. In Pramod Suryabhan Pawar v. State of Maharashtra [(2019) 9 SCC 608], a two Judge Bench of this Court of which one of us was a part (D.Y. Chandrachud J.), held in Sonu @ Subhash Kumar v. State of Uttar Pradesh, [(2021) SCC OnLine SC 181], observed that:

“12. This Court has repeatedly held that consent with respect to Section 375 of the IPC involves an active understanding of the circumstances, actions and consequences of the proposed act. An individual who makes a reasoned choice to act after evaluating various alternative actions (or inaction) as well as the various possible consequences flowing from such action or inaction, consents to such action...

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[...] Specifically in the context of a promise to marry, this Court has observed that there is a distinction between a false promise given on the understanding by the maker that it will be broken, and the breach of a promise which is made in good faith but subsequently not fulfilled...

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Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a “misconception of fact” that vitiates the woman's “consent”. On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it. The “consent” of a woman under Section 375 is vitiated on the ground of a “misconception of fact” where such misconception was the basis for her choosing to engage in the said act...

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To summarise the legal position that emerges from the above cases, the “consent” of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act.

(emphasis supplied)

In the present case, the issue which had to be addressed by the High Court was whether, assuming all the allegations in the charge-sheet are correct as they stand, an offence punishable under Section 376 IPC was made out. Admittedly, the appellant and the second respondent were in a consensual relationship from 2013 until December 2017. They are both educated adults. The second respondent, during the course of this period, got married on 12 June 2014 to someone else. The marriage ended in a decree of divorce by mutual consent on 17 September 2017. The allegations of the second respondent indicate that her relationship with the appellant continued prior to her marriage, during the subsistence of the marriage and after the grant of divorce by mutual consent.”

He further submits that the prosecutrix had not opposed the prayer for grant of bail to the Appellant when she appeared before the Special Judge (Atrocities) 0n 31.03.2023 and lastly submits that the trial may take quite some time for its conclusion, therefore, the present Appellant may be released on bail.

Per contra, learned Counsel for the State strongly opposed the bail application. However, learned Counsel for the Complainant supported the prayer for bail.

Considering the facts and circumstances of the case, the submissions put forth by learned Counsel for the parties, the nature of accusation and particularly considering that the prosecutrix did not oppose the prayer for bail and the principles laid down in the matter of Shambhu Kharwar vs. State of Uttar Pradesh & Anr. (supra), without further commenting anything on merits, I am inclined to grant regular bail to the Appellant.

Accordingly, the Appeal is allowed and it is directed that on Appellant’s furnishing a personal bond for a sum of Rs.25,000/- with one surety in the like sum to the satisfaction of the concerned Court, he shall be released on bail. He shall however, make his appearance before the concerned Court as and when so directed.