IN THE HIGH COURT OF KERALA AT ERNAKULAM
THE HONOURABLE MRS. JUSTICE ANNIE JOHN
FRIDAY ,THE 02ND DAY OF NOVEMBER 2018 / 11TH KARTHIKA, 1940
Bail Appl..No. 2137 of 2018
CRIME NO. 427/2018 OF CHINGAVANAM POLICE STATION , KOTTAYAM
AGED 29 YEARS,
1 STATE OF KERALA
REP.BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA,ERNAKULAM-682 031(CRIME NO.427/2018 OF
CHINGAVANAM POLICE STATION,KOTTAYAM DISTRICT).
2 STATION HOUSE OFFICER
CHINGAVANAM POLICE STATION,KOTTAYAM DISTRICT-686 531,
(CRIME NO.427/2018 OF CHIGAVANAM POLICE
SRI. RAMESH CHAND, PUBLIC PROSECUTOR
THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 26.10.2018,
THE COURT ON 02.11.2018 PASSED THE FOLLOWING:
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The petitioner is the accused in Crime No. 427 of 2018 of
Chingavanam Police Station for offences punishable under Sections 323,
376, 406 and 420 IPC and Section 3(1)(w)(ii) of SC/ST (Prevention of
Atrocities) Act (‘SC/ST Act’ for short).
2. The allegation against the petitioner is that the petitioner came
into contact with the de facto complainant, who belongs to Hindu
Cheramar Community, through face-book and promised her that he
would marry her and on 04.03.2015, the petitioner went to the house of
the de facto complainant and committed sexual assault and thereafter
on many occasions within a period of 2 ½ years, she was taken to
Chennai, Pondicherry and Thiruvalla and had sexually assaulted her. It
is also alleged that the accused had taken 1 ½ sovereigns of gold
ornaments and the same was not returned to her. When the de facto
complainant enquired about the marriage, the accused called her caste
name and thereby committed the aforesaid offences.
3. According to the de facto complainant, she had been subjected
to sexual assault on several occasions and the alleged incident occurred
on 04.03.2015. There was a promise on the part of the petitioner in
marrying the de facto complainant and thereafter he has committed
breach of promise and alleged that the consented sexual intercourse was
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termed as rape.
4. The learned counsel for the petitioner has contended that the
de facto complainant does not have a case that the petitioner had
abused the de facto complainant by calling her caste name in the public
view, so as to tarnish the image in the public and therefore, no offence
as alleged under Section 3(1)(w)(ii) of SC/ST (Prevention of Atrocities)
Act would attract against the petitioner.
5. The alleged incident was occurred on 04.03.2015 and
thereafter it continued and she was assaulted in several occasions for
the last three years. She was taken to Chennai, Pondicherry and
Thiruvalla and sexually assaulted her. According to her, there was a
promise on the part of the petitioner to marry her; but he had withdrawn
from the promise. Accordingly, she has filed the complaint stating that
the petitioner has committed rape on her. Moreover, she belongs to
Scheduled Caste Community and he has insulted her by calling her caste
name and therefore, Section 3(1)(w)(ii) of SC/ST (Prevention of
Atrocities) Act will attract in this case.
6. The learned counsel for the petitioner has placed reliance on
the decision reported in Subhash Kashinath Maharajan (Dr.) v.
State of Maharashtra and another1 in which it is held that arrest of a
public servant can only be after approval of the appointing authority;
1 2018(2) KHC 207 (SC)
B.A. No.2137/2018 -4-
and of a non-public servant after approval by the Senior Superintendent
of Police of the District which may be granted in appropriate cases if
considered necessary for reasons recorded and such reasons must be
scrutinized by the Magistrate for permitting further detention.
7. In Jinu Thomas v. State of Kerala 2, it is held that the
submission of a woman to her lover to have physical relationship, or a
physical relationship entered into between two persons who have
attained the age of majority on an expectation to marry on future date,
by itself cannot constitute a mistake of facts under Section 19 of the
Evidence Act and constitute an offence punishable under Section 376
8. In Shanu v. State of Kerala3, it is held that the Judicial First
Class Magistrate’s Court has jurisdiction to grant bail to persons accused
of the offence punishable under any of the sub-cls.(i) to (xv) of S.3(1),
irrespective of the fact that the case is triable by the Special Court.
9. It is true that the court can consider an application under
Section 438 Cr.P.C in the case of alleged offences comes under the
SC/ST Act and that the verbal assault by calling the caste name in the
public view would only attract the provisions of the SC/ST Act. I have
gone through the charge sheet and found that there is no allegation that
2 2018 (3) KHC 263
3 2000 (3) KLT 452
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the petitioner has called the caste name of the de faco complainant
publicly. Over and above, according to the allegation of the de facto
complainant, she was subjected to sexual assault for more than three
years and they have stayed together in different places.
10. This kind of nature of the petitioner cannot be accepted by a
court of law. These are all the matters to be considered at the time of
taking evidence. The investigation is at the preliminary stage.
Considering the gravity of the allegations against the petitioner, I find
that it is unjust to grant anticipatory bail to the petitioner at this stage.
Accordingly, this Bail Application is dismissed.
However, the petitioner is directed to surrender before
jurisdictional Special Court for SC/ST Act on or before 30.11.2018 and
seek bail with notice to the Public Prosecutor. The learned Special Judge
shall consider and dispose of the same on the same day itself, in the
light of the observations made above.
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