CONSENSUAL SEX IS NOT AN OFFENCE UNDER SECTION 376 OF IPC.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS TH THURSDAY, THE 15 DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945 BAIL APPL. NO. 11534 OF 2023 CRIME NO.1489/2023 OF West Circle Police Station, Thrissur, Thrissur PETITIONER/ACCUSED:

MEHUL MURALI, AGED 31 YEARS, S/O.MURALI, KANAKKAPARAMBIL HOUSE, ANNANAD P.O, THRISSUR, PIN - 680309.

BY ADVS.

SINDHU SANTHALINGAM A.D.SHAJAN(K/19/1997)

RESPONDENT/COMPLAINANT:

STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031.

SR.PUBLIC PROSECUTOR SRI.VIPIN NARAYAN THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON

15.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

ORDER

This is an application for anticipatory bail under Section

438 of the Code of Criminal Procedure , filed by the sole accused in Crime No.1489 of 2023 of West Police Station, Thrissur, registered under Section 376(2)(n) of IPC.

2. The prosecution allegation is that on 04.04.2023 and on 28.04.2023, the petitioner, on false promise of marriage, forcibly committed rape on the defacto complainant, at her flat at Pookunnam.

3. Heard learned counsel for the petitioner and learned Public Prosecutor.

4. Learned Public Prosecutor opposed the bail application.

5. Learned counsel for the petitioner would submit that the defacto complainant is a 32 year old lady, and she was in a relationship with the petitioner. The sexual offences alleged, if any, were only consensual. Hence, no offence under Section 376 of IPC will be attracted. When the marriage of the petitioner was fixed with another lady, she filed a false complaint against him.

6. The statement of the defacto complainant also reveals that she was in a relationship with the petitioner and the sexual acts alleged, occurred in her flat. So, the consensual sex pleaded by the petitioner cannot be ruled out.

7. Learned Public Prosecutor, on instructions, submitted that the investigation has progressed substantially.

In such circumstances, this Court is inclined to allow this application on the following terms:

(i) The petitioner is directed to surrender before the investigating officer on or before 21.02.2024 and subject himself for interrogation. The investigating officer shall collect all materials and evidence including potency certificate of the petitioner.

(ii) In the event of arrest, the petitioner shall be released on bail on executing bond for Rs.50,000/- (Rupees Fifty Thousand only) with two solvent sureties each for the like sum to the satisfaction of the arresting officer. (iii) Thereafter, the petitioner shall appear before the investigating officer as and when directed to do so.

(iv) The petitioner shall not cause any kind of harassment to the defacto complainant, either directly or indirectly.

(v) The petitioner shall not leave the limits of State of Kerala, till the investigation is over and the final report has been filed, without getting prior permission from the trial court.

(vi) The petitioner shall not commit any offence while on bail.

(vii) In case of violation of any of the above conditions, the Jurisdictional Magistrate is empowered to cancel his bail, in accordance with law.

Sd/-

SOPHY THOMAS, JUDGE DSV/-