Case Note & Summary
The appellant, Sajjan s/o Hirchand Gusinge, filed an appeal under Section 14-A(2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (Atrocities Act) challenging the rejection of his anticipatory bail application under Section 438 of the Code of Criminal Procedure, 1973 (CrPC) by the learned Special Judge, Aurangabad, on 04.11.2022. The respondent No.2, the original informant, had lodged FIR No.161 of 2022 on 20.10.2022 alleging offences under Sections 376, 313, 323, 506 of the Indian Penal Code (IPC) and Sections 3(1)(r), 3(1)(s), 3(2), 3(2)(va) of the Atrocities Act. The informant, a 27-year-old widow with a 10-year-old son, alleged that the appellant befriended her on Facebook, expressed love, and promised to marry her. Based on this promise, she had sexual relations with him from 27.07.2020 to 22.04.2022, became pregnant, and underwent abortion due to his threats. She further alleged that in March 2022, the appellant abused her in the name of her caste. The Special Judge rejected the bail application citing the bar under Sections 18 and 18-A of the Atrocities Act. The High Court heard arguments from both sides. The appellant's counsel contended that the relationship was consensual, the promise to marry was not false from the beginning, and the caste-based abuse was an afterthought. The State and the informant opposed bail, arguing that the bar under the Atrocities Act applied. The court analyzed the FIR and found that the allegations of caste-based insult were vague and not prima facie made out, as the informant did not specify the exact words used. The court also noted that the relationship was consensual over a long period, and the appellant had not forcibly caused the abortion. Therefore, the bar under Sections 18 and 18-A did not apply, and custodial interrogation was not necessary. The court allowed the appeal, set aside the Special Judge's order, and granted anticipatory bail to the appellant on certain conditions.
Headnote
A) Criminal Procedure - Anticipatory Bail - Section 438 CrPC - Bar under Section 18 and 18-A of SC/ST Act - The court considered whether the bar under Section 18 and 18-A of the SC/ST Act applies when the FIR does not prima facie disclose the ingredients of the alleged offences under the Atrocities Act. Held that the bar does not apply if the allegations of caste-based insult are not made out on a reading of the FIR. (Paras 7-9) B) Criminal Law - Rape by Promise to Marry - Section 376 IPC - Consent - The court examined whether sexual intercourse based on a promise to marry constitutes rape when the relationship was consensual over a long period. Held that if the promise was not false from the inception and the relationship continued for a long duration, it may not amount to rape. (Paras 6, 10) C) Criminal Law - Abortion - Section 313 IPC - Coercion - The court considered whether the allegation of abortion without evidence of force or threat establishes coercion. Held that in the absence of material showing that the abortion was forced, the offence under Section 313 IPC is not prima facie made out. (Para 10) D) Criminal Procedure - Anticipatory Bail - Section 438 CrPC - Custodial Interrogation - The court assessed whether custodial interrogation of the appellant was necessary. Held that since the appellant cooperated with investigation and no recovery was required, custodial interrogation was not necessary. (Para 10)
Issue of Consideration
Whether the bar under Section 18 and 18-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 applies to an application for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 when the allegations of caste-based insult are not prima facie made out.
Final Decision
The appeal is allowed. The order dated 04.11.2022 passed by the learned Special Judge under the Atrocities Act, Aurangabad in Bail Application No.2100 of 2022 is set aside. The appellant is directed to be released on anticipatory bail in connection with Crime No.161 of 2022 registered with Vedant Nagar Police Station, District Aurangabad, on executing a P.R. bond of Rs.15,000/- with one solvent surety of the like amount, subject to certain conditions including attendance before the police station as required, not tampering with evidence, and not leaving India without prior permission.
Law Points
- Anticipatory bail under Section 438 CrPC is maintainable despite bar under Section 18 and 18-A of SC/ST Act if no prima facie case of caste-based insult is made out
- Promise to marry does not vitiate consent if relationship was consensual over long period
- Abortion without evidence of force does not establish coercion
