Delhi High Court: In a case wherein a man pretending to be a spiritual guru was alleged of molesting and having a physical liaison with a Czech national woman on the pretext of helping her perform the last rites of her deceased husband and sought grant of regular bail in case registered under Sections 354 and 376 of the Penal Code, 1860, a Single Judge Bench of Anup Jairam Bhambhani, J.* opined that merely because the woman agreed to accompany the spiritual guru to various holy places for the purposes of conducting last rites and rituals, did not ipso facto imply that she consented to sexual relations with him. Further, the Court denied granting a regular bail as the Court was not re-assured that the petitioner (spiritual guru) would not interfere in the course of justice by practicing the same guile and deception.
Background
In the present case, the Counsel for the petitioner submitted that though the petitioner denied having any physical relations with the prosecutrix, who claimed to be a Czech national, in any case, the prosecutrix was a major and any physical relations with her were entirely consensual. It was submitted that though the prosecutrix alleged that the petitioner molested her in Delhi and subsequently engaged in physical liaison with her in Prayagraj and Gaya, the FIR was registered much later and the prosecutrix made no complaint nor any efforts to register FIR at the place where she claimed to be sexually assaulted.
Counsel for the petitioner further submitted that though in the FIR, the prosecutrix alleged that the petitioner 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, those allegations were false, and the petitioner did in fact guide her through those post-demise rituals. A print-out of WhatsApp messages exchanged between the petitioner and the prosecutrix showed that the prosecutrix had saved the petitioner’s mobile number on her phone with the appellation ‘Tharki Guru’, which belied the pretended innocence of the prosecutrix. Counsel for the petitioner submitted that these aspects showed that the physical liaisons between the petitioner and the prosecutrix were consensual, which was why the prosecutrix never made any complaint nor did she thwart any physical advances when she travelled freely with the petitioner to Prayagraj, to Banaras and to Gaya.
It was submitted by the respondents that mere delay in registration of the FIR was never fatal and that the petitioner was a manipulative person, who represented himself to be a spiritual guru, and played on the prosecutrix’s vulnerabilities after the untimely demise of her husband; and this gave to the petitioner an element of dominance over the prosecutrix, which he exploited unashamedly. It was further submitted that there was no medical evidence in support of any of the incidents of physical assault since no MLC was ever conducted. It was also submitted that the petitioner was an influential person in Gaya, which was the reason why no police complaint was made by the prosecutrix at that place; and the prosecutrix was so fearful of the petitioner that she de-boarded the train without informing him, to escape from his clutches and only when she was in a fit mental state, did the prosecutrix muster-up the courage to register the FIR and took steps to have the petitioner apprehended.
Analysis, Law, and Decision
The Court noted that the prosecutrix had lost her husband in a tragic and untimely manner and was therefore, in an emotionally vulnerable state and the prosecutrix travelled with the petitioner from Prayagraj to Banaras to Gaya, all of which were places of Hindu worship and congregation, to perform the last rites and rituals of her deceased husband, and 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 opined that the prosecutrix’s silence in relation to the incident of physical relation that happened in Delhi could not be taken to be a license for more aggravated sexual liaison. The Court further opined that “though it was universally accepted that consent given under force, coercion or duress was no consent in law since it is not free or volitional, but in many cases it was necessary to examine consent in a more granular manner, with the awareness that substantivity of consent might also be vitiated by several other circumstances that eroded the freedom of choice. Several circumstances, including emotional exploitation, might vitiate the substantivity of consent”.
The Court opined that a distinction needed to be articulated between a prosecutrix ‘consenting to a situation’ v. ‘consenting to a sexual liaison’ and merely because the prosecutrix consented to being in the company of a man, regardless of for how long, could never be the basis to infer that she had also consented to sexual liaison with the man. Thus, the Court opined that in the present case, merely because the prosecutrix agreed to accompany the petitioner to various holy places for the purposes of conducting last rites and rituals, did not ipso facto imply that she consented to sexual relations with him.
The Court stated that the allegations disclosed deception and guile on the part of the petitioner in pretending to be a ‘holy man’ and guiding a foreign national with pious post-demise ceremonies of her husband. Therefore, the Court held that this Court was not re-assured that the petitioner would not interfere in the course of justice by practicing the same guile and deception and whether the prosecutrix and her prime-witness were in India or abroad, the petitioner’s attempt to intimidate or influence them, could not be ruled-out. Thus, the Court dismissed the present bail petition and held that the Court was not persuaded to admit the petitioner to regular bail at this stage.
[Sanjay Malik @ Sant Sevak Das v. The State, 2023 SCC OnLine Del 1477, decided on 14-3-2023]
Advocates who appeared in this case :
For the Petitioner: Advocate Krishan Kumar;
Advocate Shivam Bedi;
Advocate S.P. Nangia;
Advocate Gargi Singh;
For the Respondents: APP Tarang Srivastava.
*Judgment authored by: Justice Anup Jairam Bhambhani.