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‘Insistence can’t be taken as coercion or fear’: Delhi HC grants anticipatory bail in rape case

The court made the observation while hearing a plea by journalist Varun Hiremath, who is accused of raping a woman in February. According to him, the incident was consensual.

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New Delhi: The Delhi High Court Thursday granted anticipatory bail to journalist Varun Hiremath in a rape case filed against him, observing that insistence on the part of the accused “cannot be construed as coercion or fear”.

Hiremath, whose bail plea had been rejected by a trial court, moved the high court last month, contending that the alleged incident on 20 February was consensual.

In her order Thursday, Justice Mukta Gupta noted that the prosecutrix in her statement — recorded under section 164 of the Code of Criminal Procedure (recording of confessions and statements) — said “no” to the sexual intercourse, but took off her clothes on her own on the insistence of the petitioner.

“Insistence cannot be construed as coercion of fear,” said the justice.

The court also noted that even for oral intercourse, the prosecutrix kept swaying her head, which meant “no”.

“She further stated that though she agreed to vaginal intercourse with condom but in her mind she had thought that she will not agree for the same… What was going on in the mind of the prosecutrix would not be known to the petitioner,” said Justice Gupta.

The court noted that the mandate of Section 90 of IPC (consent given under fear or misconception) is that the “accused must know that the consent was under a fear of injury or misconception of facts”.

“In the circumstances, as the prosecutrix continued participating in the acts on insistence and what was going on in her mind was conveyed to the petitioner or not is an issue required to be determined in trial,” the order said.

While pronouncing the order, Justice Gupta said, “I have disposed of the application, granted anticipatory bail but I am not uploading the order on the website because I have noted the statement under Section 164 CrPC”.


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The case

In her complaint and statement in front of the magistrate, the 22-year woman has accused Varun Hiremath, an anchor with ET Now, of rape at a five-star hotel in Chanakyapuri on 20 February.

Hiremath has contested this, saying he has been falsely implicated and the encounter was consensual.

According to the FIR, Hiremath and the woman had known each other since 2017. On the day of the incident, the two initially met at a Khan Market café, after which he asked her to come over to his hotel room where the alleged crime took place.

Hiremath approached the Delhi High Court after his anticipatory bail plea was dismissed by a trial court in Delhi on 12 March and a non-bailable warrant was issued against him.

While rejecting the plea, the trial court had said that “consent” cannot be implied “from her previous experiences with the accused”, and that if the woman stated before the court that she did not consent, the court shall presume that she did not.

The high court had granted Hiremath protection from arrest on 9 April on the condition that he will join the investigation.

Hiremath had been on the run since 23 February after an FIR was registered against him under sections sections 376 (punishment for offence of rape), 342 (punishment for wrongful confinement) and 509 (word, gesture or act intended to insult modesty of a woman) of the Indian Penal Code at the Chanakyapuri Police Station.

Meanwhile, the woman approached the high court seeking transfer of the probe to the Central Bureau of Investigation.


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