Atul Raj v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 19TH DAY OF SEPTEMBER 2019 / 28TH BHADRA, 1941** ## **CRL.A.NO.1089 OF 2019** **CRMP 2404/2019 DATED 05-09-2019 OF DISTRICT COURT & SESSIONS COURT,KOTTAYAM** **CRIME NO.1139/2019 OF ETTUMANOOR POLICE STATION, KOTTAYAM** ## **APPELLANT/ACCUSED:** **ATUL RAJ, AGED 29 YEARS, S/O ASOK RAJ, ANUGRAHA HOUSE, NEENDOOR VILLAGE, ETTUMANNOR, KOTTAYAM.** **BY ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.D.FEROZE SRI.K.ANAND (A-1921)** ## **RESPONDENT/STATE:** **STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031 , (CRIME NO 1139/2019 OF ETTUMANNOOR POLICE STATION, KOTTAYAM DISTRICT)** **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 19.09.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## ALEXANDER THOMAS, J. ----------------------------------Crl. Appeal No. 1089 of 2019 ----------------------------------Dated this the 19[th] day of September, 2019 ## J U D G M E N T The appellant herein has been arrayed as the sole accused in the instant Crime No.1139/2019 of Ettumanoor Police Station, which has been registered for offences punishable under Sec.376 of the IPC and Secs.3(1)(w)(i) and 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, as amended, on the basis of FIS given by lady defacto complainant on 4.7.2019 at about 6.30 pm in respect of the alleged incidents which have happened for the period from 1.5.2016 to 31.1.2019. 2. The appellant's plea for grant of anticipatory bail has been rejected by the Sessions Court, Kottayam, as per the impugned order dated 5.9.2019 on Crl.M.P.No.2404/2019. Being aggrieved by the refusal to grant anticipatory bail, the appellant has filed the instant Criminal Appeal under Sec.14A(2) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, as amended. Crl. Appeal No. 1089 of 2019 ..3.. 3. The prosecution case in short is that, the lady defacto complainant aged 29 years belongs to Scheduled Caste community, and the appellant aged 29 years does not belong to SC/ST Community, and that both are unmarried, and that they started an intense love affair and the appellant had assured the lady defacto complainant that he would marry her, and that both of them travelled to various places and had sexual relationship on various occasions for the period from May, 2016 to January, 2019. Later the appellant lost interest to marry her, and the lady felt cheated and she given the instant FIS alleging that the appellant has committed the abovesaid offences. 4. The prime argument raised by Sri.K.K.Dheerendra Krishnan, learned counsel appearing for the appellant accused is that, though there is an averment in the FIS that the lady defacto complainant belongs to Scheduled Caste community, there is no averment anywhere in the FIS that the appellant was aware that the lady defacto complainant belonged to Scheduled Caste community, and hence it is pointed out that the minimal requirement for invocation of the provisions of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, are Crl. Appeal No. 1089 of 2019 ..4.. conspicuously absent in this case, and therefore the said Act does not apply, and if that be so, the bars contained in Sec.18 and Sec.18A(2) of the said Act will also not apply, and therefore the basic premise on the basis of which the Sessions Court has rejected the anticipatory bail plea on the ground that the plea for anticipatory bail is barred by Sec.18 and Sec.18A(2) of the Act, is faulty and legally wrong. 5. Further it is also argued that, a mere perusal of the FIS would indicate that even it is assumed for argument sake that the incidents narrated therein are true, then the sexual relationship would have happened only on the basis of consent between the parties and not otherwise, and therefore the vital ingredients of the offence of rape as per Sec.376 of the IPC are conspicuously absent in this case. Counsel for the appellant has pointed out various decisions of the Apex Court and various High Courts including this Court regarding the substantial distinction between rape and consensual sexual relationship, wherein it has been held that where the lady and man have sexual relationship for quite some time, then it cannot be said that, there is an element of rape involved as the relationship is mainly on the basis of consent Crl. Appeal No. 1089 of 2019 ..5.. between the parties, and that mere promise to marry and breach of such promise cannot be the basis to contend that the consent was obtained on the basis of misconception of fact as envisaged under Sec.90 of the IPC. 6. After perusing the FIS it is seen that no where therein has the defacto complainant alleged that the appellant accused was aware that the lady belonged to Scheduled Caste Community. For this reason alone, it is only to be held that the provisions of the said Act will not come into play, and this view is taken by this Court only for the limited purpose of consideration of this anticipatory bail plea. 7. After hearing both sides and after careful evaluation of the facts and circumstances of the case, and after testing the facts of the case in the light of the abovesaid judicial precedents which have laid down the substantial distinction between rape and consensual sexual relationship between the parties, this Court is constrained to take the view that the appellant accused has made out a strong probable case that his custodial interrogation may not be necessary to effectuate smooth and fair conduct of investigation in this crime. Crl. Appeal No. 1089 of 2019 ..6.. 8. The upshot of the discussion is that, the bar engrafted in Sec.18 and Sec.18A of the the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, as amended, will not be attracted in the facts and circumstances of the case, and hence this Court has jurisdiction to consider the plea for anticipatory bail on merits. Further in the light of the abovesaid aspects, this Court has already held that the custodial interrogation of the appellant may not be necessary for effectuating smooth and fair conduct of investigation in this crime. Accordingly it is ordered that, in the event of the appellant being arrested by police in connection with the abovesaid crime, he shall be released on bail on executing bond for Rs.40,000/- and on furnishing two solvent sureties for the like sum, each to the satisfaction of the Investigating Officer concerned. Further it is also ordered that it will be subject to following conditions:- - _i. The appellant shall not involve in any criminal offences of similar nature._ - _ii. The appellant shall fully co-operate with the investigation._ - _iii. The appellant shall report before the investigating officer as and when required in that connection._ - _iv. The appellant shall not influence witness or shall not tamper or attempt to tamper evidence in any manner, whatsoever._ Crl. Appeal No. 1089 of 2019 ..7.. - _v. The appellant shall not go anywhere near to the residence of the lady defacto complainant._ - _vi. The appellant shall not enter into or reside within the territorial limits of the Police Station where the lady defacto complainant is residing until the conclusion of trial, except for the limited purpose of reporting before the Investigating Officer concerned in this crime, or for attending to the Court in relation to this case or any other cases or for contacting his lawyers/advocates concerned._ - _vii. However if on account of any emergent personal need the appellant wants to visit the said area, he may do so but only with the prior permission of the Investigating Officer concerned._ 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. With these observations and directions, the above Criminal Appeal will stand disposed of. Sd/- ## ALEXANDER THOMAS, JUDGE MMG Crl. Appeal No. 1089 of 2019 ..8.. ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE 1** **TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO 1139/2019 OF ETTUMANNOOR POLICE STATION, KOTTAYAM DISTRICT, ALONG WITH FIRST INFORMATION STATEMENT**