Judgment · High Court

Mr. Moyukh Mukherjee, Ms. Sarmistha Basak Mr. Samrat Mandal Mr. Madhusudan Sur, Ld.APP, Ms. Puspita Saha Ms. Gopa Biswas, Mr. R. A. Khan Mr. Saikat Mallick …for the petitioner …for the State …for the de facto complainant State files DNA profiling report, which is taken on record. Learned Advocate for the petitioner submits that the victim left with the petitioner out of her own volition. There are no such allegations of any forcible penetrative sexual assault. The victim and the petitioner are Muslims and they have married each 2 other. The victim is aged about 15 years. As per Exception 2 to Section 375 of the Indian Penal Code (in short, ‘IPC’), containing definition of ‘rape’ sexual intercourse or sexual acts by a man with own wife, the wife not being under fifteen years, is not rape. Thus, the offence alleged does not lie against the petitioner. The petitioner is in custody for 515 days. Upon completion of investigation, charge sheet has been submitted.

He seeks for enlargement of the petitioner on bail. Learned Advocate for the State, opposing such prayer for bail, submits that the petitioner has entered into sexual intercourse with a minor girl resulting in pregnancy of the minor, which is also evident from the DNA profiling report. He seeks for dismissal of the bail application. Learned Advocate for the de facto complainant submits that the victim is presently studying in Class X and if bail is granted in favour of the petitioner, her studies will be affected. She seeks for dismissal of the bail application. Perused the case diary and the materials on record. The victim in her statement before the Magistrate has not made any allegation of any forcible sexual assault upon her. Upon completion of investigation, charge-sheet has already been submitted. The petitioner is in custody for 515 days. Considering the above, I am inclined to grant bail to the petitioner on stringent conditions.