The court established that mutual consent in a sexual relationship does not preclude the applicability of criminal charges when deceit is involved.

ORDER

Apprehending arrest the sole accused in Crime No.60 of 2021 of Mankara Police Station registered for the offences punishable under Sections 376 (2)(n), 313 and 417 of IPC has filed this application under Section 438 of the Code of Criminal Procedure .

2. The prosecution allegation is as follows:

The defacto complainant is a married lady. She was residing along with her mother in a rented building. During that period this petitioner in the month of December, 2017 got acquaintance with this petitioner through facebook. Thereafter on 6.12.2017 he came to her residence and had sex with her. Later, he continued with the relationship on the false promise that he would marry her. In the month of December 2017 he had even taken her to a Gulf country for a few days and resided in a hotel as well in a flat at Abudhabi and had sexual relationship and as a result she became pregnant. When the fact was informed to him he compelled her to abort her pregnancy and on his compulsion she had aborted her pregnancy and thereafter he deviated from his promise to marry her. Further prosecution case is that this petitioner has cheated the defacto complainant with a false promise to marry her and thus committed sexual abuse and harrasment on her with the intention not to marry her and thereby committed the aforesaid offences.

3. Heard the learned counsel for the petitioner as well the learned Public Prosecutor.

4. According to the learned counsel for the petitioner there was no element of cheating as alleged by the prosecution. In fact with her consent he had sexual relationship with her and the consensual sexual relationship will not amount to rape as alleged by the prosecution. In fact he had the intention to marry her but as her marriage with her husband was not dissolved legally he could not marry her. So when his marriage with another girl was fixed she had falsely implicated him in the case and thus the crime was registered against him. But he apprehends arrest and hence, the application.

5. The learned Public Prosecutor has submitted that the investigation of the case is only in progress. The investigation so far revealed that he had taken her nude photographs and he is in possession of the same and so the custodial interrogation of this petitioner is absolutely necessary to unearth the details. So granting of pre-arrest bail is vehemently opposed by the learned Public Prosecutor.

6. On hearing both sides, it could be seen that a relationship has developed by this petitioner with the defacto complainant knowing that she is a married woman. He had the relationship with her from December 2017 till January 2021. He has taken her even to Gulf country and there they resided together for few days and it appears that it was under the false promise that he would marry her. She had already married to another person, is revealed from the records. Still he continued with the relationship and she became pregnant and thereafter her pregnancy was also aborted in a hospital at Ottapalam at his instigation. The intention of the petitioner is prima facie revealed from her 164 statement as well the FI statement given by her against this petitioner. Prima facie it is seen that he had the intention to cheat her and there was no intention to marry her. Knowing fully well that she is married and he could not marry her without a divorce, continued the sexual relationship and exploited her sexually. Her nude photographs are also with him. So there is something to be investigated and found out.

Such being the case, I think that the argument advanced by the learned Public Prosecutor that custodial interrogation of this petitioner is inevitable to proceed with the investigation of the case is well-founded. As he is well connected he may flee from justice, if granted bail. Hence, I think that the petitioner is not entitled to get pr-arrest bail. So in short, considering the nature of accusation levelled against him and the other facts and circumstances involved, I find