Court holds that suppression of existing marital-like relationship and child amounts to deceit under Section 69 of Bharatiya Nyaya Sanhita, triggering bar on anticipatory bail under Section 18 of SC/ST (PoA) Act
In a significant ruling dated September 28, 2026, the Kerala High Court, headed by Justice A. Badharudeen, dismissed the anticipatory bail plea of the appellant, Udayan, accused under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 ("SC/ST (PoA) Act") and the Bharatiya Nyaya Sanhita, 2023 ("BNS"). The case involves grave allegations that Udayan, a non-SC/ST individual, concealed his existing live-in relationship and a child from that relationship before fixing marriage with a woman from the Scheduled Caste community, and subsequently compelled her to have sexual intercourse on the false premise of marriage.
The appellant challenged the Special Court's order dated June 17, 2026, which denied pre-arrest bail in Crime No. 138/2026 registered at Feroke Police Station, Kozhikode. The prosecution's case was that Udayan knowingly suppressed his ongoing marital-like relationship and a three-year-old child born of that union from the complainant and her family during the marriage fixation ceremony on July 6, 2025. The complainant's family had spent a substantial sum of Rs. 10,00,000/- on the event, attended by 1000 people. Subsequently, the accused allegedly coerced the complainant into sexual intercourse by deceit, leveraging the false assurance of marriage.
The appellant's defense argued that no offence under Section 318(4) or Section 69 of the BNS was made out, contending that since the appellant was willing to marry the complainant, no deceit or promise made without intent to fulfill was involved. Further, he contended that mere existence of a prior relationship and child does not prima facie constitute an offence warranting denial of anticipatory bail, and that the bar under Section 18 of the SC/ST (PoA) Act should not apply.
Rejecting these contentions, the High Court extensively analyzed Section 69 of the BNS, which criminalizes sexual intercourse by deceitful means or by making a promise to marry without intent to fulfill it, punishable with imprisonment up to ten years and fine. The Court emphasized that suppression of the prior relationship and child fell within the ambit of "deceitful means" as per the Explanation to Section 69, which includes "marrying by suppressing identity." The Court clarified that the offence under Section 69 applies even where the act does not amount to rape but involves sexual intercourse obtained by deceit.
Further, the Court observed that offences under the BNS correspond to scheduled offences under the Indian Penal Code and, therefore, Section 3(2)(va) of the SC/ST (PoA) Act is attracted prima facie in the present case. Consequently, the statutory bar under Section 18 of the SC/ST (PoA) Act against anticipatory bail comes into play.
The Court also noted the necessity of custodial interrogation for effective investigation, including recording the accused's statement, seizure and recovery of clothes worn during the incident, and conducting a potency test. Granting anticipatory bail at this stage would impede the investigation and prosecution, the Court held.
Accordingly, the Kerala High Court dismissed the appeal, confirming the Special Court's order. The appellant was directed to surrender before the Investigating Officer forthwith, failing which he may be arrested to facilitate smooth investigation. The judgment underscores the stringent approach of courts in cases involving offences under the SC/ST (PoA) Act, especially where allegations reveal deceitful conduct causing harm to members of Scheduled Castes and Tribes.
Bottom Line:
Anticipatory bail under the SC/ST (Prevention of Atrocities) Act can be refused where prima facie materials disclose offence under Section 69 of the Bharatiya Nyaya Sanhita, 2023 on the allegation that the accused obtained sexual intercourse by deceitful means by suppressing an existing relationship in the nature of marriage and the birth of a child therefrom; in such case, bar under Section 18 of the SC/ST (PoA) Act applies.
Statutory provision(s):
Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989 Sections 3(2)(va), 18; Bharatiya Nyaya Sanhita, 2023 Sections 69, 318(4), 3(5)
