1. These are the applications for grant of anticipatory bail filed by various applicants in relation to the offence registered under Sections 376 (2)(n) of the Indian penal Code read with other sections of the Indian penal Code. Section 376 (2) (n) of the IPC being the main offence, the claim for grant of anticipatory bail is required to be examined particularly in the light of question of law that arises for consideration.
Criminal Application No. 309/2015
2. One Ku. P. aged about 21 years lodged report with Police Station Sindewahi, Dist. Chandrapur and stated therein that when she was taking education in D.Ed. College and residing with her close relative, she had a love affair with applicant-Sachin, who promised her from time to time that he would marry her and would not marry anybody else. In 2008, when she was studying in the 9th standard again, he had extended to her similar promises for marriage and with
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that promise committed rape on her and she allowed him to do so only because of promise of marriage. However, thereafter, when she was pressing him to marry her, he avoided her from time to time and finally stopped talking to her and as such she lodged report with Police Station Sindewahi on 17.06.2015 and an offence, as stated above, has been registered against the applicant.
Criminal Application No. 257/2015
3. Ku. S. aged about 20 years, lodged report with Police Station, Pandharkawda on 02.05.2015, that she had received a phone call on her mobile number from unknown person who told her that he loves her and thereafter when she had gone to Patanbori along with her neighbour and friend, a boy, aged about 23-24 years came near her and offered to marry her but she went away. On the second occasion, she received a call on her mobile phone from applicant-Syed Abubakar Syed Mir, the same boy who called her near road going to Tipeshwar forest. She went at 6.00 p.m. to meet him when she told her that he loves her and would marry her and, therefore, she became ready for marriage. They used to meet near the same road and thereafter on last visit he took her under nullah bridge and committed rape on her, thereafter, he refused to marry her. She lodged report accordingly with police Station Pandharkawda.
Criminal Application No. 218/2015
4. Ku. A. aged about 30 years lodged report with Police Station, Kasarkhed, Dist. Yavatmal on which offence under Section 376, 312 of the IPC was registered against the applicant. She stated in the FIR that she was working and earning Rs.6,000/- per month as Field Officer in the office of Sant Gadge Baba Bahuuddeshiya Vikas Sanstha, Dist. Yavatmal. There was a friendship between the present applicant and the complainant Ku. A. and in the year 2013 when she was residing as a tenant of one Shri Gupta at Amraipura, S.T. Stand Chowk, Yavatmal, the applicant had gone to meet her and told her that he wanted to marry her. She told him that in the year 2004 itself, she was already married with one Amar Dashrath, r/o Narkhed, Nagpur and, thereafter, there was a divorce between them and therefore she was residing alone. He told her that he wanted to marry her and upon that promise, committed rape on her on 23 occasions. In 2014, when she was at Darwah, the applicant came to her and gave her promise of marriage and committed rape on her. Thereafter, at Pusad when she was residing in a rented room, there again the applicant had committed rape on her. In the meantime, she conceived from the applicant and told him about it. She requested him to marry her but he did not. On the contrary, he gave her tablets for abortion. It is thus from him, she conceived and twice she aborted. In June-2014 when she was residing in the house of Shri Khandale at Wadgaon, both resided together and there again she conceived and asked him to marry but he did not marry. Thereafter, the applicant stopped talking to her. Having got suspicion, she went to Sayatkharda and came to know that he had married one Shilpa Khobragade by registered marriage. Then she lodged the report with Police that she was raped by him on several occasions on the promise of marriage and was cheated accordingly.
5. On the basis of the above facts, the learned counsel for the applicants argued that these complainants are admittedly major and the facts clearly demonstrate that they had consensual sex with the applicants. Counsel for the applicants argued that in the wake of consensual sex with full understanding of the complainants, no offence of rape can be said to have been constituted. According to them, these being the admitted facts, the act of consensual sex was a voluntary act on their part and there can be no offence of rape in the wake of consent, which is loud and clear from the facts as stated above. Counsel for the applicants, therefore, argued that the applicants have made out a case for grant of anticipatory bail since the complainants were voluntarily willing party to the intercourse which does not constitute rape.
6. On the contrary, the learned A.P.P. submitted that the arguments advanced by the applicants are based on the old unamended provisions of Section 375 and 376 of the Indian Penal Code and, therefore, the offence having been committed after coming into force of the amendment, the defence of consensual sex cannot stand. The learned A.P.P, therefore prayed for dismissal of these applications.
7. The question involved in these applications is of some importance. The question has been raised by the learned counsel for the applicants, at this stage of consideration of application for grant of anticipatory bail. The learned counsel for the applicants relied on the decisions in Deepak Gulati ..vs.. State of Haryana, (2013) 7 SCC 675; Kaini Rajan ..vs.. State of Kerala; (2013) 9 SCC 113; K. P. Thimmappa Gowda ..vs.. State of Karnataka; (2011) 14 SCC 475; Vinod Kumar..vs..State of Kerala; (2014) 5 SCC 678.
I have perused the above decisions and I find that all these decisions are prior to the Parliamentary amendment in relation to the subject matter and, therefore, there is no point in referring to those decisions. That being so, I proceed further.
9. Apropos the Criminal Law (Amendment) Act, 2013 (13 of 2013), Section 9, w.e.f. 03.02.2013, the amendment made material changes. Here, it is necessary to look into the relevant provisions of Section 375 of the IPC defining Rape. In my opinion, in the present matter, Explanation-2 to Section 375 and Section 376 (2) (n) are relevant, which read as under:
A man is said to commit "rape" if he-
(a) to (d) …..
First to Seventhly …..
Explanation 2.- Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or nonverbal communication, communicates willingness to participate in the specific sexual act:
376 . Punishment for rape –
(a) to (m)
(n) commits rape repeatedly on the same woman, shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.'
The use of word 'unequivocal' in the above Explanation-2 is most crucial in the amended provision. The meaning of the word 'unequivocal' in the Blacks Law Dictionary is as under:
'Unequivocal : Unambiguous; clear; free from uncertainty.'
As per Websters Comprehensive Dictionary of the English Language (Deluxe Encyclopedic Education, 2004) the meaning of word 'unequivocal' is as under.
'Unequivocal: Understandable in only one way; distinct; plain'
10. Perusal of the meaning of the word 'Unequivocal' accompanied by the word voluntary agreement, to my mind, shows that though in all these cases, there is a reason to believe about the consensual sex of the complainant being major, there is no doubt of the complainant being a willing party to the intercourse at their own. Hence, there was voluntary agreement. But the question is; whether the act was unequivocal? In the light of the facts stated above, one will have to hold, prima facie, that the consent, which is given for the intercourse, was not unequivocal. The submission made by the learned counsel for the applicants that the applicants are not at fault because there was clear cut consent by complainant but then this court is unable to countenance the stand since the word unequivocal has been inserted in the Explanation-2 as an integral part of the word voluntary agreement. That is the will of the Parliament. There is no manner of doubt that the major women in these cases, with full understanding and conscience, went ahead in entering into sexual intercourses which should not constitute rape. But then the fact remains that personal opinion or feeling of this Court has no place in law and the will of Parliament must be held to be supreme. I, therefore, hold that prima facie the applicants are guilty the offence of rape in the absence of 'unequivocal and voluntary agreement.'
11. Hence, following order is passed.
(i) Criminal Application Nos.218/2015, 257/2015 and 309/2015 are rejected.
(ii) The observations made in this order are limited for decision of the anticipatory bail applications.