Xxxx Vs State of Kerala — Bail and Remand | Kerala HC (2022)

Xxxx Vs State of Kerala — Bail and Remand | Kerala HC (2022)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH

MONDAY, THE 4^TH DAY OF APRIL 2022 / 14TH CHAITHRA, 1944

CRL.A NO. 982 OF 2021

AGAINST THE ORDER IN CRMC 2988/2021 OF SESSIONS

COURT,THIRUVANANTHAPURAM IN CR.NO.1910/21 OF PEROORKADA

POLICE STATION

APPELLANT/ACCUSED:

XXXX

BY ADVS.P.N.SUKUMARAN AKHIL S.VISHNU SOORAJ S, ARUN BOSE.D ABD K.VISWAN(K/416/1993)

RESPONDENTS/STATE/DEFACTO COMPLAINANT:

1 STATE OF KERALA

REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULMA - 682031

2 INSPECTOR OF POLICE, PEROORKADA POLICE STATION, THIRUVANANTHAPURAM - 695005.

3 XXXXX

SMT BINDU OV -PP

THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 04.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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J U D G M E N T

Dated this the 4th day of April, 2022

This is an appeal preferred against the order passed by the

Sessions Court, Thiruvananthapuram in Crl.M.C.No.2988/2021, dismissing an application filed under Section 438 of Cr.P.C.

The appellant is the accused in Crime No.1910/2021 of Peroorkada Police Station. He is alleged to have committed the offences punishable under Section 376, 376(2)(n) of IPC and Section 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (for short SC/ST Act). The 3^rd respondent is the victim.

The prosecution case in short is that the appellant had sexual intercourse with the victim on various occasions during the period from 2019 to 2021, after giving her a false promise of marriage.

The appellant moved an application under Section 438

of Cr.P.C as Crl.M.C.No.2988/2021 at the Sessions Court, Thiruvananthapuram. The learned Sessions Judge as per the order dated 20.12.2021 dismissed the said application after

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hearing both sides. The said order is under challenge in this appeal filed under Section 14 A of the SC/ST Act.

I have heard Sri.K. Viswan, the learned counsel for the appellant and Smt. Bindu O.V, the learned Public Prosecutor. The learned counsel for the appellant submitted that the appellant been falsely implicated in the present case. He further submitted that there are no materials to connect the appellant with the alleged crime and hence he is entitled to get bail. The learned Public Prosecutor opposed the appeal. She contended that the alleged incident occurred as a part of the intentional criminal act of the appellant and if the appellant is released on bail at this stage, it would affect the course of investigation.

It is true that there is bar under Section 18 A of the SC/ST Act to invoke Section 438 of Cr.P.C. However, the Apex Court in Prathvi Raj Chauhan v. Union of India & Others (2020) 4 SCC 727 has held that, if no prima facie offence is made out under the SC/ST Act, the bar under Section 438 of Cr.P.C could not be invoked. The only offence under the SC/ST Act alleged is under Section 3(2)(v). Section 3(2)(v) gets attracted when a person who is not a member of scheduled caste

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or scheduled tribe commits any offence under the Indian Penal Code punishable with imprisonment for a term of ten years or more against a person or property knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member. The Apex Court in Ravinder Singh vs Sukhbir Singh [2013 (1) KLT SN 76(Case No.60) SC ] held that merely because the victim/complainant belongs to a Scheduled Caste or Scheduled Tribe, the same cannot be the sole ground for prosecution, for the reason that the offence mentioned under the said Act 1989 should be committed against him on the basis of the fact that such a person belongs to a Scheduled Caste or Scheduled Tribe. It is further held that in the absence of such ingredients, no offence under Section 3(2) (v) is made out. The same legal position stands reiterated in Ramdas and Others v. State of Maharashtra [(2007) 2 SCC 170]. This Court in Stephen Joseph v. State of Kerala [2013 (2) KLT 58] has held that to attract the provisions of the SC/ST Act, the offence should have been committed with racial prejudice.

I went through the FIS meticulously. There is

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absolutely nothing in the FIS that either the offence was committed by the appellant with racial prejudice or the offence has been committed against the victim on the ground that she is a member of the Scheduled Caste. Even there is no reference to the caste of the victim or the appellant in the FIS. In these circumstances, I am of the view that the offence under Section 3(2)(v) has not been prima facie made out and, hence, the bar under Section 18 A of the SC/ST Act would not get attracted.

A perusal of the FIS would show that the petitioner and the victim were in love since 2018. In the FIS, the victim has admitted that she knew pretty well that the appellant was a married man having a child. According to her, the appellant made her believe that the divorce case was pending and that as and when he obtains divorce he would marry her. Her statement would further show that actually the divorce was obtained in December, 2020. The alleged sexual act was taken place prior to the said date. Thus, the alleged sexual act was done while a valid marriage of the appellant was subsisting. According to the prosecution, the consent to sex was obtained by the appellant after giving false promise of marriage. Since the victim very well

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knew that the appellant's marriage was subsisting at the time of indulging in sex, it cannot be said that the consent is vitiated on the ground of misconception of fact under Section 90 of the Indian Penal Code. The averments in the FIS would disclose that on three occasions there was sex between the appellant and victim which was consensual in nature. That apart, the complaint was lodged after two years of the alleged last incident. Considering all these aspects I am of the view that the custodial interrogation of the appellant is not necessary. Therefore, the appellant is entitled to pre-arrest bail on conditions.

In the result, the appeal is allowed on the following conditions:-

(i) The appellant shall be released on bail in the event of his arrest on executing a bond for Rs.1,00,000/- (Rupees One lakh only) with two solvent sureties for the like sum each to the satisfaction of the arresting officer/investigating officer, as the case may be.

(ii) The appellant shall fully co-operate with the investigation, including subjecting himself to the deemed police custody for the purpose of discovery, if any, as and when

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demanded.

(iii) The appellant shall appear before the investigating officer between 10.00 a.m and 11.00 a.m on every Saturday until further orders. The appellant shall also appear before the investigating officer as and when required by him.

(iv) The appellant shall not commit any offence of like nature while on bail.

(v) The appellant shall not make any attempt to contact any of the prosecution witnesses, directly or through any other person, or any other way try to tamper with the evidence or influence any witnesses or other persons related to the investigation.

(vi) The appellant shall not leave State of Kerala without the permission of the trial Court.

Sd/-

DR. KAUSER EDAPPAGATH

JUDGE

kp True copy

P.A. To Judge

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APPENDIX OF CRL.A 982/2021

PETITIONER ANNEXURES

Annexure A1 TRUE COPY OF THE FIR DATED 6/11/2021 IN CRIME NO. 1910 OF 2021 OF PEROORKADA POLICE STATION. Annexure A2 CERTIFIED COPY OF THE ORDER DATED 20/12/2021 PASSED IN CRL.M.C. NO. 2988/2021 OF THE SESSIONS COURT, THIRUVANANTHAPURAM.