Having sexual intercourse with consent obtained under misconception of fact as defined u/s 90 IPC, amounts to rape: Delhi HC while denying pre-arrest bail to Navy officer

Read judgment: Cdr. Kalesh Mohanan vs. State

Pankaj Bajpai

New Delhi, August 20, 2021: While refusing to interfere with the order passed by the Sessions Judge in declining anticipatory bail to an Indian Navy officer in a rape case, the Delhi High Court ruled that sexual intercourse with the consent of prosecutrix obtained under a misconception of fact as defined under section 90 of the Indian Penal Code (IPC), squarely falls within the definition of rape.

While reiterating that the consent said to have been obtained by the accused was not voluntary consent, the Single Bench of Justice Yogesh Khanna observed that the accused indulged in sexual intercourse with the prosecutrix by misconstruing to her his true intentions. 

The observations came pursuant to allegations made about an officer in the Indian Navy (petitioner) of having committed sexual intercourse with a woman (prosecutrix) on the pretext of marriage. 

The petitioner alleged that he and the prosecutrix were friends and being obsessed with the petitioner and wishing to extract money, the prosecutrix complained of physical relations with him. The petitioner however denied having any such relations and claimed that the prosecutrix started calling and insisting him to marry her, but the petitioner did not echo her sentiment. 

On his refusal to marry, the prosecutrix registered a complaint which culminated in registration of an FIR, which the petitioner was stated to have known through newspapers. Hence, he moved an application for bail before the Session’s Court, which came to be dismissed. 

“The defence taken by the petitioner they were only friends and he never made any promise to her or she was obsessed or she is here to extract money from him, appears to be factually incorrect. The allegation she is doing all this for money rather inflicts more pain to her injury. The investigation so far reveal he is trying to influence his subordinates and has destroyed / deleted the evidence against him,” found Justice Khanna. 

While reiterating that an educated person is not immune to cheating, the High Court found that the facts do show the petitioner and prosecutrix did have such relations to kindle a hope in the prosecutrix that the petitioner shall marry her at all costs. 

“No doubt, the petitioner is a senior officer in Indian Navy, hence was required to show a more responsible behavior than the prosecutrix. Can he be allowed to play with her dignity on the pretext he cohabited with her just for fun and later claim she is extorting money from him. Such allegations if not backed with proof are rather insulting,” noted Justice Khanna. 

Further, refuting with the contentions of inordinate delay in lodging FIR and quoting the decision of State of H.P. vs. Gian Chand [AIR 2001 SC 2075] & Dildar Singh vs. State of Punjab [(2006) 10 SCC 531], the High Court said that delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same. 

If the delay is explained to the satisfaction of the Court, the prosecution case cannot be disbelieved, added the Court. 

Justice Khanna also noted that since the petitioner is trying to influence the replies from his department, hence his custodial interrogation is required to find out the place when and where he had taken the prosecutrix. 

Therefore, reiterating that the act of the petitioner reflects his intention to cover up his wrongs by erasing the relevant electronic record/data, the High Court confirmed denial of anticipatory bail to the petitioner.