Consent in adult relationships is pivotal; allegations of immoral conduct do not equate to criminal offenses under the specified section of the IPC.

ORDER

1. This application is filed by the applicant under Section 438 of the Code of Criminal Procedure, 1973 seeking anticipatory bail in connection with the FIR, being Crime No.1374 of 2018, registered with Kayamkulam Police Station, for offence punishable under Section 376 of the Indian Penal Code . He is the sole accused in the said crime.

2. The victim, a lady aged 27 years, is married and the mother of two daughters. The applicant is a neighbour and a distant relative. According to the victim, some time in the month of April, 2017, she went to the house of the applicant from making some enquiry. She was taken to the first floor of the building and she was persuaded to have sexual intercourse. According to the victim, it was not consensual. She did not disclose the incident to her husband. According to her, thereafter on multiple occasions, she has had sexual intercourse with the applicant. On 23.4.2018, she was called over phone by the applicant and she was asked to come to his house. While she was having a telephonic conversation, her husband came from behind and snatched the telephone. He overheard the conversation and realised that his wife was having an improper relationship with the applicant. When he questioned, she disclosed about the previous incidents. She also alleges that she used to chat with the applicant in Whatsapp and other chat programmes using the mobile number of her husband.

3. The learned Senior Counsel appearing for the applicant vehemently contended that even if the prosecution case is admitted as such, the act of the applicant can be regarded as immoral, but the allegation would not constitute the offence of rape. According to the learned counsel, acknowledged consensual physical relationship between two willing adults would not constitute an offence under Section 376 of the IPC , more so, when the victim was a major on the date of occurrence.

4. The learned Public Prosecutor has opposed the prayer.

5. I have considered the submissions advanced by both sides and have gone through the case diary which was made available. I find considerable merit in the submissions of the learned Senior counsel. This Court will not be justified in going deeper into the merits of the allegations lest it prejudices either of the parties.

6. Having considered the entire facts and circumstances, I am of the considered view that the custodial interrogation of the applicant is not necessitous for an effective investigation.

In the result, this application is allowed. The applicant shall appear before the investigation officer within ten days from today and shall undergo interrogation. Thereafter, if he is proposed to be arrested, he shall be released on bail on his executing a bond for a sum of Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties each for the like sum. The above order shall be subject to the following conditions:

i)The applicant shall co-operate with the investigation and shall appear before the Investigating Officer on all Saturdays between 10 a.m. and 1 p.m., for two months or till final report is filed, whichever is earlier. The applicant shall co-operate and undergo the potency test if the same is found necessary.

ii)The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/ her from disclosing such facts to the court or to any police officer.

iii)The applicant shall not commit any similar offence while on bail.

In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation, if any, and pass appropriate orders in accordance with the law.