Allowed

Biju N.v., v. State of Kerala

Kerala HC29 May 2019CRL.A/411/2019

Case brief

AI extract

What is this about?

The Court allowed the criminal appeal against the dismissal of an anticipatory bail application. It set aside the impugned order, holding that custodial interrogation was not warranted as the appellant made out a probable case of consent. Bail was granted subject to conditions.

What did the court decide?

The impugned order dismissing the anticipatory bail application was set aside. The appellant was directed to be released on bail on executing a bond and furnishing sureties.

Biju N.v., Vs State of Kerala — Caste Atrocities | Kerala HC (2019)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

¶4

WEDNESDAY, THE 29TH DAY OF MAY 2019 / 8TH JYAISHTA, 1941

¶5

CRL.A.No. 411 of 2019

¶6

AGAINST THE ORDER/JUDGMENT IN CRMC 72/2019 of SPECIAL COURT (ATROCITIES AGAINST SC/ST), MANANTHAVADI DATED 2302-2019

¶7

CRIME NO. 36/2019 OF Kalpetta Police Station , Wayanad

¶8

APPELLANT/S:

¶9

BIJU N.V., AGED 43 YEARS S/O. ASHOKAN, NADAGAL MEETHAL HOUSE, NELLIKODE P.O, THIRUMANGALATH POYIL, KOTTOOLI, KOZHIKODE.

¶10

BY ADV. SMT.K.DEEPA (PAYYANUR)

¶11

RESPONDENT/S:

¶12

1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031.

¶13

2 THE STATION HOUSE OFFICER, KALPETTA POLICE STATION, KOZHIKODE 673 114.

¶14

BY ADV. SMT.AMBIKA DEVI S, SPL.GP ATROCITIES AGAINST WOMEN & AMP; CHILDREN & WELFARE OF W & C

¶15

OTHER PRESENT:

¶16

SRI.K.B.UDAYA KUMAR, PUBLIC PROSECUTOR

¶17

THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29.05.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

¶18

::2::

¶19

CRL.A.No. 411 of 2019

¶20

ALEXANDER THOMAS, J .

¶21

Crl.A.No.411 Of 2019

¶22

Dated this the 29^th day of May, 2019.

¶23

J U D G M E N T

¶24

The appellant is aggrieved by the impugned order dated 23.2.2019 rendered by the Special Sessions Court for SC/ST (POA) Cases, Mananthavadi, whereby his application for grant of anticipatory bail in respect of Crime No.36/2019 of Kalpetta Police Station has been dismissed.

¶25

Heard Smt.K.Deepa (Payyannur), learned counsel for the petitioner and Sri.K.B.udayakumar, learned Prosecutor appearing for the respondents.

¶26

The prosecution case in brief is that the petitioneraccused and the lady defacto complainant had a love affair and that he promised to marry her and they had sexual relationship and all throughout the petitioner-accused was well aware that the defacto complainant belongs to Scheduled Tribe community. The incidents had happened for the period from 26.1.2017 to 5.11.2018 and that later the petitioner backdropped from his promise and abandoned her and in the course of relationship, the petitioner had also borrowed Rs.50,000/- from the lady defacto complainant and had

¶27

::3::

¶28

CRL.A.No. 411 of 2019

¶29

also taken her gold ornaments weighing 2 sovereigns and that the money and the gold ornaments were not returned by him. Per contra, the case of the petitioner that he is a small time contractor and the lady was engaged for doing some menial work on temporary basis and that she is making false allegations, etc. It is urged by the learned counsel for the petitioner that even going by the case set up in the FI statement, it can be seen that the alleged incidents of sexual relationship would have taken place with the consent of the parties and that the vital ingredients of rape as envisaged in Sec.376 is not made out. The learned counsel for the petitioner would point out that it is by now well established by the Apex Court and various High Courts including this Court that where the sexual relationship is with the consent of the defacto complainant, the allegation of false promise of marriage will not constitute misconception of facts under Sec.90 of the I.P.C., and there is a substantial distinction to be rape as well as consensual relationship.

¶30

The learned prosecutor has opposed the grant of bail and submitted that there is bar under Sec.18A of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, for consideration of the anticipatory bail application and that the Special Sessions Court cannot be found fault with for rejecting the Bail Application on that

¶31

::4::

¶32

CRL.A.No. 411 of 2019

¶33

ground. Further it has been held by the Apex Court and this Court in very many cases that where the accused can probabilise a strong case regarding the falsity or improbability of the allegations, then the bar will not apply and notwithstanding the said provisions, the competent courts can consider the grant of anticipatory bail in appropriate cases.

¶34

After having heard both sides and after evaluating and testing the facts and circumstances in the light of the judicial precedents in the matter of distinction between rape and consensual relationship, this Court is of the view that the appellant has made out a probable case that the sexual relationship would have been primarily on the basis of consent of the parties. Accordingly, this Court is of the view that custodial interrogation of the appellant may not be really warranted in this case. In that view of the matter, it is ordered that the impugned order dated 23.2.2019 rendered by the Special Sessions Court for SC/ST (POA) Cases, Mananthavadi, in Crl.M.P.No.72/2019 dismissing the anticipatory bail application will stand set aside.

¶35

Accordingly, it is ordered that in the event of the appellant-accused being arrested in relation to Crime No.36/2019 of Kalpetta Police Station, then he shall be released on bail on his

¶36

::5::

¶37

CRL.A.No. 411 of 2019

¶38

executing a bond for Rs.50,000/- (Rupees Fifty Thousand only) and on his furnishing 2 solvent sureties for the like sum each to the satisfaction of the competent court concerned. However, the above order shall be subject to the following conditions:

¶39

(i) The appellant shall not involve in any criminal offences of similar nature.

¶40

(ii) The appellant shall fully co-operate with the investigation.

¶41

(iii) The appellant shall report before the Investigating Officer as and when required in that connection.

¶42

(iv) The appellant shall not influence witness or shall not tamper or attempt to tamper evidence in any manner, whatsoever.

¶43

(v) The appellant shall not go anywhere near the residence or work place of the lady defacto complainant until the conclusion of the trial.

¶44

If there is any violation of the abovesaid conditions by the appellant, then the jurisdictional court concerned stand hereby empowered, to consider the plea for cancellation of bail at the appropriate time.

¶45

With these observations and directions, the above Criminal Appeal stands allowed.

¶46

Sd/ALEXANDER THOMAS, Judge.

¶47

bkn/-

¶48

::6::

¶49

CRL.A.No. 411 of 2019

¶50

APPENDIX

¶51

PETITIONER'S/S EXHIBITS:

¶52

ANNEXURE 1 CERTIFIED COPY OF THE ORDER DATED 23.2.2019 IN CRL. M.C. NO. 72/2019 OF THE COURT OF SPECIAL COURT FOR SC/ST (POA), ACT CASES, MANANTHAVADY.

Biju N.v., v. State of Kerala

Case brief

What is this about?

What did the court decide?

Biju N.v., v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sachu.P.Chandran Vs State of Kerala

Shiju.a.P. Vs State of Kerala

Abid.M.P,S/O. Abdu Rahman, Mullakettil Puthiya Purayil House, Ettikulam, Vs State of Kerala

Edathingal Asees, Vs State of Kerala

Mary Wilson Vs State of Kerala

Dr.Aneesh, Vs State of Kerala