The court ruled that the relationship was consensual and allowed pre-arrest bail, emphasizing the need to distinguish between consensual acts and those involving false promises.

ORDER

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. 227/2024 of the Neyyattinkara Police Station, Thiruvananthapuram, which is registered against him for allegedly committing the offences punishable under Sections 354 (C), 376(2)(n) and 506 of the Indian Penal Code and Sections 66E , 67 and 67A of the Information Technology Act .

3. The gist of the prosecution case is that: the accused, while working as a driver in a private firm, got acquainted with the survivor and made a false promise of marriage to her. Thereafter, the accused had sexual intercourse with the survivor. Subsequently, from December 2023 onwards, the accused threatened the survivor that he would publish her nude photographs and videos in the social media. On 07.01.2023 between 2:00 a.m and 5:00 a.m, the accused had sexual intercourse with the survivor. On 22.01.2024, when the survivor refused to have a sexual intercourse with the accused, he threatened the survivor that he would publish her nude pictures and videos in social media. Thus, the accused has committed the above offences.

4. Heard; Sri. Biju Balakrishnan, the learned counsel appearing for the petitioner and Smt. Seetha.S., the learned Public Prosecutor.

5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. There is no material to substantiate the petitioner's culpability in the crime. The Investigating Officer has deliberately implicated the petitioner as an accused. The petitioner and the survivor are both married. The survivor has a child in her relationship, and her marriage is strained. Therefore, by no stretch of imagination the survivor can alleged that the petitioner had sexual intercourse on a false promise of marriage. Actually, the survivor and her mother had borrowed money from the petitioner for their personal needs. It is when the petitioner asked for the return of the money, the survivor filed a false complaint. The petitioner’s custodial interrogation is not necessary. The petitioner is willing to cooperate with the investigation. Hence, the application may be allowed.

6. The learned Public Prosecutor opposed the application. The Investigating Officer has filed a bail objection report, inter alia, contending that there are incriminating materials to substantiate the petitioner's involvement in the crime. She submitted that the petitioner's custodial interrogation is necessary and medical examinations have to be conducted for the proper investigation of the crime. If the petitioner is granted an order of pre-arrest bail, it may hamper the investigation. Hence, the application may be dismissed.

7. The prosecution allegation is that, the petitioner made a false promise of marriage to the survivor and had sexual intercourse with her. Subsequently, he took her nude pictures and videographs and threatened her that he would publish them in the social media.

8. On a perusal of the materials on record, it is evident that both the petitioner and the survivor are married. The survivor is married for the last 18 years ago. She has a child in her marriage which is still subsisting. Their marriage is subsisting. Therefore, by no stretch of imagination could the petitioner marry the survivor, when her marriage is subsisting.

9. In Pramod Suryabhan Pawar v. State of Maharashtra and another [ 2019 (9) SCC 608 ], the Hon'ble Supreme Court observed thus:

“18. To summarise the legal position that emerges from the above cases, the "consent" of a woman with respect to S.375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the "consent" was vitiated by a "misconception of fact" arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of bei