Consent in sexual offences must involve active deliberation; mere relationships do not equate to consent, impacting the classification of acts as rape.

O R D E R

The application is filed under Section 438 of the Code of Criminal Procedure, 1973 (in short, ‘Code’), for an order of pre-arrest bail.

2. The petitioner is the sole accused in Crime No.377/2024 of the Cherpulassery Police Station, Palakkad, which is registered against him for allegedly committing the offences punishable under Sections 315 , 354, 376 & 506 of the Indian Penal Code, 1860 .

3. The prosecution case, in brief, is that: between 7.8.2022 to 22.2.2024 the accused repeatedly had sexual intercourse with the survivor, who was an Accountant in his establishment. He threatened the survivor that he had her nude pictures and videos and that he would publish it in social media. The survivor had conceived in the relationship, but the accused had compelled her to consume medicine and got the foetus terminated. Thus, the accused has committed the above offences.

4. Heard; Sri. K.K Dheerendrakrishnan, the learned counsel appearing for the petitioner, Smt. Seetha.S., the learned Senior Public Prosecutor and Sri.K.Ravi, the learned counsel appearing for the additional second respondent/survivor.

5. When the bail application came up for consideration on 5.7.2024, this Court, prima facie, considering the fact that there was a longstanding relationship between the petitioner and the survivor from 5.7.2022, that they had travelled together to different parts of the Country and the last incident of alleged rape took place on 22.2.2024, but Annexure-I FIR was registered only on 29.5.2024, and following the principles laid down by the Hon’ble Supreme Court in Bhadres Bipinbhai Sheth vs State of Gujarat and another [2015 KHC 4579] directed the petitioner to surrender before the Investigating Officer and subject himself to interrogation as well as to undergo his potency test.

6. The learned Public Prosecutor, on instructions, submitted that, pursuant to the interim order of bail passed by this Court, the petitioner had surrendered before the Investigating Officer on 8th, 10th, 11^th and 16^th of July, 2024 and he was thoroughly interrogated. His potency test was also conducted during the said four days. The Investigating Officer does not require the petitioner’s further custodial interrogation. Therefore, the application can be disposed of by making the interim order absolute, after incorporating additional conditions.

7. The learned counsel for the petitioner argued that in view of the interim order referred to above and the petitioner fully co-operating with the investigation, including surrendering himself for interrogation and conducting his potency test, the application is only to be allowed by confirming the interim order of bail. Moreover, a reading of the complaint appended to Annexure-I FIR undoubtedly substantiates that the relationship between the petitioner and survivor was consensual in nature. There is no plausible explanation for the delay in registering the FIR nearly after two years after the first incident of alleged rape. The petitioner is a law-abiding citizen without any criminal antecedents. The survivor’s sole intention is to extort money from the petitioner. Therefore, the application may be allowed.

8. The learned counsel appearing for the survivor vehemently opposed the application. He submitted that the petitioner was in a dominating position since he was the employer of the survivor. It was only due to the petitioner’s influence and position that she could not register the FIR immediately after the incident. However, subsequently, after the survivor left the service of the petitioner, she garnered courage and had submitted Annexure R2(a) to R2(d) complaints before the various authorities including the Chief Minister, to take legal action against the petitioner. Later, she filed Annexure-I complaint before the Jurisdictional Court, which was forwarded to the jurisdictional Magistrate under Sec.156(3) of the Cr.P.C and Annexure-I FIR was registered. Merely because there was some silence on the part of the surv