Bail is the rule and refusal is the exception; the accused's detention was deemed unnecessary given the circumstances.

ORDER

The application is filed under Sec.483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (in short, ' BNS S ') by the sole accused in Crime No.763 of 2024 of the Guruvayoor Police Station, Thrissur which is registered against him, for allegedly committing the offence punishable under Section 69 of the Bharatiya Nyaya Sanhita, 2023 (in short, ' '). The petitioner was arrested and remanded to judicial custody on 27.08.2024.

2. The prosecution case, in brief, is that: the accused by promising to marry the survivor, had sexual intercourse with her from 12.03.2023 to 28.07.2024. However, the accused refused to marry the survivor. Thus, the accused committed the above offence.

3. Heard; Sri.P.Vijayabhanu, the learned Senior Counsel appearing for the petitioner and Smt.Seetha S, the learned Public Prosecutor

4. The learned Senior Counsel for the petitioner submitted the petitioner is totally innocent of the accusations levelled against him. The petitioner and the survivor were having a live-in-relationship in Dubai for nearly 1½ years. Their relationship was consensual in nature. It is only after the survivor returned to India, she has lodged the false complaint, stating that the petitioner had sexual intercourse with her by employing deceitful means. Since their relationship was consensual in nature, the offence under section 69 of the BNS will not be attracted in view of the decision of the Hon'ble Supreme Court in Mandar Deepak Pawar vs. The State of Maharashtra [2022 LiveLaw (SC) 649] . In any given case, the petitioner has been in judicial custody for the last more than one month, the investigation in the case is complete, the medical examinations have been conducted and the petitioner does not have any criminal antecedents.

Therefore, the petitioner may be enlarged on bail.

5. The learned Public Prosecutor opposed the application. She submitted that the petitioner has committed a serious crime by having sexual intercourse with the survivor by giving a false promise of marrying her. After having physical relationship with her, the petitioner has retracted from his promise. Therefore, the offence under Section 69 of the BNS is attracted. The investigation is in progress. If the petitioner is enlarged on bail, there is every likelihood of him threatening the witnesses and tampering with the evidence. Therefore, the application may be dismissed.

6. The prosecution case is that the petitioner had sexual intercourse with the survivor by employing deceitful means, i.e., by promising to marry the survivor. Subsequently, the petitioner retracted from his promise and has refused to marry the survivor.

7. In Vishnu vs. State of Kerala [2023 (4) KHC 1]

this Court after scrutinising all the earlier decisions on the point has made a clear distinction between rape and consensual sex. It is held that unless there is an allegation or proof that the accused has given a false promise to marry the victim, the offence of rape cannot be attributed. A similar view is taken by this Court in X. vs. State of Kerala [2022 KHC 296].

8. Recently, in Manish Sisodia v. Directorate of Enforcement [2024 INSC 595] the Honourable Supreme Court has observed that, over a period of time, the trial courts and the High Courts have forgotten a very well- settled principle of law that bail is not to be withheld as a punishment. From its experience, it appears that the trial courts and the High Courts attempt to play safe in matters of grant of bail. The principle that bail is the rule and refusal is an exception is, at times, followed in breach. On account of non-grant of bail even in straight forward open and shut cases, the Honourable Supreme Court is flooded with huge number of bail petitions thereby adding to the huge pendency. It is high time that the trial courts and the High Courts recognize the principle that “bail is the rule and jail is an exception”.

9. In Prabir Purkayastha v. State (NCT of Delhi)

[2024 SCC OnLine SC 934] , the Honourable Supreme Court h