Bail in false rape case 376 IPC to Delhi Police official: Ravi Drall Advocate, Criminal Lawyer Roini Court Delhi

Bail granted to a Delhi Police official for allegedly raping a wife of accused involved in many cases.

Bail in rape case- Ravi Drall Advocate, Rohini Court Delhi.

A man held on charges of raping a lady has been granted bail by the Rohini Sessions Court, which took a prima facie view that the accused who is an government employee and the victim were known to each other and victim has given different versions before police and court.

Rohini court’s Sessions Judged granted regular bail in a rape to a Delhi police official. Accused was posted in NIA police station from 2019 to 2021 and during his posting as a police official he had arrested the husband of the complainant in a kalandra and sent him behind the bars. Later on while the accused was transferred to security of Rahul Gandhi present FIR was lodged.

Advocate Ravi Drall appeared for accused and argued that the husband of the victim is a habitual offender who is engaged in many other cases, present case is nothing but a pressure tactic so that statements of the witnesses many be influenced during the court proceedings through police officials. The accused has clean antecedents and he has been implicated just because he once arrested the husband of the complainant. The complainant gave complaint after delay of six months which is a considerable time further she has given different version in FIR and statement recorded U.S: 164 Cr.PC before the Magistrate. In very peculiar circumstanced due to changing version of the complainant two statements U.S: 164 Cr.PC has been recorded in the present case. The complainant stated in her statement before magistrate that her family members pressurized her to give statement against the accused before police.

Additional Sessions Judge Jagdish Kumar noted in his order, “There is delay of six months in lodging the FIR. The applicant/accused is in J/C since 14.04.2022. The prosecutrix has given different versions from the FIR in the statement recorded U.S: 164 Cr.PC. The prosecutrix who is present in the court has stated that she has no objection, if bail is granted to the accused. Nothing has to be recovered from the accused. Considering the facts and circumstances of the case, the accused is admitted on bail.”

Section 376 in The Indian Penal Code

1[376. Punishment for rape.—

(1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.

(2) Whoever,—

(a) being a police officer commits rape—

(i) within the limits of the police station to which he is ap­pointed; or
(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or
(iii) on a woman in his custody or in the custody of a police officer subordinate to him; or
(b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or
(c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman’s or children’s insti­tution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or
(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or
(e) commits rape on a woman knowing her to be pregnant; or
(f) commits rape on a woman when she is under twelve years of age; or
(g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years. Explanation 1.—Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section. Explanation 2.—“Women’s or children’s institution” means an institution, whether called an orphanage or a home for neglected woman or children or a widows’ home or by any other name, which is established and maintained for the reception and care of woman or children. Explanation 3.—“Hospital” means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.]

First clause : against her will

If a male has sexual intercourse with a woman against her will, it is rape according to the first clause, unless it falls under one of the exceptions listed in the section. In Deelip Singh vs. State of Bihar (2005), according to the prosecutrix, the initial illegal conduct was carried out despite her opposition, but she later became a consenting participant as a result of frequent promises of marriage. She revealed in the FIR that she succumbed to him even before the first act because of the marriage promises. The Apex Court decided that her version was untrustworthy and that the charge against the accused was unfounded.

Second clause : without consent

If a male engages in sexual activity with a woman without her consent, it constitutes rape under the second clause if it does not fall within the exceptions set out in the Section. It should be noted that if the girl claims she did not consent to the rape while in custody, the court will assume she did not consent, as has been held in the case of Sohan Singh vs. State of Rajasthan (1998).

Third and fourth clauses : passive non-resistance or consent obtained by fraud

As per the third clause, when a woman’s assent is secured by putting her or anybody she cares about in fear of death or harm, although the act is done with her permission, the same amounts to rape. If a girl does not object to intercourse because she is misled, this does not constitute consent on her part. It was held that a medical man who was sent for professional guidance by a fourteen-year-old girl had a criminal relationship with her, and she made no resistance because she believed he was treating her medically, was guilty of rape. The prosecutrix’s submitting of her body out of dread or anxiety cannot be considered a consenting sexual act. In light of the case of State of Himachal Pradesh vs. Mange Ram (2000), the Supreme Court stated that the fact of consent may only be determined after a thorough examination of all relevant circumstances. Clause 4 concerns a rapist who is aware that he is not his victim’s spouse, and that her consent is granted because she believes he is another man to whom she is or believes she is lawfully married. In the case of Reg vs. R, 3 WLR 767 (HL), a wife left the matrimonial house and returned to live with her parents due to marital issues, advising the husband of her intention to file for divorce. While the wife was staying with her parents, the husband forced his way in and attempted to have sexual relations with her, during which he assaulted her. His attempted rape and assault causing actual bodily injury convictions were upheld.

Fifth clause : sexual intercourse with insane or drunken person

As per the fifth clause of Section 375, the acts done with the victim’s consent when she is unable to appreciate the nature and consequences of that to which she consents due to unsoundness of mind or intoxication, or the administration by the accused directly or through another of any stupefying or unwholesome substance, will amount to rape. In R v. William Camplin (1849), it was held that rape occurred when a man had carnal knowledge of a girl of imbecile mind and the jury found that it occurred without her consent, she being unable of giving consent due to a defect of comprehension. This act was committed when the perpetrator made a woman very inebriated and then violated her person while she was unconscious. These instances will now fall under the fifth clause of Section 375 of the Indian Penal Code, 1860.

Sixth and seventh clause : sexual intercourse with a minor and when the woman is unable to communicate consent

As per the sixth clause, if the offensive act is done with or without the consent of the girl and the girl is under the age of eighteen, it is termed rape.  The seventh clause states that if the offensive act is performed on a woman who was not in a position to consent at the time of the intercourse, the same will also be considered to be rape.

Is anticipatory bail available in rape case?

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