V.K.GUPTA,C.J. - (1.) THIS is an application for release on bail filed by the petitioner. In Special Case No. 9/2001, the learned 1st Addl. Sessions Judge, Jamshedpur, passed an order on 4.8.2001 rejecting the bail application of the petitioner for the offence under Section 376. IPC and 3/4 of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act. I am mainly concerned with the offence registered under Section 376, IPC, because admittedly on the facts, is a very very good case made out for bail under Section 3/4 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.
(2.) IN so far as the allegation made under Section 376, IPC is concerned, the admitted case of the prosecution is that the prosecutrix, Saraswati Kumari Sagar, lodged a written complaint that she and the accused Arjun Gupta, had developed intimacy, relationship and even love affair. On 9.4.2001, when Manju Singh, the head of the family where she was working as maid -servant, was out of Jamshedpur, the accused came inside the house and had sexual intercourse with her. During the course of such sexual intercourse, he promised to her that he would marry her. Thereafter, both the prosecutrix and the accused kept on meeting with each other. It is also the accusation of the prosecutrix that the accused kept promising her about marriage. On that pretext, the accused had sexual intercourse with her. I have come across several cases where similar allegations are made by the prosecutrix against the accused persons. The gravemen and the thrust of the allegations in all such cases is that the accused and the prosecutrix have had sexual intercourse with each other for a long time and on several occasions, presumably on the alleged assurance of the accused that he would marry the prosecutrix and later on, after a sufficiently long gap, when the prosecutrix finds that the accused does not intend marrying the prosecutrix or that his assurances were unfounded or false, she lodges the FIR against the accused, which, in effect and substance, means that during this period, sometimes spanning to over weeks or even months, the prosecutrix did not ever complain. If nothing else, this purely and simply points out to the fact that the prosecutrix was always a consenting party to the sexual intercourse with the accused. If, therefore, the prosecutrix has been a consenting parly for all this while (sometimes this period extending to over weeks together and sometimes for months) and lodges the complaint after such a long time, can it be alleged, presumed or even said that the accused has raped the prosecutrix against her will and/or without her consent. In such circumstances and based on these facts, it is not at all difficult to say so. When - ever, therefore, a situation like this comes up before a Court, in such conditions and based on such facts, the courts should have no difficulty in holding that the alleged act was done not without the" consent and against the will of the prosecutrix. That being the case, therefore, the accused, whenever prays for bail in such a cases, deserves to be enlarged on bail.
(3.) IN deciding a bail application under Section 439 of the Code of Criminal Procedure, the High Court or the Court of Sessions has to take into account the basic principle as to whether, on a prima facie reading of the material on record, can it be said that the accused has ex facie committed the offence for which he has been charged. It is the duty of a Court exercising jurisdiction under Section 439 of the Code of Criminal Procedure to take into consideration all such relevant facts which might go to either suggest that the accused might have committed an offence or that apparently and prima facie he does not appear to have committed any such offence.;