Current Affairs

Source - Bombay High Court

Why in News?

Recently, in the case of Bablu Jumman Shaikh v. State of Maharashtra, the Bombay High Court has granted anticipatory bail to a lawyer accused of raping his client, observing that the relationship appeared consensual.

Background

• The Applicant and the first informant got acquainted with each other in the month of January 2023.
• The first informant claims that the Applicant who is a lawyer by profession, was helping her with her litigation.
• He represented to her that he was unmarried and had sexual intercourse with her without her consent on a false promise of marriage.
• In March 2023, the first informant lodged the First Information Report (FIR) under Section 376 of the Indian Penal Code, 1860 (IPC).
• The Court granted him anticipatory bail on an application under Section 438 of the Criminal Procedure Code, 1973 (CrPC).

Court’s Observations

• Justice Anuja Prabhudessai observed that the material on record particularly WhatsApp chats, messages, prima facie indicate that the first informant was in constant contact with the Applicant not only after the alleged date of the incident but even after lodging the FIR i.e., even after knowing that he is a married man.
• The Court further added that prima facie, the relationship appears to be consensual.

Legal Provisions

Section 376, IPC

• Section 376 deals with the punishment for rape.
• The punishment for committing rape is rigorous imprisonment for ten years which may extend to life Imprisonment and a fine.
• The offence under section 376 IPC is non-bailable and cognizable.
• By virtue of Criminal Amendment Act, 2013, the following amendments were made in Section 376 of IPC.
• Section 376A was inserted which states that if a person has committed the offence of rape, which resulted in her death, or being in a vegetative state or injured, then he shall be punished with imprisonment of 20 years, which may extend to life imprisonment.
• Section 376B was inserted and as per this section if a husband is guilty of raping his wife after their separation, he will be imprisoned for 2 to 7 years and a fine.
• Section 376C was inserted which states that if a person in any authority commits rape, then the person will be punished with imprisonment of a minimum of five years, which may extend to 10 years and a fine.
• Section 376D was inserted which provides for punishment for gang rape is 20 years which may extend to life Imprisonment.
• Section 376E was added which states that second convictions for rape will lead to life imprisonment.
• The following amendments were made in Section 376 by virtue of the Criminal Amendment Act, 2018.
  • The minimum punishment for rape of a woman was increased from 7 years to 10 years.
  • Rape of a girl below the age of 16 years will carry the minimum punishment of 20 years, which can be extended to life imprisonment.
  • Section 376AB was inserted, which states that rape of a girl below the age of 12 years will carry the minimum punishment of 20 years, which can be extended to life imprisonment or death penalty.
  • Section 376DA was inserted, which states that in case of gang rape of a girl under the age of 16 years, the punishment will be of a life sentence.
  • Section 376 DB states that in case of gang rape of a girl below the age of 12 years, the punishment will be life sentence or death.
• Section 375 of IPC defines rape, and it includes all forms of sexual assault involving non-consensual intercourse with a woman.
• This provision, however, lays down two exceptions as well.
  • Apart from decriminalizing marital rape, it mentions that medical procedures or interventions shall not constitute rape.
  • Exception 2 of Section 375 of the IPC states that “sexual intercourse by a man with his wife, and if the wife not being under fifteen years of age, is not rape”.
• In Vijay Jadhav v. State of Maharashtra and Anr. (The shakti mills Rape Case) (2013), the Bombay High Court declared Section 376E of the IPC, as constitutionally valid.
• In Mukesh & Anr. v. State for NCT of Delhi & Ors. (The Nirbhaya Case) (2017), the Supreme Court upheld the death penalty awarded to the accused and stated that the case fell under the “rarest of rare” category. This incident brought the 2013 criminal law amendment.

Section 438, CrPC

• Section 438 of CrPC deals with the provision of Anticipatory Bail.
• Under Anticipatory Bail, an accused can apply for bail before being arrested.
• It is issued by the Sessions Court and the High Court.
• This bail is discretionary, and the court may grant bail after considering the nature and gravity of the offence.
• The Anticipatory Bail can have any of the following conditions as mandated by the CrPC, 1973:
  • The applicant would make himself available for interrogation as and when needed, meaning he would cooperate with the investigations.
  • The applicant would not induce, threaten or dissuade any witness.
  • The applicant would not leave India without prior permission of the court.
  • Any other condition like bail bond/ not being in vicinity/ not contacting complainant/ witness which the court may deem fit.
• Sec. 437(5) & Sec. 439 of CrPC deal with the cancellation of anticipatory Bail. The Court is empowered to cancel the bail or recall the order related to bail upon appropriate consideration of facts.
• In Gurbaksh Singh Sibbia v. State of Punjab (1980), the Supreme Court ruled that Sec. 438(1) of CrPC should be interpreted in the light of Article 21 (protection of life and personal liberty) of the Constitution. The Court also held that granting of anticipatory bail as a matter of right of an individual should not be limited by time.
• In Salauddin Abdulsamad Shaikh v. State of Maharashtra (1995), the Supreme Court overruled its earlier judgment and held that granting of anticipatory Bail should be limited by time.
• In Sushila Aggarwal and others v. State (NCT of Delhi) (2020), the Apex Court held that Anticipatory bail as a general rule will not be limited to a fixed period of time.