ORDER : 1. By way of the present petition under Section 438 of the Code of Criminal Procedure, 1973, the petitioner has prayed to release him on anticipatory bail in case of his arrest in connection with the FIR registered as C.R.No.11188006230199 of 2023 registered with Malpur Police Station, Aravalli. 2. Facts of the case are as under :- 2.1. It is alleged in the complaint that on 16.01.2023, first informant had gone to Malpur village for shopping. At around 3.00 pm she was returning to home and was waiting at auto stand. She saw the petitioner and other accused person in car of accused no.2 and therefore, she sought lift from them and they move towards Modasa. The petitioner told her that they would drop her at home. It is alleged that accused persons administered threat that if she would raise cry, they would kill her. Thereafter, they had taken her to Kachchh. It is alleged that petitioner committed forceful sexual intercourse with her several times. It is alleged that petitioner took her to different places and committed intercourse. It is alleged that first informant managed to take her phone back from petitioner and called her father. On 09.04.2023, she returned Malpur and got her statement recorded in missing complaint given by her father. Thereafter, as settlement could not be done, impugned FIR came to be filed. 3. Learned advocate for the petitioner submits that when incident took place, victim was major. She would further submit that not only she was major but she was already married to some other person and she took divorce and now married with some other person. He would submit that FIR is filed after delay of 12 days. It is submitted that though as per FIR victim was kept in closed house and was raped, but at no point of time, she raised her voice. It is submitted that Janvagoj information was registered by father of victim as she was missing, pursuant to which she remained present on 09.04.2023, at that time she has raised her voice and submitted that she was raped by accused. It is submitted that even if rape is committed, it is consensual relationship. It is submitted that Janvagoj information was registered by father of victim as she was missing, pursuant to which she remained present on 09.04.2023, at that time she has raised her voice and submitted that she was raped by accused. It is submitted that even if rape is committed, it is consensual relationship. Referring to Annexure-C, he would submit that what emerges from photo that victim who is already married was in deep love with accused and she has clicked photos with accused at her willingness that indicates that it was consent on the part of the accused and on the part of the victim. It is therefore, submitted that if entire act is believed, it is on consent of victim. It is further submitted that no case of custodial interrogation is made out. It is submitted that FIR is filed to save her 2nd marriage. It is submitted that the petitioner is ready and willing to join investigation as and when called by Investigating Officer. It is therefore, submitted to grant anticipatory bail to the petitioner. 4. On the other hand, learned APP would submit that on going through FIR, it appears that accused has kept victim in closed house and against her wish physical relationship was maintained. The victim was given threat to life. It is submitted that accused did not stop raping victim and he took victim at various place and raped her under threat. Thus offence is required thorough investigation and it can be done only if accused is in police custodial and therefore, it is submitted to dismiss the petition. 5. Having heard learned advocates for the parties, at the outset, let refer judgment of the Hon’ble Apex Court in the case of Sonu alias Subhas Kumar v/s. State of Uttar Pradesh [ AIR 2019 SC 4010 ]. In para 7 and 11, it is held as under :- “7. On the basis of the rival submissions and with the assistance of the counsel, we have perused the FIR. The FIR specifically records that the second respondent had developed a friendship with the appellant and that he had assured that he would marry her. In para 7 and 11, it is held as under :- “7. On the basis of the rival submissions and with the assistance of the counsel, we have perused the FIR. The FIR specifically records that the second respondent had developed a friendship with the appellant and that he had assured that he would marry her. The FIR then records that the appellant and the second respondent developed a physical relationship which spread over a period of one and a half years, during the course of which the second respondent conversed with the parents and sister of the appellant. It has been alleged in the FIR that the parents of the appellant were agreeable to the couple getting married. As a matter of fact, the appellant returned to his home town at Jhansi on 5 January 2018 when he had made a phone call to her stating that she should come and visit him so that they can get married. On travelling to Jhansi at the behest of the appellant, the second respondent was informed by the father of the 5 appellant that the appellant did not wish to marry her. The contents of the statement under Section 164 of CrPC also indicate that the second respondent had “voluntarily developed relationship of husband-wife with him”. The second respondent has then stated that “now, he and his family members are refusing to marry with me”. The second respondent has further stated that “my sole grievance is that Sonu is refusing to marry with me. 11. Bearing in mind the tests which have been enunciated in the above decision, we are of the view that even assuming that all the allegations in the FIR are correct for the purposes of considering the application for quashing under Section 482 of CrPC, no offence has been established. There is no allegation to the effect that the promise to marry given to the second respondent was false at the inception. On the contrary, it would appear from the contents of the FIR that there was a subsequent refusal on the part of the appellant to marry the second respondent which gave rise to the registration of the FIR. There is no allegation to the effect that the promise to marry given to the second respondent was false at the inception. On the contrary, it would appear from the contents of the FIR that there was a subsequent refusal on the part of the appellant to marry the second respondent which gave rise to the registration of the FIR. On these facts, we are of the view that the High Court was in error in declining to entertain the petition under Section 482 of CrPC on the basis that it was only the evidence at trial which would lead to a determination as to whether an offence was established.” 6. The Hon’ble Apex Court in the case of Dr.Dhruvaram Murlidhar Sonar v/s. State of Maharashtra [ (2019) 18 SCC 191 ], in para 23, it is held as under :- “23. Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must 16 very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 IPC.” 7. After referring judgment of Dr.Dhruvaram Murlidhar Sonar (supra), recently in the case of Naim Ahamed v/s. State (NCT of Delhi) [2023 LiveLaw (SC) 66], in para 19 and 20, it is held as under :- “19. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 IPC.” 7. After referring judgment of Dr.Dhruvaram Murlidhar Sonar (supra), recently in the case of Naim Ahamed v/s. State (NCT of Delhi) [2023 LiveLaw (SC) 66], in para 19 and 20, it is held as under :- “19. After duly examining the record in the light of the submissions made by the learned counsels for the parties, following facts have emerged: - (i) Prosecutrix was a married woman having three children. (ii) Accused was staying in a tenanted premises situated in front 17 of the house of the prosecutrix. (iii) Though initially hesitant, the prosecutrix developed liking for the accused, and both started having sexual relationship with each other. (iv) The prosecutrix delivered a male child on 28/10/2011 from the loin of the accused. (v) The prosecutrix went to the native place of the accused in 2012 and came to know that he was a married man having children. (vi) The prosecutrix still continued to live with the accused in separate premises. (vii) The prosecutrix and her husband took divorce by mutual consent in 2014 and thereafter prosecutrix permanently left her three children with her husband. (viii) The prosecutrix lodged the complaint on 21st March, 2015 alleging that she had consented for sexual relationship with the accused as the accused had promised her to marry and subsequently did not marry. 20. The bone of contention raised on behalf of the respondents is that the prosecutrix had given her consent for sexual relationship under the misconception of fact, as the accused had given a false promise to marry her and subsequently he did not marry, and therefore such consent was no consent in the eye of law and the case fell under the Clause – Secondly of Section 375 IPC. In this regard, it is pertinent to note that there is a difference between giving a false promise and committing breach of promise by the accused. In this regard, it is pertinent to note that there is a difference between giving a false promise and committing breach of promise by the accused. In case 18 of false promise, the accused right from the beginning would not have any intention to marry the prosecutrix and would have cheated or deceited the prosecutrix by giving a false promise to marry her only with a view to satisfy his lust, whereas in case of breach of promise, one cannot deny a possibility that the accused might have given a promise with all seriousness to marry her, and subsequently might have encountered certain circumstances unforeseen by him or the circumstances beyond his control, which prevented him to fulfill his promise. So, it would be a folly to treat each breach of promise to marry as a false promise and to prosecute a person for the offence under Section 376. As stated earlier, each case would depend upon its proved facts before the court.” 8. The bone of contention of the State was that victim was kept in closed house and there was threat to her live. If we examine FIR following undeniable facts appear :- (1) The victim was major at the time of incident. (2) The victim was 23 years of age. (3) The victim was knowing accused since long. Both of them entered into physical relationship at various place multiple times, but at no point of time she raised voice. (4) FIR was filed after delay of 12 days. (5) Though victim appeared before Malpur Police Station on 09.04.2023, she did not disclose the fact that she has been raped but FIR came to be filed on 20.04.2023. FIR indicates that she tried to settle the issue but since the issue was not compromised, she filed FIR. Prima facie, it appears that FIR is filed to take revenge or settle issue. (6) Photograph of victim and accused at Annexure C, prima facie disclose that there was physical relationship between accused and victim and it was consensual relationship. (7) The victim had taken divorce from her first husband and married to some other person after incident. 9. What appears from above that victim herself who is married lady and major aged 23 years could not be said under threat of life. Undisputedly, the victim continued to have relationship with accused. (7) The victim had taken divorce from her first husband and married to some other person after incident. 9. What appears from above that victim herself who is married lady and major aged 23 years could not be said under threat of life. Undisputedly, the victim continued to have relationship with accused. It can be inferred that victim being major women was matured and intelligent to understand the significance and the consequences of moral or immoral quality of act she was consenting to. The victim was seen closely with accused at several time in photos that shows her willingness. It is not her case that photos were taken under pressure or duress. She also went to accused to Kachchh. All these aspects indicate physical relationship between victim and accused and it was consensual one. 10. Let refer the judgment of Hon’ble Apex Court in the case of Bhadresh Bipinbhai Sheth Vs. State of Gujarat reported in AIR 2015 SC 3090 , wherein, the Hon’ble Apex Court delineated the following factors and parameters that needs to be taken into consideration while dealing with the anticipatory bail. “(a) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (b) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence; (c) The possibility of the applicant to flee from justice; (d) The possibility of the accused's likelihood to repeat similar or other offences; (e) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; (f) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; (g) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution, because over implication in the cases is a matter of common knowledge and concern; (h) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to free, fair and full investigation, and there should be prevention of harassment, humiliation and unjustified detention of the accused; (i) The Court should consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (j) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused in entitled to an order of bail.” 11. This Court while exercising discretion in favour of the petitioner has taken into consideration law laid down by the Apex Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and Ors. [2011] 1 SCC 694, wherein the Hon’ble Apex Court reiterated the law laid down by the Constitutional Bench in the the case of Shri Gurubaksh Singh Sibbia & Ors. Vs. State of Punjab (1980) 2 SCC 665 . This Court has also taken into consideration law laid down in the case of Sushila Agarwal v/s. State (NCT of Delhi [ (2020) 5 SCC 1 ]. 12. In the result, the present petition is allowed by directing that in the event of applicant herein being arrested pursuant to FIR registered as C.R.No.11188006230199 of 2023 registered with Malpur Police Station, Aravalli, the petitioner shall be released on bail on furnishing a personal bond of Rs. 12. In the result, the present petition is allowed by directing that in the event of applicant herein being arrested pursuant to FIR registered as C.R.No.11188006230199 of 2023 registered with Malpur Police Station, Aravalli, the petitioner shall be released on bail on furnishing a personal bond of Rs. 10,000/- (Rupees Ten Thousand only) with one surety of like amount on the following conditions that the petitioner : (a) shall cooperate with the investigation and make himself available for interrogation whenever required; (b) shall remain present at concerned Police Station on 01.02.2024 between 10.00 a.m. and 4.00 p.m.; (c) shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade him from disclosing such facts to the court or to any police officer; (d) shall not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police; (e) shall at the time of execution of bond, furnish the address to the investigating officer and the court concerned and shall not change residence till the final disposal of the case till further orders; (f) shall not leave India without the permission of the concerned trial court and if having passport shall deposit the same before the concerned trial court within a week; 13. Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate, for police remand of the petitioner. The petitioner shall remain present before the learned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the learned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining application of the prosecution for police remand. This is, however, without prejudice to the right of the accused to seek stay against an order of remand, if, ultimately, granted and the power of the learned Magistrate to consider such a request in accordance with law. It is clarified that the petitioner, even if, remanded to the police custody, upon completion of such period of police remand, shall be set free immediately, subject to other conditions of this anticipatory bail order. 14. It is clarified that the petitioner, even if, remanded to the police custody, upon completion of such period of police remand, shall be set free immediately, subject to other conditions of this anticipatory bail order. 14. If breach of any of the above conditions is committed by the petitioner, the concerned learned Judge will be free to take appropriate action in the matter. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions in accordance with law. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court while enlarging the petitioner on bail. 15. Direct service is permitted.