ORDER :

This is an application seeking pre-arrest bail filed under Section 438 of Code of Criminal Procedure, 1973.

2. Petitioner seeks pre-arrest bail in Crime No.265/2022, of Town South Police Station, Palakkad District, alleging offences under Section 376(2)(n) of the Indian Penal Code, 1860.

3. The prosecution case is that the petitioner with false promise of marriage, seduced the de-facto complainant into indulging in sexual relationship on 01.04.2021 at Guruvayoor, on July 2021 and yet again on the onam day in August, 2021 and thereby, committed the offences alleged against him.

4. Shri.Sajan Vargheese.K., the learned counsel for the petitioner submitted that the entire prosecution case is false and that the alleged victim is a married lady with two kids and that in such circumstances, the very basis of the prosecution case fails. It was further pointed out that the offences are alleged to have been committed at the time when the victim remained married and during the subsistence of her legal marriage, she could not have, under any circumstances whatsoever, assumed that the petitioner could have married her.

5. Shri.Noushad K.A., the learned Public Prosecutor submitted that the petitioner is required for custodial interrogation, especially since the allegations are serious in nature. It was further submitted that a divorce petition was filed on 08.12.2021 to dissolve the marriage of the victim with her husband and by order dated 20.06.2022, her marriage was dissolved and therefore, the victim is at present, not involved in any legal marriage.

6. Shri.Joseph Rony Jose, the learned counsel for the defacto complainant/victim contended that the petitioner was an employee in an establishment run by her and that she was subjected to repeated sexual assaults amounting to rape, under the guise of promise of marriage and thereafter, the petitioner backed out of the promised marriage. It was also pointed out that the act committed by the petitioner, being serious in nature, pre-arrest bail ought not to be granted.

7. This Court, as well as Supreme Court, has time and again observed that there cannot be a promise to marry when the victim is in a subsisting marriage. See the decision in Anil Kumar v. State of Kerala [2021 (2) KLT 83] and XXX v. State of Kerala and Another [2022 KHC 296]. Admittedly, the marriage of the victim with her husband was dissolved only on 20.06.2022. In such circumstances, I am prima facie satisfied that petitioner ought to be protected with an order of pre-arrest bail.

8. Accordingly, this application is allowed on the following conditions:

(i) Petitioner shall appear before the Investigating Officer on 01.07.2022 and shall subject himself to interrogation.

(ii) If after interrogation, the Investigating Officer proposes to arrest the petitioner, then, he shall be released on bail on him executing a bond for Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties each for the like sum, before the Investigating Officer.

(iii) Petitioner shall appear before the Investigating Officer as and when required and shall also co-operate with the investigation.

(iv) Petitioner shall not intimidate or attempt to influence the witnesses; nor shall he tamper with the evidence or contact the de-facto complainant/victim or her family members.

(v) Petitioner shall not commit any offence while he is on bail.

(vi) Petitioner shall not leave India without the permission of the Court having jurisdiction.

9. In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation, if any, and pass appropriate orders in accordance with the law, notwithstanding the bail having been granted by this Court.