In a recent ruling, the Gujarat High Court granted bail to an individual who was booked under multiple sections of the Indian Penal Code (IPC), including Section 377, which pertains to unnatural offences. The Court noted that, prima facie, the relationship between the applicant and the complainant appeared to be consensual, making this a significant case in the evolving understanding of Section 377 after its partial decriminalization by the Supreme Court.
Background of the Case:
The case, registered as Criminal Miscellaneous Application No. 2024 of 2024, involved an FIR lodged at A Division Police Station, Junagadh. The FIR accused the applicant of offenses under Section 377 (unnatural offenses), Section 386 (extortion by putting a person in fear of grievous harm), and Section 389 (extortion by threatening false accusation). The allegations revolved around claims of coercion, extortion, and non-consensual acts of unnatural sex.
Arguments by the Defence:
The defence argued that the applicant had been falsely implicated in the case. They contended that the relationship between the complainant and the applicant was consensual, and therefore, Section 377, post the Navtej Singh Johar v. Union of India (2018) judgment, was not applicable in this case. The defence also argued that there was no material evidence to support the charges under Sections 386 and 389, as no actual threats or extortion were carried out.
Arguments by the Prosecution:
The State, represented by the Additional Public Prosecutor, opposed the bail application. The prosecution argued that the nature of the offence was serious and that the evidence pointed to the direct involvement of the accused in coercive and extortionary activities. The prosecution emphasized the gravity of the charges and contended that releasing the applicant on bail could impact the investigation or witness testimonies.
Key Legal Issues Involved:
1. Section 377 of the IPC (Unnatural Offences):
The primary issue was the applicability of Section 377 in light of the Supreme Court’s decision in Navtej Singh Johar, which decriminalized consensual sexual relations between adults. The defence argued that this precedent applied to the present case, as the relationship was consensual, while the prosecution maintained that coercion was involved.
2. Section 386 and Section 389 of the IPC (Extortion):
The case also involved charges of extortion under Sections 386 and 389, with the prosecution alleging that the accused threatened the complainant to extort money. The defence countered that there was no evidence of actual extortion or fear of grievous harm being inflicted upon the complainant.
Observations of the Court:
Justice Hasmukh D. Suthar, in his detailed order, granted bail to the applicant while highlighting several important aspects:
– Consensual Relationship: The Court noted, based on the investigation and evidence presented, that prima facie, the relationship between the complainant and the accused appeared to be consensual. The Court cited the Supreme Court’s landmark judgment in Navtej Singh Johar, which decriminalized consensual sexual acts between adults under Section 377.
– Extortion Allegations: On the charge of extortion under Sections 386 and 389, the Court observed that there was no material evidence to suggest that the accused had inflicted grievous harm or threatened to extort money from the complainant.
– Principle of Bail Jurisprudence: The Court underscored the well-settled legal principle that “bail is a rule and jail is an exception,” emphasizing the importance of personal liberty as enshrined in Article 21 of the Constitution. The judge further remarked that keeping the accused in custody when the trial could take a significant amount of time would be tantamount to “pre-trial conviction.”
– No Risk of Tampering: Justice Suthar also took into consideration that the investigation had been completed and the charge sheet had already been filed, reducing the risk of tampering with evidence. He also noted that there was no likelihood of the applicant fleeing or absconding.
Decision of the Court:
After considering the arguments from both sides and the material on record, the Gujarat High Court decided to grant bail under certain conditions:
1. Bail Granted: The applicant was released on regular bail in connection with FIR No. 11203023240428 registered at A Division Police Station, Junagadh. The Court ordered the applicant to furnish a personal bond of Rs. 25,000 with one surety of the like amount.
2. Conditions Imposed:
– The applicant shall not misuse his liberty or obstruct the ongoing investigation.
– He must surrender his passport, if any, to the trial court.
– He is restricted from leaving the state of Gujarat without prior permission from the trial court.
– The applicant is required to mark his presence at the concerned police station once a month for a period of six months.
3. Court’s Caution: The Court clarified that the observations made during the bail hearing were of a preliminary nature and should not influence the trial court in its determination of the facts.
4. Judicial Discretion: Justice Suthar further emphasized the importance of judicial discretion in granting bail, particularly when there is a lack of evidence of coercion or non-consensual acts. The Court observed, “keeping the accused behind bars without substantial evidence would amount to a pre-trial conviction, which is contrary to the celebrated principle of bail jurisprudence.”
