Abstract
The judgment dated 21 May 2020 in the case of G. Achyut Kumar v. State of Odisha was delivered by a Single Judge Bench of Orissa High Court, consisting of Justice Sanjeeb Kumar Panigrahi. The appeal was a corollary of an Order passed by the Learned Sessions Judge-cum-Special Judge, Koraput wherein the bail was rejected to the accused-appellant. The appellant was indicted under Sections 493/313/376 of the Indian Penal Code, 1860 read with Section 3(2)(v) of the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities Amendment) Act, 1989. In this case while granting bail to the accused the Hon’ble High Court has bypassed the requirement of adjudging the necessary conditions for the grant of bail. Furthermore, it has evaluated the evidence in an in-depth manner which should have been ignored by the Hon’ble Bench. Besides that, the Hon’ble Judge has commented upon the legality of sexual intercourse on the false pretext of marriage, disregarding the settled precedents of the Apex Court of India. The authors intend to delineate such deviation without challenging the majesty of the Hon’ble Court and having all respect for the reasonings behind the said verdict.
Keyword: Rape, False Pretext of Marriage, Evidence, Prosecutrix, Bail, Per Incuriam
The Factual Exordium
The judgment dated 21 May 2020 in the case of G. Achyut Kumar v. State of Odisha[1] was delivered by a Single Judge Bench of Orissa High Court, consisting of Justice Sanjeeb Kumar Panigrahi. The appeal was a corollary of an Order[2] passed by the Learned Sessions Judge-cum-Special Judge, Koraput wherein the bail was rejected to the accused-appellant. The appellant was indicted under Sections 493/313/376 of the Indian Penal Code, 1860[3] read with Section 3(2)(v) of the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities Amendment) Act, 1989.[4] The Hon’ble High Court has heard the arguments for both the parties and while allowing bail to the accused, has discussed several factual intricacies and legal conundrums. This case comment is basically aimed at pointing out the factual as well as legal exaggerations done by the Hon’ble Bench, having all respect for the majesty of the Hon’ble Court and the Judge.
The Court Flouted The Discussion On Basic Parameters For Granting Bail
It is a well-acclaimed dictum of law that while considering bail application of an accused, the Court must take into consideration certain basic criterions,[5] viz,
- the gravity of the allegations;
- position and status of the accused;
- the likelihood of the accused fleeing from justice and repeating the offence;
- antecedents of the accused;
- the probability of tampering with the evidence and intimidating or influencing witnesses.
In the instant case, serious charges like rape, cohabitation deceitfully inducing a belief of lawful marriage and miscarriage have been involved. Furthermore, all these offences were alleged to be done when the accused was not oblivious of the fact that the prosecutrix belongs to scheduled caste. There were ample possibilities that once the accused is enlarged on bail, he will intimidate the victim. Similarly, the likelihood of accused to flee from the justice delivery system was not deliberated at all. These aspects should have been compulsorily adjudged upon before extending the benefit of bail to the accused who is alleged to have committed multiples cognizable offences. To that extent it can safely be concluded that the Hon’ble Court failed to appreciate the required parameters.
The Court in turn cited the observation made by the Hon’ble Apex Court in the case of Yedla Srinibas v. State of Andhra Pradesh,[6] wherein it was held that the voluntary consent depends on facts of each case and factors such as age of the girl, her education, her social status and likewise the social status of the boy. Though at the outset of the judgment it was noted that the girl belongs to Scheduled Tribe (ST) community, the same factor was not duly taken into consideration while adjudging the case for grant of bail to the accused.
The Version Of The Prosecutrix Is Undermined
It is a settled law that a prosecutrix in an offence relating to sexual offences cannot be placed at par with an accomplice. She is a victim of the crime. The Evidence Act, 1872 nowhere denies that her version cannot constitute a prima facie case without a material corroboration from other evidences. She is competent to be a witness under Section 118 of the Evidence Act and her evidence must receive the same weight as is attached to an injured witness.[7] It has been clearly observed by the Apex Court that even conviction can be based on the sole testimony of the prosecutrix and there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction.[8] The evidence must be weighed rather than being counted. There is absolutely no reason why the testimony of the prosecutrix in this particular case was not sufficient enough to constitute a prima facie case of grave nature for which the accused is not entitled to bail.
The Superfluous And Unreasoned Evidentiary Exploration by the Court
It is trite of criminal law that while considering the question of grant of bail, the Court must avoid consideration of details of the evidence as it is not a relevant consideration.[9] While it is necessary to consider the prima facie case, the Court must not go deep into the material evidence at this stage. The Hon’ble Supreme Court has reiterated that an exhaustive exploration of merits of the case should be avoided while taking into hearing a bail application.[10] It is pertinent to note that though at the stage of granting bail an elaborate examination of evidence and detailed reasons touching the merit of the case should be avoided as these have the potential to prejudice the interests of the accused the trial process, but there is a need to indicate in such order reasons for prima facie concluding why bail was being granted particularly when the accused is charged with a commission of serious offence.[11] It is manifest that if the High Court does not advert to these relevant parameters and mechanically grants bail, the said Order would suffer from the vice of non-application of mind, rendering it to be illegal.
In this case, however, the Hon’ble Court has gone deep into the evidentiary aspects of the case and has even discussed the legality of sexual intercourse on the false pretext of marriage. It is most respectfully diverged that the observation made by the Hon’ble Judge regarding whether the sexual intercourse between the accused and prosecutrix can be termed and deemed as ‘rape’ was entirely uncalled for at this stage of the case, where the only object behind the proceedings was to ascertain as to whether there is a prima facie case against the accused so as to decide the grant of bail would be appropriate or not. The Court could have discussed the primary circumstances which gave rise to the case and must have overlooked to those criterions which establishes the guilt or has the tendency to discharge the accused from the very guilt itself.
The Judgment is Per Incuriam As It Disregarded The Mandate Of The Apex Court
The Court in Para 15 of the judgment went on to hold that “the law is well-settled that consent obtained on a false promise to marry is not a valid consent. Hence, the automatic extension of provisions of Section 90 of I.P.C. to determine the effect of a consent under Section 375 of I.P.C. deserves a serious relook. The holding that false promise to marriage amounts to rape appears to be erroneous”. In holding so, the Hon’ble clearly defied the ratio reached by the Division Bench consisting of Justices L. Nageswara Rao and Justice M.R. Shah of the Hon’ble Supreme Court in Anurag Soni v. State of Chhattisgarh,[12] wherein it was observed that committing sexual intercourse on the false pretext of marriage is ‘rape’ under the meaning of Section 375 of IPC even if the accused subsequently married the prosecutrix. Because fact remains the same that when the intercourse was committed, the consent was obtained under the false assurance of marriage. Hence, it is no consent at all.
Further, where earlier bail application has been rejected there is a further onus on the Court to consider the subsequent application for grant of bail by noticing the grounds on which earlier bail application had been rejected. Only after such consideration if the Court takes the view that bail has to be granted then it has to delineate specific reasons why in spite of such earlier rejection the subsequent application for bail should be granted.[13] In the present case, the first bail application was not entertained and was rejected by the Learned Sessions-cum-Special Judge, Koraput. However, the Hon’ble Single Judge Bench did not explain or delved into the reasons cited by the Learned Sessions Judge while rejecting the bail. Above all, the Court has not cited any specific reason as to why the Order of the lower Court should not be upheld and why the bail should be granted.
Denouement
The Hon’ble High Court has extended the benefit of bail to the accused which is undoubtedly a safeguard against unwarranted detention, however, before doing so, the Court should have examined the primary factual matrix so as to conclude that the prima facie case is not established. But a careful reading of the facts shows that there was indeed a prima facie case of grave nature. Enlarging the accused on bail in such a matter may have serious ramifications to the interest of the victim. Forby, observations on the merit of the case would have a lasting impact on the Trial Court which will examine the case in depth. It is very unlikely for a Lower Court to take a distinct view from the High Court though the Hon’ble Single Judge Bench has clarified in the last para that observation made by it with respect to the facts of the case shall not come in the way or prejudicially affect the fair trial of the case. It is most respectfully submitted that the Courts while granting bail should not delve into the intricate factual matrix or in-depth merits of the case. In the transgression of which the rights of victim as well as accused are bound to be jeopardised.
[1] CRLA No. 940 of 2019 (Orissa High Court).
[2] G.R. Case No. 1013 of 2019.
[3] Act No. 45 of 1860.
[4] Act No. 33 of 1989.
[5] The State of Orissa v. Mahimananda Mishra, Criminal Appeal No. 1175 of 2018, ¶12.
[6] (2006) 11 SCC 615.
[7] State of Maharashtra v. Chandraprakash Kewal Chand Jain, AIR 1990 SC 658.
[8] State of Himachal Pradesh v. Raghubir Singh, (1993) 2 SCC 622; Wahid Khan v. State of Madhya Pradesh, (2010) 2 SCC 9.
[9] Puran v. Rambilas, (2001) 6 SCC 338.
[10] Anil Kumar Yadav v. State (NCT) of Delhi, (2018) 12 SCC 129.
[11] Masroor v. State of Uttar Pradesh, (2009) 14 SCC 286; Seema Singh v. Central Bureau of Investigation, Criminal Appeal No. 569 of 2018.
[12] Criminal Appeal No. 629 of 2019.
[13] Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496.
About Authors –
1. Jyoti Prakash Dutta – 5th Year B.A. LL.B. Student at university Law College, Utkal University, Bhubaneswar.
2. Rajalaxmi Mohanty – 5th Year B.A. LL.B. Student at university Law College, Utkal University, Bhubaneswar.