PRAHLAD RAMBHAI ODEDARA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present writ petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 ("Code" for short) seeking quashing and setting aside the impugned FIR being C.R.NO.I-235 of 2016 registered with Sayajigunj Police Station, Dist:Vadodara for the offences punishable under Sections 376, 506(2) and 323 of the Indian Penal Code, 1860 ("IPC" for short) and under Sections 3(1) (r)(s) and 3(2)(a) of the Atrocity Amendment Act, 2015.

(2.) Upon the registration of the FIR, the petitioner had filed anticipatory bail application before 9th Additional Sessions Judge, Vadodara and the same was rejected by the trial court after hearing the parties. Thereafter, the petitioner had preferred Criminal Misc.Application No.27992 of 2016 under Section 438 of the Code before this court and this court has issued rule and also directed that the petitioner shall remain present before the concerned Investigating Officer for questioning on 25.10.2016.

(3.) Mr.Bhargav Bhatt, learned advocate with Mr.Virendra Baheti, learned advocate for the petitioner has submitted that the petitioner is the victim of the circumstances and is falsely implicated in the present case by the prosecutrix. He has further submitted that the prosecutrix has admitted of having consented to sexual relationship on the basis of promise to marry and as per the settled legal position, if the present petitioner is unable to fulfill his promise, the same would per se not amount to offence of rape. He has relied upon the provisions of Section 375 of the IPC more particularly, description nos.4 and 6 and submitted that after the amendment in Section 375 of the IPC in the year 2013, the legislature has not fortified to introduce the offence of rape in the case of "consent given upon marriage". He has submitted that non inclusion of expression "consent given upon promise to marry is not being contemplated as "without consent" in definition clause of Section 375 of the IPC, hence, the commission of rape on the basis of alleged facts in the FIR, is clearly ruled out.