Arun Dev v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 12[TH] DAY OF MARCH 2024 / 22ND PHALGUNA, 1945** ## **CRL.A NO. 28 OF 2024** **CRIME NO.806/2023 OF BALUSSERY POLICE STATION, KOZHIKODE AGAINST THE ORDER/JUDGMENT DATED 20.12.2023 IN CRMC NO.2085 OF** ## **2023 OF SESSIONS COURT, KOZHIKODE** ## **APPELLANT/PETITIONER/ACCUSED:** **ARUN DEV, AGED 33 YEARS, S/O VASUDEVAN, ARUN VIHAR NITTUR-PO, KUTTYADI, KOZHIKODE DISTRICT., PIN - 673508** **BY ADVS. P.VENUGOPAL SRILAKSHMI T.S. VARGHESE THOMAS** ## **RESPONDENTS/STATE AND DEFACTO COMPLAINANT:** **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2 STATION HOUSE OFFICER, BALUSSERY POLICE STATION, BALUSSERY-PO, KOZHIKODE DISTRICT., PIN - 673612 3 XXXXXXX (NAME AND ADDRESS OF THE DEFACTO-COMPLAINANT FURNISHED IN SEALED COVER) BY ADV SRI.G.SUDHEER, PUBLIC PROSECUTOR NIDHI BALACHANDRAN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12.03.2024,** **THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A No.28 of 2024 2 ## K.BABU, J. -------------------------------------- ## Criminal Appeal No.28 of 2024 --------------------------------------- Dated this the 12[th] day of March, 2024 ## JUDGMENT This is an appeal filed under Section 14-A of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. The challenge in this appeal is to the order dated 20.12.2023 in Crl.M.C No.2085/2023 passed by the Sessions Court, Kozhikode. 2. The appellant is the accused in Crime No.806/2023 of Balussery Police Station. He is alleged to have committed the offences punishable under Sections 376(2)(n) and 506 of the Indian Penal Code and Sections 3(1)(w)(i) and 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'the Act'). ## 3. The prosecution case is as follows: The victim is a member of the scheduled caste community. The appellant is not a member of SC/ST community. On various dates in 2023, the appellant after promising to marry the victim, indulged in sexual relationship with her, and later withdrew from Crl.A No.28 of 2024 3 the relationship and threatened her that he would upload her nude photos in the social media. 4. Heard the learned counsel for the appellant, the learned counsel for the victim and the learned Public Prosecutor. 5. The learned counsel for the appellant submitted that even if the prosecution allegations are taken at their face value, it is evident that there was no inducement, threat or any sort of fraud played on the victim, and the relationship was purely cordial and consensual. The learned counsel submitted that the allegation of promise to marry and the alleged misconception of fact are part of a fabricated story. It is submitted that the rider under Sections 18 and 18-A of the Act are not applicable as the prosecution prima facie failed to establish the offences under the provisions of the Act. 6. The learned counsel for the victim opposed the application. The learned counsel submitted that the materials are sufficient to attract the offences alleged. 7. The learned Public Prosecutor also opposed the bail plea of the appellant. 8. The appellant is a married man. He has a daughter aged 2 Crl.A No.28 of 2024 4 years. In 2021, the appellant met the victim when he visited Vengara Medical Centre in Malappuram district, where the victim was employed as a receptionist. This acquaintance gradually developed. The victim used to visit the appellant and got introduced to his wife and other members of the family. 9. The learned counsel for the appellant submitted that there are materials to show that the victim stayed at the house of the appellant along with the other members of the family. The appellant relied on a series of whatsapp chats and photographs which would show that the victim and the appellant jointly met the other members of the family in connection with various family functions. The appellant also relied on the statement of account maintained by him with the HDFC bank to show that money was being regularly transferred to the account of the victim. 10. It is revealed from the materials, including the FIS, that the parties were very close friends. There is nothing to show that the victim was not aware of the fact that the appellant is a married man having a child. It is the case of the appellant that the victim wanted to live with him in a permanent relationship by divorcing his wife. Prima facie, it is revealed that the alleged relationship was Crl.A No.28 of 2024 5 consensual in nature and there is nothing to show that there was a false promise to marry and any element of deception in the relationship between the parties. 11. The learned counsel for the appellant brought to my notice the inconsistency in the statement given by the victim in the FIS and the statement given before the Magistrate under Section 164 Cr.P.C in support of his contentions. Prima facie, the prosecution failed to establish the offence punishable under Section 376(2)(n) of the IPC and the offences under the SC/ST (Prevention of Atrocities) Act. 12. In Prathvi Raj Chauhan v. Union of India [(2020) 4 SCC 727] , the Apex Court held that if the complaint does not make out a prima facie case for the applicability of the penal provisions of the Act, the bar created under Section 18 shall not apply. 13. While considering the scope of jurisdiction under Section 438 Cr.P.C., the Constitution Bench of the Apex Court in Gurbaksh Singh Sibbia & Ors. v. State of Punjab [(1980) 2 SCC 565] held thus: “31. In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made. On the other hand, if it appears likely, considering the antecedents of the Crl.A No.28 of 2024 6 applicant, that taking advantage of the order of anticipatory bail he will flee from justice, such an order would not be made. But the converse of these propositions is not necessarily true. That is to say, it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides; and, equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond. There are several other considerations, too numerous to enumerate, the combined effect of which must weigh with the court while granting or rejecting anticipatory bail. The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant's presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and “the larger interests of the public or the State” are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail. The relevance of these considerations was pointed out in State v. Captain Jagjit Singh [AIR 1962 SC 253 : (1962) 3 SCR 622 : (1962) 1 Cri LJ 216] , which, though, was a case under the old Section 498 which corresponds to the present Section 439 of the Code. It is of paramount consideration to remember that the freedom of the individual is as necessary for the survival of the society as it is for the egoistic purposes of the individual. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints on his freedom, by the acceptance of conditions which the court may think fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail.” ## 14. In Siddharam Satlingappa Mhetre v. State of Maharashtra ## [(2011) 1 SCC 694] the Apex Court held thus:- “113. Arrest should be the last option and it should be restricted to those exceptional cases where arresting the B.A.Nos.5010 of 2021 & Connected cases 40 accused is imperative in the facts and circumstances of that case. The court must carefully examine the entire available record and particularly the allegations which Crl.A No.28 of 2024 7 have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record.” (In Sushila Aggarwal v. State (NCT of Delhi) [(2020) 5 SCC 1]) the declaration of law in Siddharam Satlingappa Mhetre that no condition can be imposed while granting order of anticipatory bail alone was overruled) 15. In Sushila Aggarwal , the Constitution Bench of the Apex Court, following the decision in Gurbaksh Singh Sibbia , held that while considering an application (for grant of anticipatory bail) the Court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence (including intimidating witnesses), likelihood of fleeing justice (such as leaving the country), etc. Having considered the entire circumstances on the touchstone of the precedents mentioned above, I am of the view that the appellant is entitled to anticipatory bail. In the result, - (i) The Criminal Appeal is allowed. - (ii) The order dated 20.12.2023 dismissing Crl.MC No.2085 of 2023 stands set aside. - (iii) The appellant shall appear before the Crl.A No.28 of 2024 8 Investigating Officer on 01.04.2024 between - 10.00 AM and 11.00 AM for interrogation. - (iv) The Investigating Officer is directed to release - the appellant on bail, in the event of his arrest, on his executing bond for Rs.1,00,000/- - (Rupees One Lakh only) with two solvent - sureties each for the like sum. - (v) The appellant shall appear before the Investigating Officer on all Saturdays between - 10.00 AM and 11.00 AM for a period of three - months or till the final report is filed. - (vi) The appellant shall not influence the witnesses in this case or tamper with the evidence. Sd/- K.BABU, JUDGE KAS Crl.A No.28 of 2024 9 ## **APPENDIX OF CRL.A 28/2024** PETITIONER ANNEXURES Annexure 1 TRUE COPY OF THE RELEVANT PAGES OF THE ACCOUNT STATEMENT OF MY BANK ACCOUNT NO.50100410520611 Annexure 2 TRUE COPY OF THE SCREEN SHOT OF THE WHATSAPP CHAT MADE BY THE DEFACTOCOMPLAINANT WITH WIFE OF THE APPELLANT. Annexure 3 TRUE COPY OF THE FEW PHOTOGRAPHS