It is, thus, clear that there cannot be any straitjacket formula whether the consent was under misconception or it was a free consent. It also cannot be ignored that the investigation is at preliminary stage and the applicant seeks bail under Section 438 of the Code of Criminal Procedure. The facts of this case are very peculiar. The applicant was a police officer holding a rank of Police Inspector. Despite repeated queries from the Court it was not made clear as to when and how the applicant came into contact with the complainant, if he denies the allegations made by the complainant. In these circumstances, the case of the complainant that the first ever sexual act on the part of the applicant on 24th January, 2009 at the house of the applicant had occurred after the complainant was administered some intoxicant, cannot be thrown away. Considering the serious nature of the allegations, particularly recording of the incident on mobile phone and the stand of the applicant that the mobile phone is lost, the case needs thorough investigation. The investigation has been handed over to the local C.I.D. Grant of bail under Section 438 of the Code of Criminal Procedure in such a case would hamper further investigation and foreclose all the chances of further detail investigation.
