Read Order: Hardeep Singh @ Hardeep Sharma v. State of Punjab

Monika Rahar

Chandigarh, March 29, 2022: While dealing with a pre-arrest bail plea of an accused against whom an FIR under Section 377 IPC was registered by his wife for committing an act of unnatural sexual intercourse upon her on their wedding night, the Punjab and Haryana High Court has held that the Court is to strike the balance between the personal liberty and the overall interest of the society, while considering the plea for anticipatory bail. 

While denying bail to the accused-petitioner, the Bench of Justice Rajesh Bhardwaj added,“However, the interest of the society always prevail upon the right of personal liberty.”

The Instant petition was filed under Section 438 of Cr.P.C. praying for the grant of anticipatory bail to the petitioner in an FIR registered under Section 377 IPC by the wife of the petitioner (husband). 

As per the allegations levelled in the FIR, the marriage between the petitioner and the complainant took place on February 5, 2022. It was the allegation of the complainant/prosecutrix that her husband (the petitioner), during their wedding night, i.e. on February 7, 2022, forced her, when she was on her menstrual period to do oral sex with him and thereafter he committed unnatural sex with her. She further alleged that having no other alternative, the Wife deserted the matrimonial home and was later admitted to AP Jain Civil Hospital, Rajpura. 

Apprehending his arrest, the petitioner approached the Additional Sessions Judge, Sangrur for the grant of anticipatory bail which was declined. Aggrieved by the same, the petitioner approached the High Court by way of the present petition.

The petitioner’s counsel contended that the petitioner was falsely implicated in this case and that within a short span of marriage, false and frivolous allegations were levelled against him after the wife deserted the matrimonial home. He contended that in view of the provisions of Section 375 Exception 2 IPC, the alleged act did not amount to rape.  

Section 375 Exception 2 IPC provides that sexual intercourse or sexual acts by a man with his own wife not being under fifteen years of age is not rape. 

At the outset, the Court opined that the allegations levelled by the complainant/wife were not on account of the harassment and cruelty caused to her on account of demand of dowry, rather, the same were on account of unnatural sex with the complainant when she was passing through the period of menstruation.

Also, the Court noted that the investigation in the present case was at the threshold and at that stage, the Court stated that it could not go into the defence taken by the accused. The Court was of the opinion that the allegations prima facie did not warrant the Court to invoke the extraordinary jurisdiction under Section 438 Cr.P.C., as for the exercise of such power, the factors to be taken into consideration are the gravity of offence; the probability of the petitioner fleeing from justice; the probability of tampering with the ongoing investigation etc.

Hence, the petition was dismissed. 

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