New Delhi, March 15 The Delhi High Court has said that a woman's agreement to be in a man's company can never be used to imply that she agreed to have a sexual relationship with him.
"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.
A bench of Justice Anup Jairam Bhambhani was hearing the bail plea of Sanjay Malik, also known as Sant Sevak Das, which has been denied.
Malik is accused of raping a Czech national on October 12, 2019, in a Delhi hostel before having physical relations with her on January 31, 2020, in Prayagraj, and on February 7, 2020, in a hotel in Gaya, Bihar.
According to the accused, the prosecutrix did not file any complaints or make any attempts to file any FIRs in the many other locations where she claimed she was sexually attacked, and it was only much later, on March 6, 2022, in Delhi that the FIR was finally filed.
The prosecutrix, on the other hand, claimed that the accused abused her by posing as a "spiritual guru" who could assist her in carrying out the funeral rites for her departed spouse, who had gone away on August 8, 2019.
The prosecutrix travelled with the petitioner from Prayagraj to Varanasi to Gaya, all of which are centres of Hindu devotion and assemblage, to carry out the final rites and ceremonies of her deceased husband, Justice Bhambhani noted after reviewing the case.
She became dependent on the petitioner to help her put an end to the trauma she had experienced because she was a foreign person and was unfamiliar with Hindu rites and ceremonies, the court noted.
"Though it is true that the travel to the aforementioned places happened over a period of almost four 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 prosecutrixaYs mind, for the court to be able to say at this stage that the alleged sexual liaisons were consensual," the court said.
It further stated that although if the first instance of physical contact is alleged to have occurred in a hostel in Delhi and the alleged act was not rape, the prosecutrix's silence over that act cannot be interpreted as approval for more, more violent sexual contact in the future.
"In the 'foresaid 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," the judge said.
In the present case, Justice Bhambhani stated that the allegations revealed deception and guile on the part of the petitioner in pretending to be a "holy man" assisting a foreign national with reverent post-death ceremonies for her husband. This aspect of the case was particularly concerning, he added.
"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," the court said.
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