ORDER :

1. This is an application for pre-arrest bail under Section 438 of the Cr.P.C.

2. Petitioner is the accused in Crime No.1749 of 2021 of Marad Police Station, Ernakulam, alleging offences under Section 376 (2)(n) of the Indian Penal Code, 1860 r/w Section 3(2) of the Scheduled Castes and the Scheduled Tribes, (Prevention of Atrocities) Act, 1989.

3. The prosecution case is that, the accused sexually abused the defacto complainant a married woman, for almost five years under the promise of marriage and that subsequently accused retracted from his promise thereby by committing the offences under Section 376. The prosecution also alleges that petitioner had called the defacto complainant by her caste name, which is a caste notified as a scheduled caste under the proclamation.

4. The prosecution submitted that this bail application is not maintainable in view of the Bar under Section 18 of the SC/ST Act.

5. Sri.Syam J.Sam, the learned counsel for the petitioner contended that, even if the entire allegations of the defacto complainant are admitted, still it will only reflect a consensual relationship and not a case of rape. It was further pointed out that, the offence under SC/ST Act is not at all made out as against the petitioner and therefore, application for pre-arrest bail is maintainable.

6. Sri.Ajith George, the learned counsel for the defacto complainant on the other hand contended that petitioner had been subjected to repeated sexual intercourse for almost five years with the promise of marriage and that the petitioner is now wriggling out of the said promise thereby constituting an offence of rape as her consent for sex was obtained based on that promise. It was also pointed out that the bail application itself is not maintainable, in view of the Bar under Section 18 of SC/ST Act.

7. The learned Public Prosecutor opposed the grant of pre-arrest bail and submitted that the custodial interrogation is required especially for eliciting various aspects relating to the alleged crime. The objection on maintainability of this application was also raised.

8. I have considered the rival contentions.

9. The petitioner is aged 39 years, while the victim is also aged 39. Victim has a subsisting marriage though divorce case is pending and she is the mother of two children. Even before divorce was obtained, the victim had been indulging in a relationship with the petitioner, that too for a period of 5 years. The fact that the victim has not yet obtained the divorce indicates, at least prima facie, that, both parties were consenting adults. Of course that is a matter for trial Court to consider at the appropriate stage.

10. Though arguments raised by the counsel for the victim, an application under Section 438 will not trying due to the Bar under Section 18 was impressive on first portion. After perusing the statement of the defacto complainant on the notice that no allegations under the SC/ST Act has been raised against the petitioner. The offence that may come with the purview of the ST/SC Act is not at all allege against the petitioner and hence merely because the Police has incorporated the said Section without sufficient supporting statement by the defacto complainant/victim in our F.I. Statement, the same cannot cause prejudice to the right of the petitioner to protect his liberty by repose to Section 438, I am prima facie satisfying that offence under Section 3 of the SC/ST Act is not attracted in the instant case as against the petitioner.

11. Taking into consideration the aforesaid, I am of the opinion that this application for pre-arrest bail can be allowed on conditions.

Accordingly, this application is allowed on the following conditions:

(i) Petitioner shall appear before the Investigating Officer on 27/6/2022 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/-(Ru