The consensual nature of a relationship and the need to protect the identity of the victim in cases under Section 376 of the Indian Penal Code.

JUDGMENT

1. Admit.

2. Present appeal has been filed by the appellant under Section 14-A(2) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the "Atrocities Act") to challenge the order of rejection of his bail application under Section 438 of the Code of Criminal Procedure by learned Special Judge, under the Atrocities Act, Aurangabad in Bail Application No.2100 of 2022 on 04.11.2022.

3. Respondent No.2 is the original informant, who has filed FIR vide Crime No.161 of 2022 with Vedant Nagar Police Station, District Aurangabad for the offences punishable under Sections 376, 313, 323, 506 of Indian Penal Code and under Sections 3(1)(r), 3(1)(s), 3(2), 3(2) (va) of the Atrocities Act on 20.10.2022 contending that during the period 27.07.2020 to 22.04.2022, the present appellant has committed sexual intercourse with the informant by giving promise to marry and also caused abortion of the informant, though the appellant was knowing that she is a member of Scheduled Caste and in March 2022, the appellant had abused her in the name of caste.

4. The learned Special Judge under the Atrocities Act has rejected the application on the ground that it is barred under Section 18 and 18-A of the Atrocities Act. Hence, this appeal.

5. Heard learned Advocate Mr. M. S. Karad for the appellant, learned APP Mrs. Preeti Diggikar for respondent No.1 - State and learned Advocate Mr. A. K. Bhosale for respondent No.2.

6. It has been vehemently submitted on behalf of the appellant that perusal of the FIR lodged by respondent No.2 would show that she is 27 years old lady. She got married in 2010 and has son aged 10, however, her husband expired in 2019. But even two years prior to the death of the husband, she was residing with her parents. She has stated that the present appellant had given her friend request on facebook and that's how they came in contact with each other. The appellant had expressed his love to her. She states that the appellant had knowledge about the death of her husband, but given her promise that he would perform marriage with her and maintain her son. In view of the said promise, she used to go to the places where the appellant used to call her. She has given certain dates and the places i.e. the lodge where according to her when she had gone to meet appellant, the appellant had sexual intercourse with her against her wish. It is then stated that she became pregnant in 2020-2021 from the appellant, but the appellant used to give her threats, because of which she got herself aborted. Whenever she used to ask for marriage, the appellant was avoiding on one or the other pretext. She has then stated that in the month of March 2022, the appellant had abused her in the name of caste. She then states that on 22.04.2022, she was forcibly taken in a car to a lodge. She was assaulted there and her obscene pictures were taken. Threat was given that those photographs would be made viral and, therefore, she had not lodged any report. The said story would show that at one place she says that there was love affair between them and then at another place she denies it. If the appellant was having love affair with her, then there cannot be question of insult in the name of her caste. It is not her case that she had not disclosed her caste to the appellant. The offence under the Atrocities Act cannot be said to have been made out. It has been wrongly inferred by the learned Special Judge that the application filed by the present appellant under Section 438 of the Code of Criminal Procedure was barred under Section 18 of the Atrocities Act. Further, during the pendency of the present appeal when the interim protection was granted, the investigating officer has completed the investigation and filed the charge-sheet before the learned Special Judge, under the Atrocities Act. Under such circumstance, the physical custody of the appellant is not necessary.

7. Per contra, the learned APP as well as lear