Continuous and Consensual Sex between Two Adults Cannot be considered as Rape: High Court of Karnataka and Bengaluru.
Judgement: 16/062021 Criminal Petition 3865/2021
A petition is filed by the petitioner-accused under Section 438 of Cr.P.C., case titled SHASHIBHUSHNA K V STATE OF KARNATKA for granting anticipatory bail in the offences punishable under Sections 354(A), 354(D), 506, 504, 120B, 376, 420 of IPC and Section 67A of Information Technology Act.
The court pronounced that, admittedly the victim and petitioner are major and they are Central Government employees. The petitioner is working as Superintendent of Central GST, West Commissionerate, Banashankari, Bangalore and the victim is working at the Office of the Central GST, introduction of the victim and the petitioner was in the year 2013 and the sexual assault started in the year 2014 at Bangalore. Thereafter till 2018 it was continued in Shivamogga and other various places. But the victim had not complained against the petitioner for having sexual abuse on her earlier. Learned counsel for the petitioner brought to the notice of this Court and relied upon the various judgments of the Supreme Court in the case of Pramod Suryabhan Pawar Versus the State of Maharashtra and Anr. in the case of SIDDHARAM SATLINGAPPA MHETRE v. STATE OF MAHARASHTRA in respect of the principles for granting Anticipatory Bail. He also submitted that wife of the petitioner lodged a complaint against the very victim on 31.01.2019 at Kodigehalli Police Station.
The victim was summoned by the police and she has given statement to the police she has never stated anything about sexual harassment on her by the petitioner and she gave a reply on 01.02.2019. The petitioner has also given a complaint to the Commercial Street Police on 30.10.2020 for making false allegations on him that he has cheated an amount even though the amount was refunded.
On perusal of the records, admittedly the petitioner alleged to have been sexually assault on the victim, of course with consent as both of them are major and officers of the Central Government. Though the victim came to know about the marital status of the petitioner before 2018 itself, but no complaint has been lodged by her either for cheating or for sexual assault on her. Even in the complaint she has stated that she has filed complaint against one Anthony Raj for sexual assault on her in the working place. On enquiry also she has stated that she has not lodged any complaint against this petitioner throughout 2014 to 2018.
On perusal of entire records, it appears, both, the petitioner and victim had sexual affairs with consent and it cannot be considered as rape as per the decision of Section 375 of the IPC when both adults having continuous consensual sex which cannot be considered as Rape. This Court will not going to the other contention regarding sexual assault on the woman in work place and conducting an Departmental enquiry.
The recent judgment of the Hon’ble Supreme Court Journalist Varun Hiremath vs. State of Delhi, where the Supreme Court has held that if the man and woman are in room, man makes a request and woman complies and it is stated no need to say anything more and for cancellation of the bail granted to the journalist has been dismissed by the Hon’ble Supreme Court.
Upon considering the entire episode narrated by the complainant against the petitioner it cannot be said that the offence alleged against the petitioner is an offence of rape. The petitioner is permanent employee of Central Government. The offence alleged is neither punishable with death or imprisonment of life.
Considering the facts and circumstances of the case, without expressing any opinion on the merits of the case, if the petitioner is granted bail by imposing certain conditions, no prejudice would be caused to the case of the prosecution.
Hence court directed the Police to release the Petitioner on Bail.
