Khadija HetavkarContributing Author, Rightantra In a recent judgment in the case of Rohit Sharma v. State of Himachal Pradesh, the Himachal Pradesh High Court granted bail to a man accused of raping a minor girl based on the voluntary conduct of the minor girl in accompanying the man for intercourse on an earlier occasion, despite acknowledging her inability to consent to sexual intercourse. Based on a complaint made by the victim’s father, the police arrested the petitioner, Rohit Sharma in furtherance of a First Instance Report (FIR) registered under Sections 363, 366A and 376 of the Indian Penal Code, 1860 (Kidnapping; inducement of a minor girl for illicit intercourse; and sexual assault), Section 4 of the Protection of Children from Sexual Offences Act, 2012 (punishment for penetrative sexual assault) and Section 3 of the SC & ST Act (punishments for offences of atrocity).
The petitioner had approached the High Court seeking regular bail on the grounds that the family of the victim had forced her to lodge a false complaint in an attempt to break their love affair. The Court noted that the victim had informed the police that she had known the accused since 3-4 months, and they both were in touch through Facebook and phone. She also informed the police that, on 30th October, 2020 they participated in a marriage after which the victim stayed with him, where he indulged in sexual intercourse with her, against which action the FIR was filed. "Although, she could not have consented for sexual intercourse as well as leaving custody of her custodian but for deciding the bail, her conduct is sufficient to grant bail to the petitioner”, observed Justice Anoop Chitkara. Taking into consideration the unique nature of the case, Justice Chitkara mentioned several case laws which laid down the considerations taken into account by Courts prior to grant of bail even in non-bailable offences,
In Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav, 2005 (2) SCC 42, (Para 18), a three-member bench of Supreme Court held that the persons accused of non-bailable offences are entitled to bail, if the Court concerned concludes that the prosecution has failed to establish a prima facie case against him, or despite the existence of a prima facie case, the Court records reasons for its satisfaction for the need to release such persons on bail, in the given facts situations. Thus, in this case, the High Court granted the petitioner bail subject to strict terms and conditions as follows:
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