IN A CASE DEALT BY SUPREME COURT OF INDIA: COURTS SHALL PRESUME ABSENCE OF CONSENT IN RAPE CASES IF THE PROSCUTRIX SAYS IT WAS NOT CONSENSUAL
Section 375 of the Indian Penal code (IPC) defines rape as the offence committed by a man having sexual intercourse with a woman “without her consent” and “against her will”. Explanation 2 appended to section 375 of IPC defines consent as “an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act”.
After highly publicized Delhi Gang Rape incident /Nirbhaya incident, Criminal Amendment Act, 2013 was passed by the Indian Parliament vide which many provisions were added in IPC, CrPC (Criminal Procedure Code) and Indian Evidence Act.
Through this Criminal Amendment Act 2013, section 114-A was inserted in Indian Evidence Act which provides that
“114A. Presumption as to absence of consent in certain prosecutions for rape.—In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub-section (2) of section 376 of the Indian Penal Code, (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent.”
Hon’ble Supreme Court of India in a recent judgment delivered on 25th October which involved a case of woman who accused her employer of repeatedly raping her and taking inappropriate pictures for the purpose of blackmail, has observed that,
“13. Having heard learned counsel for the parties and after perusing the impugned order and other material placed on record, we are of the view that the High Court exceeded the scope of its jurisdiction conferred under Section 482 CrPC, and quashed the proceedings. Even before the investigation is completed by the investigating agency, the High Court entertained the Writ Petition, and by virtue of interim order granted by the High Court, further investigation was stalled.
Having regard to the allegations made by the appellant/informant, whether the 2nd respondent by clicking inappropriate pictures of the appellant hasblackmailed her or not, and further the 2nd respondent has continued to interfere by calling Shoukin Malik or not are the matters for investigation. In view of the serious allegations made in the complaint, we are of the view that the High Court should not have made a roving inquiry while considering the application filed under Section 482 CrPC. Though the learned counsels have made elaborate submissions on various contentious issues, as we are of the view that any observation or findings by this Court, will affect the investigation and trial, we refrain from recording any findings on such issues. From a perusal of the order of the High Court, it is evident that the High Court has got carried away by the agreement/settlement arrived at, between the parties, and recorded a finding that the physical relationship of the appellant with the 2nd respondent was consensual. When it is the allegation of the appellant, that such document itself is obtained under threat and coercion, it is a matter to be investigated. Further, the complaint of the appellant about interference by the 2nd respondent by calling Shoukin Malik and further interference is also a matter for investigation. By looking at the contents of the complaint and the serious allegations made against the 2ndrespondent, we are of the view that the High Court has committed error in quashing the proceedings. During the course of hearing, learned counsel for the appellant, brought to our notice provision/Section 114-A of the Indian Evidence Act, 1872. Section 114-A of the Indian Evidence Act, 1872 deals with the presumption as to absence of consent in certain prosecution for rape.A reading of the aforesaid Section makes it clear that, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped, and such woman states in her evidence before the Court that she did not consent, the court shall presume that she did not consent.
14. Though Learned senior counsel Sri MukulRohatgi relied on the judgment of this Court dated 21st August,2019 in Criminal Appeal No.1165 of 2019, but we are of the view that the said judgment would not render any assistance to support his case. Whether in a given case power under Section 482 is to be exercised or not, depends on the contents of the complaint, and the material placed on record. In that view of the matter, we are of the view that it is a fit case to set aside the order passed by the High Court and allow the investigating agency to proceed with the further investigation in accordance with law. It is made clear that we have not expressed any opinion on the merits of the complaint, and it is open to the investigating agency and competent court, to proceed in accordance with law.”