The court ruled that consent is essential in determining the legality of sexual relationships, emphasizing that a promise of marriage does not automatically imply consent.

JUDGMENT

This is an appeal filed by the accused in crime no.1027/2024, Peermade Police Station aggrieved by the order dated 02/12/2024 in Crl.M.C.No.968/2024 on the file of the Court of Special Judge for the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, Thodupuzha, by which his application for pre-arrest bail has been dismissed.

2. The prosecution case is that on 02/07/2022 the petitioner/accused on promise of marriage had sexual intercourse with the informant/victim with the knowledge that she belongs to the Scheduled Caste Community and thereafter threatened her not to disclose the matter to others and thereby he is alleged to have committed the offences punishable under Sections 376 , 506 IPC and Sections 3(1)(w)(i) and 3(2)(va) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (the Act). The application was dismissed by the trial court finding that the bar under Section 18 of the Act is attracted.

3. The learned counsel for the appellant draws my attention to the FIS of the victim that has been produced as additional document along with Crl.M.A.No.1/2024. He takes me through the imputations made in FIS based on which he submits that it is clear that the relationship was consensual and that it was only because the parties broke up, the complaint has been given after a period of two years from the date of the alleged abuse. Specific reference is made to paragraph nos.31 and 32 of the judgment in Mahesh Damu Khare v. State of Maharashtra , 2024 (7) KHC 460 : 2024 INSC 897 in which it has been held thus:

“31. In our view if criminality is to be attached to such prolonged physical relationship at a very belated stage, it can lead to serious consequences. It will open the scope for imputing criminality to such long term relationships after turning sour, as such an allegation can be made even at a belated stage to drag a person in the juggernaut of stringent criminal process. There is always a danger of attributing criminal intent to an otherwise disturbed civil relationship of which the Court must also be mindful.

32. It is evident from the large number of cases decided by this Court dealing with similar matters as discussed above that there is a worrying trend that consensual relationships going on for prolonged period, upon turning sour, have been sought to be criminalised by invoking criminal jurisprudence.”

4. Hence the argument is that the trial court went wrong in dismissing the application.

5. The application is strongly opposed by the learned public prosecutor, who quite vehemently and persuasively submitted that the statements in the FIS would make it apparent that it was a case of rape. The informant/victim consented to the physical relation only because the accused promised to marry her. A reading of the FIS shows that the offence of rape is prima facie made out and therefore, the bar under Section 18 of the Act is attracted and hence the trial court was right in dismissing the application for anticipatory bail.

6. Heard both sides.

7. I have been taken through the entire allegations in the FIS, that is, Annexure-I produced along with Crl.M.A.No.1/2024. The FIS is seen given on 21/11/2024 at which time the informant/victim was 30 years old. The incident is alleged to have happened in 2022 which means that she was around 28 years of age at the relevant time. In the FIS the informant/victim states that she and the accused were childhood friends. They were contemporaries in school as well as in college. After college they lost touch with each other. Later, they met again through social media and revived their friendship. They fell in love. On 02/07/2022 she was to appear for an entrance test at Kumily. The accused offered