Rape, one of the most terrifying words which gives goosebumps to both men and women. There were many laws for this heinous offence framed by the constitution makers. Some use these laws as a remedy for the mishap that takes place with the innocent but with the instance of time other use these remedies as a weapon of revenge or way to throw their frustration to led down the reputation of others. To safeguard the innocents from the people who use these laws as a weapon to disrepute the one in society there were many Bye-Laws and provisions of Bail and Anticipatory Bail in the Constitution under section 438 and 439 in Criminal Procedure Code.
Rape is defined u/s 375 I.P.C. reads as under:
Rape: A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:
1. Against her will.
2. Without her consent.
3. With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
4. With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
5. With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
6. With or without her consent, when she is under sixteen years of age. Explanation—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
(Exception) —Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
Physical relation on the pretext of marriage is not considered as the offence of rape. There are several grounds on which the accused can prove that the physical relation during live-in relationship does not amount to rape but it is the consensual sex. Consensual sex is the physical relation takes place between the couple with the consent of the women.
If once the live-in relationship is established then there are several factors become favorable for the accused. In rape cases there is no limitation of time for lodging F.I.R. supported by various judgements.
Misuse of Rape Laws
Courts noticed that nowadays with genuine cases of rape there are some female who filed false rape cases against an innocent person which led to loss of his reputation in a society and several other unfortunate consequences
There are some reasons which court finds in the cases they dealt with, why women filed false rape cases that is extortion by blackmailing, Pretext of marriage under frustration, revenge to humiliate one’s reputation etc. There are some by-laws and other provisions under the Constitution of India.
In false rape cases, the onus to prove his innocence lies on accused. As section 376 is Non-Bailable Offence, the accused can apply for bail in a Court of session under 438 and 439 Cr.P.C. If bail is rejected by the court than after change in circumstances the accused can apply again or after the filing of the charge sheet.
Recent Judgements of the Hon’ble Courts while granting Bail are as follows:-
1. Siddharam Sattlingappa Mhetre V. State of Maharashtra; (2011) SCC 694
Supreme Court laid down the following factors and parameters to be taken into consideration while dealing with anticipatory bail.
"112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:
i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before the arrest is made;
ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
iii. The possibility of the applicant to flee from justice;
iv. The possibility of the accused's likelihood to repeat similar or the other offences.
v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.
vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;
viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.
2. In Akshay Manoj Jaisinghani v. The State of Maharashtra; Bail Application No. 2221/2016 wherein it was observed to the effect :
“ Only because two individuals are sexually involved with each other, it is not compulsory for them to marry. Initially, a boy and a girl genuinely may want to marry and are true to their emotions and establish sexual relationship, however, after some time, they may find that they are not mentally or physically compatible and one decides to withdraw from the relationship. Under such circumstances, nobody can compel these two persons to marry only because they had sexual relationship. It is necessary to have a healthy, objective and legal approach towards these incidents. There may be moral bonding between the two persons when they indulge into sexual activities with the promise to marry and it is also fact that ultimately women only can remain pregnant and therefore, she suffers more than the man. However, in law, this cannot be labeled in any manner as a rape.”
The applicant, in this case, was allowed to be released on bail subject to the conditions imposed.
3. In Arif Iqbal @ Imran v. State; 2009 SCC Online Del 356. The observations therein are to the effect:
“Without expressing any view on the merits of the case, it is quite apparent from the contents of some of the letters placed by the petitioner on record that the prosecutrix was deeply in love with the petitioner. It is not in dispute that the petitioner had physical relations with the prosecutrix not at any strange place but at the residence of the prosecutrix itself. In her madness for love with the petitioner, prosecutrix went to the extent of administering intoxicating pills to her family members to induce them to go in fast and deep sleep and during which period the petitioner had sex with the prosecutrix. No doubt the prosecutrix has alleged that she allowed the petitioner to have sex with her because of the false promise of marriage extended by the petitioner but in my view mere false promise of marriage should not have prompted the prosecutrix to establish a physical relationship with the petitioner.”
4. Shiva Shankar v. State of Karnataka; Crl. Appeal No. 504/2018
Hon’ble Supreme Court contend that where the accused and the prosecutrix had lived together like a married couple, and the sexual intercourse had lasted over a period of time, it was observed to the effect that especially in the face of the complainant’s own allegations of their living together, cannot be termed to be a case of rape.
5. Bhushan Malik v. State (Government of NCT of Delhi); Bail Application no. 1545/2018; Delhi High Court
The Hon’ble Court observed that there are substantial improvements in version given by the prosecutrix in the supplementary statement given by her over the version given by her in the statement on which the subject FIR has been registered and the statement given before magistrate u/s 64 Cr.P.C. as also her version recorded in the MLC of the sexual Violence.
6. Deepak Dua v. State of NCT of Delhi; Bail Application no. 2369/16
The Hon’ble Court held that where the medical examination was refused by the prosecutrix therein and the applicants were held entitled to be released on anticipatory bail u/s 438 Cr.P.C.
7. Harish Kumar v. State 2010 (4) JCC 2371
The Hon’ble Court contends that a promise to marry which is later denied does not amount to offence of rape and it is a breach of promise and the complainant should seek a civil remedy.