The Kerala High Court recently granted anticipatory bail to a 27-year-old man accused of rape, after observing that the complainant's statement revealed a prima facie consensual relationship between the two [XXXXX v State of Kerala & anr].
Justice Bechu Kurian Thomas observed that arrest and remand should not become tools of punishment in cases where a romantic relationship later turns sour and rape is alleged.
"Courts must be cautious when two young people enter into a willing physical relationship and later rape is attributed to their union. Refusing bail blindly in such cases, without considering the circumstances, can lead to injustice and destroy the young personality. Arrest and remand being a curtailment of the cherished liberty of a person, it must be resorted to only if the circumstances warrant such a course to be adopted," the judge said.
The Court held that invoking criminal law under the charge of rape in such circumstances was unwarranted.
"Merely because a consensual relationship turned sour at a later point of time, it cannot be a reason to allege rape. Further, there cannot be a case of deceitfully obtaining consent under a false promise of marriage as the de facto complainant is still in a subsisting marriage. Since prima facie I am satisfied that the statement given by the de facto complainant does not indicate an instance of rape stricto senso, petitioner ought to be protected with an order of pre-arrest bail," the Court said.
The petitioner was booked under Section 64(1) (punishment for rape) of the Bharatiya Nyaya Sanhita (BNS) for allegedly raping a married woman, who is also a third-year medical student, in a hotel room near Thamarassery on November 3 and 4, 2024.
According to the First Information Report (FIR), the complaint was filed after five months of the alleged incident.
The anticipatory bail application before the High Court was filed in relation to the crime registered against the petitioner at the Thamarassery Police Station, for allegedly having non-consensual sexual intercourse with the complainant.
The petitioner's counsel argued that the allegations made by the complainant were fabricated and the FIR was a result of a consensual relationship that deteriorated over time.
After examining the woman's First Information Statement (FIS) and the FIR, the Court noted that the woman's own statement confirmed that she travelled on her own, stayed with the petitioner willingly and maintained contact with him through Instagram and Snapchat.
The Court also pointed out that there could not be a case of cheating her into a relationship by falsely promising marriage since she was already married at the time and her marriage was still legally in place.
"When a married lady, on her own volition travelled all the way from Thiruvananthapuram to Kozhikode and willingly stayed with the petitioner in different lodges, that too for two nights, it cannot be assumed that the physical relationship between them was without her consent," the Court said while concluding that there was no prima facie indication of rape due to the relationship being consensual.
The Court further stressed on the need for judicial caution when dealing with such false allegations, especially when young persons are involved in romantic relationships that end on a bitter note.
Considering the prosecution's failure to establish the need for custodial interrogation, the Court allowed the bail application with strict conditions, including appearance before the Investigating Officer for limited custody interrogation and prohibition from contacting the complainant or tampering with evidence.
Advocates P Abdul Nishad, Najma Thabsheera T, KC Mohamed Rashid and Ajisha MS appeared for the petitioner.
Public prosecutor Sreeja V represented the State.
[Read Order]