CRL.A(MD)No.117 of 2023

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 22.02.2023

CORAM

THE HONOURABLE MR.JUSTICE G.ILANGOVAN

Crl.A(MD)No.117 of 2023

Pandiyan

... Appellant

Vs.

1.The Deputy Superintendent of Police,

Uthamapayaam Sub Disvisional,

Theni District.

2.State Rep. by Inspector of Police,

All Women Police Station,

Uthamaplayam,

Theni District.

3.Muthulakshmi

... Respondents

Prayer: This Criminal Appeal has been filed under Section 14A(2) of

SC/ST (POA) Act, 1989 as amended by Act 1 of 2016, to call for the

records relating to the order of dismissal of Bail Application dated

30.01.2023 made in Cr.M.P.No.146 of 2023 on the file of the learned

Sessions Judge(Full Additional Charge), Theni and set aside the same

and enlarge the appellant on bail in connection with the Crime No.38 of

2020 on the file of respondent police by allowing the Criminal Appeal.

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CRL.A(MD)No.117 of 2023

For Appellant

: Mr.T.Sivanathan

For Respondent : Mr.B.Nambiselvan

Additional Public Prosecutor

JUDGMENT

This appeal has been filed to call for the records relating to the

order of dismissal of Bail Application dated 30.01.2023 made in

Cr.M.P.No.146 of 2023 on the file of the learned Sessions Judge(Full

Additional Charge), Theni and set aside the same and enlarge the

appellant on bail in connection with the Crime No.38 of 2020 on the file

of respondent police.

2.The facts in brief:-

The defacto complainant lodged a complaint stating that she was

working in hospital for a year and during her study in S.M.Institue

(Thanvanthiri), she knew the accused and they became lovers. After that,

marriage proposal was made by the parents and she informed the same to

the accused and on 20.10.2021, they got married in Kodilingeswaran

Temple, Suruli. After that, she became pregant because of the

relationship; it was informed to the Appellant/accused; the

appellant/accused promised her to take her to Bangalore, after arranging

the house. The parents of the accused came to her hospital and tried to

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CRL.A(MD)No.117 of 2023

abort the child; after that, the accused refused to marry her citing her

castes issue. On the basis of the complaint given by the defacto

complainant/third respondent, the case was registered against the five

persons and the appellant was arrested on 19.12.2022 and he moved the

bail application before the Sub Court and the same was dismissed on

30.01.2023 against which, the appeal has been preffered.

3. The learned counsel for the appellant submitted that it is a

consensual relationship between the two adults and therefore, the offence

under Section 376 IPC is not made out and even as per allegation made

in the complaint, rape was not committed to the victim girl, since because

the victim belongs to Shedule Castes. According to him, the Special Act

would not be attracted.

4. Now, the allegation against the appellant is that the victim

belongs to Scheduled Caste Community; on that ground only, they are

refusing her to treat as wife of the first accused/appellant. whether the

refusal on the part of the first accused or others citing the communal

issue, is a matter for consideration and the same was considered by the

investigating officer or during the trial process.

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CRL.A(MD)No.117 of 2023

5. Now, coming to the judgment of the Honourable Supreme Court

in the Case of Naim Ahamed Vs. State(NCT of Delhi) in Crl.A.No.257

of 2023 reported in 2023 Live Law(SC) 66, wherein it has been observed

that the consensual relationship between the two adults will not attract

the offence under Section 376 IPC.

6. The learned Additional Public Prosecutor appearing for the

respondent police submitted that deception was played by the appellant

by giving f