Interest of society will always prevail upon right to personal liberty: Punjab and Haryana High Court

Tribune News Service

Saurabh Malik

Chandigarh, March 24

The Punjab and Haryana High Court has ruled that the court has to strike a balance between personal liberty and overall interest of society while considering an anticipatory bail plea. However, the interest of society will always prevail upon the right to personal liberty. The assertion came as Justice Rajesh Bhardwaj dismissed the bail plea of a husband accused of unnatural sex with his wife on the wedding night. The husband had moved the court for anticipatory bail in a case registered after about a week of marriage on February 12 for unnatural sex under Section 377 of the IPC. The complainant/prosecutrix has lodged the FIR alleging that her husband, during their wedding night on February 7, forced her to indulge in oral sex and thereafter committed unnatural sex.

Having no alternative, she had to desert the matrimonial home and was admitted to a hospital at Rajpura. The counsel for the petitioner contended that he had been falsely implicated in the case. False and frivolous allegations were levelled against him after the wife deserted the matrimonial home within a short span of marriage. He contended that the alleged act did not amount to rape in view of Section 375, exception 2, of the IPC. It said: “Sexual intercourse or sexual acts by a man with his wife not being under 15 years of age, is not rape”.

Justice Bhardwaj asserted that it was a case where the marriage had taken place recently. The allegations levelled by the complainant/wife were not on account of harassment and cruelty on account of dowry demand. These were on account of unnatural sex with the complainant “when she was passing through the period of menstruation”.

Justice Bhardwaj added that the investigation was at the threshold. The court, at the current stage, could not go into the defence taken by the accused. The allegations, prima facie, did not warrant the court to invoke the extraordinary jurisdiction under Section 438 of the Code of Criminal Procedure (CrPC) for grant of anticipatory bail.

“For exercising the same, the factors to be taken into consideration are: The gravity of offence, the probability of the petitioner fleeing from justice and probability of tampering with the ongoing investigation,” Justice Bhardwaj added.

Dismissing the plea, Justice Bhardwaj asserted that the court from the facts and circumstances of the present case was convinced that the petitioner did not qualify for grant of anticipatory bail. The petition being devoid of any merit was as such dismissed.

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