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Rijo George vs State Of Kerala on 2 November, 2018

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

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

PETITIONER/S:

RIJO GEORGE
AGED 29 YEARS,
S/O.GEORGE,KARAKKATTU,VELARAMKUNNU,KUMALY,IDUKKI
DISTRICT.

BY ADVS.
SRI.S.RAJEEV
SRI.D.FEROZE
SRI.K.K.DHEERENDRAKRISHNAN
SRI.V.VINAY

RESPONDENT/S:
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
STATION,KOTTAYAM DISTRICT).

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:
B.A. No.2137/2018 -2-

ORDER

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
B.A. No.2137/2018 -3-

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

IPC.

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
B.A. No.2137/2018 -5-

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.

sd/-

ANNIE JOHN,
JUDGE.

Rv
B.A. No.2137/2018 -6-

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