Woman agreeing to be in company of man not basis to infer consent for sexual liaison with him: Delhi High Court

The Delhi High Court on Tuesday said that a woman consenting to being in the company of a man can never be the basis to infer that she had consented to having a sexual relationship with him [Sanjay Malik @ Sant Sevak Das v The State & Anr]..“A distinction also needs to be articulated between a prosecutrix ‘consenting to a situation’ vs ‘consenting to sexual liaison’. Merely because a prosecutrix consents to being in the company of a man, regardless of for how long, can never be the basis to infer that she had also consented to sexual liaison with the man,” the court said.Justice Anup Jairam Bhambhani, therefore, denied bail to a man named Sanjay Malik @ Sant Sevak Das accused of raping a Czech national..The allegation was that the accused molested the woman on October 12, 2019 at a hostel in Delhi and subsequently engaged in physical liaison with her on January 31, 2020 at Prayagraj (Allahabad) and on February 7, 2020 at a hotel in Gaya (Bihar).It was the accused’s case that the FIR came to be registered only much later on March 6, 2022 at Delhi and the prosecutrix made no complaint nor any efforts to register any FIR at the various other places where she was claimed she was sexually assaulted.On the other hand, the prosecutrix said that the accused took advantage of her, pretending to be a ‘spiritual guru’ who would help her perform the post-demise rituals of her deceased husband who had passed away on August 8, 2019..After considering the case, Justice Bhambhani noted that that it was an admitted fact that the prosecutrix travelled with the petitioner from Prayagraj to Banaras to Gaya, all of which are places of Hindu worship and congregation, to perform the last rites and rituals of her deceased husband.Being a foreign national, unfamiliar with Hindu rites and ceremonies, she developed dependence upon the petitioner to bring a closure to the tragedy she had suffered, the Court noted.“Though it is true that the travel to the aforementioned places happened over a period of almost 4 months, and it is nowhere specifically alleged that the petitioner held the prosecutrix ‘hostage’ or that she was made to travel with him by use of physical force or restraint, in the opinion of this court, that alone would not be determinative of the state of the prosecutrix‟s mind, for the court to be able to say at this stage that the alleged sexual liaisons were consensual.”.The bench further said that though the first incident of physical relations is allegedly happened in a hostel in Delhi and the nature of the act alleged in that instance was not rape, the prosecutrix’s silence in relation to that act cannot be taken to be a license for more aggravated sexual liaison later.“In the aforesaid circumstances, in the opinion of this court, the critical aspect of the offence of rape viz. ‘consent’ as opposed to ‘compulsion’ requires a more nuanced consideration.”Justice Bhambhani concluded that in the present case, an aspect of particular concern was that the allegations disclosed deception and guile on the part of the petitioner in pretending to be a ‘holy man’ guiding a foreign national with pious post-demise ceremonies of her husband.“In fact, it appears to be the petitioner’s own stand, that he took the prosecutrix to Prayagraj, Banaras and Gaya for the post-demise ceremonies. At this stage however, this court is not re-assured that the petitioner would not interfere in the course of justice by practicing the same guile and deception. Whether the prosecutrix and her prime-witness are in India or abroad, the petitioner's attempt to intimidate or influence them, cannot be ruled-out.”.Therefore, the court dismissed the bail plea granting the liberty to apply afresh for the same relief before the trial court once the deposition of all prosecution witnesses is complete..Advocates Krishan Kumar, Shivam Bedi, SP Nangia and Gargi Singh appeared for the bail applicant.Additional Public Prosecutor Tarang Srivastava appeared for the State.Advocate Ashutosh Kaushik appeared for the prosecutrix. .[Read Order]