When Element Of Consent Comes Into Picture, Balance Of Convenience Automatically Goes In Accused’s Favor: Gujarat High Court Grants Bail To Rape Accused

The appeal before the High Court was filed under Section 14-A of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989, read with Section 483 of the Bhartiya Nagrik Suraksha Sanhita, 2023, for the grant of regular bail.

The Single Bench of Justice Divyesh A. Joshi said, “...when the said act of sexual intercourse is consistent but not within or at the same place or premises, and the victim is also moving freely during the period between each sexual intercourse, and also had a chance to disclose about such an act being committed upon her to an individual, but she did not, then the said approach of the victim girl can be presumed to be consent, and when there is a slightest element of consent comes into picture, then the balance of convenience automatically goes in favour of the accused while considering the bail application.”

Advocate Zubin Bharda represented the Appellant while Raj Yagnik represented the Respondent.

Factual Background

It was the complainant’s case that she is an illiterate rustic villager who started working in the field of the applicant along with her husband. It was alleged that the applicant took advantage of her social, economic and cultural vulnerability and used her under duress and coercion. Failure of her verbal objections during every instance of rape and the silence being kept by her after each instance was presumed and preserved to be a consent and contribution to the sexual intercourse. It was also brought to the Court’s notice by the complainant after the registration of the FIR, all efforts were being made by the applicant by tooth and nail to get himself scot free; however, the complainant did not give up.

Reasoning

Referring to Section 376 (2)(n) of the IPC, the Bench noted that it is stated therein that an accused is held to be guilty of the offence of rape when he commits rape repeatedly on the same woman. As per the Bench, the case would fall under such a category when the intercourse is being done by the accused by force or by illegally detaining a girl or a woman under his custody for some time, and there was no chance for the victim to run away.

“Here, in the instant case, at the time of the alleged offence, as per the say of the applicants’ counsel, the complainant was major, aged about 30 years and was matured enough to understand what is right and what is wrong and what would be the consequences of a particular act being allowed to be done upon her, and any kind of resistance against the said act does not require any particular language to be acquainted withy by the complainant, and she just had to make a shouting and crying for help whose husband was just sleeping upstairs, and in the absence of such an action being taken by the victim, it can be presumed that it was a consensual intercourse”, it added.

As per the Bench, the allegations did not make out a case under any of the other categories as mentioned in Section 376, requiring the applicant-accused to further languish in jail. On a perusal of the facts of the case, the Bench found that the applicant-accused and the complainant were in a relationship for the past month, and she had known the applicant-accused since a long time. Moreover, the applicant had been languishing in jail since February 2, 2025 and had also spent a considerable period in judicial custody.

Thus, allowing the application, the Bench ordered the applicant to be released on regular bail.

Cause Title: Chandubhai Vashrambhai Sardhara (Patel) v. State of Gujarat & Anr. (Case No.: R/Criminal Appeal (Regular Bail- After chargesheet) No. 788 of 2025

Appearance

Appellant: Advocates Zubin Bharda, Nipul H Gondalia, Kishan Prajapati

Respondent: Advocate Raj Yagnik, Addl. Public Prosecutor Jay Mehta

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