Read Order: Kuldeep @ Kalu v. State of Haryana

Monika Rahar

Chandigarh, March 23, 2022: While dealing with a case involving the allegations of rape wherein the prosecutrix was not appearing before the Trial Court for her examination in spite of being summoned to do so, the Punjab and Haryana High Court has held that though, as a matter of prudence the court normally considers the bail after examination of the prosecutrix, however, in case the same is being misused by the parties to prolong the trial, the same has to be deprecated. 

The present petition before the Bench of Justice Rajesh Bhardwaj was filed under Section 439 Cr.P.C. seeking the benefit of regular bail to the petitioner in case FIR registered under sections 376, 452, 506 IPC. As per the factual matrix, the FIR in question was lodged by the prosecutrix (a widow, aged 42 years) alleging that the present petitioner (Kuldeep @ Kalu) forcibly entered her house and established physical relations with the prosecutrix. In order to save her honour, she kept mum for many days. However, in August of 2018, the petitioner again trespassed in her home and a fight took place between her family members and Kuldeep, as a result, the present FIR was registered. 

After one and a half years, the petitioner was arrested. He approached the Addl. Sessions Judge, Fast Track Court, Karnal for grant of bail, however, the same was declined. Aggrieved, the petitioner has approached the High court for the grant of bail. 

It was the case of the petitioner’s counsel that the petitioner was implicated in the present FIR to settle the score. As per his case, on August 4, 2018, a fight broke between the petitioner and the son of the prosecutrix in which the petitioner was beaten up and resultantly, the petitioner lodged an FIR against the said son. Thus, out of vengeance, the prosecutrix lodged the FIR in question on the very next day, argued the Counsel.

Further, the counsel submitted that the petitioner was a habitual litigant and that in 2013 she eloped with the petitioner out of her free will, leading to the registration of an FIR by her husband (when he was alive) against the petitioner. Also, it was the counsel’s case that if at all the allegation were taken on its face value, this could be called an act of consensual physical relationship, thus doing away with the office of rape under Section 376 of the IPC. Lastly, the counsel contended that the petitioner was behind bars since February 2020 and despite being given a number of opportunities, the prosecutrix was intentionally not appearing before the Trial Court for her examination.

Opposing the petitioner’s bail plea, the state counsel argued that after the lapse of about one and a half years of the registration of the FIR, the petitioner was arrested in February 2020 and that the prosecutrix levelled specific allegations against the petitioner. It was also submitted that already the petitioner was involved in two other FIRs. However, the State counsel ‘candidly’ submitted that despite summons being issued to the prosecutrix, she did not appear before the Trial Court. 

After considering rival submissions, the Court opined that admittedly, the petitioner was behind bars since February 2020 and both petitioner and the prosecutrix were of the age of majority. Also, as argued by the petitioner’s counsel, the prosecutrix eloped with the petitioner and she also deposed in her statement recorded under Section 164 Cr.P.C. that she went with the petitioner of her own free will. 

Further, the Court opined that despite opportunities being given, the prosecutrix was not appearing before the Trial Court. Though, as a matter of prudence, the court normally considers the bail after examination of the prosecutrix, however, in case the same is being misused by the parties to prolong the trial, the same has to be deprecated, opined the Court. 

Additionally, the Court added that it would refrain from commenting on the merits of the case, as the allegations and counter-allegations would be assessed only after evaluation of the complete evidence led by both sides before the Trial Court. Also, whether a case under Section 376 I.P.C is made out against the petitioner or not would be evaluated by the Trial Court after the conclusion of the trial. The trial would take a sufficiently long time in its conclusion, added the Court. 

Thus, against this backdrop, without making any observation on merits, the present petition was allowed. 

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