Dinesh M v. State of Kerala & ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **FRIDAY, THE 30[TH] DAY OF SEPTEMBER 2022 / 8TH ASWINA, 1944** **CRL.A NO. 933 OF 2022** **AGAINST THE ORDER/JUDGMENTCRMC 1019/2022 OF DISTRICT COURT & SESSIONS COURT, ERNAKULAM** ## **APPELLANT/PETITIONER:** DINESH M AGED 43 YEARS NAISSERY HOUSE, NEW LANE, THOTTAKATTUKARA, ALUVA, ERNAKULAM, PIN – 683108. BY ADVS. K.DHRUV KUMAR SHAKTHI PRAKASH HARIKRISHNAN M.S. ## **RESPONDENTS/RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN – 682031. 2 STATE OF KERALA ASSISTANT COMMISSIONER OF POLICE, ERNAKULAM REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031. 3 STATE OF KERALA STATION HOUSE OFFICER, ERNAKULAM TOWN SOUTH POLICE STATION REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN – 682031. 4 XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX BY ADVS. PUBLIC PROSECUTOR K.R.VINOD M.S.LETHA(K/139/1996) SR.PP-SRI.T.R.RENJITH THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27.09.2022, THE COURT ON 30.09.2022 DELIVERED THE FOLLOWING: Crl.Appeal No.933/2022 2 ## _**A. BADHARUDEEN, J.**_ ================================ _Crl.Appeal No.933 of 2022_ ================================ _Dated this the 30[th] day of September, 2022_ ## _**J U D G M E N T**_ This appeal arises out of order in Crl.M.C.No.1019/2022 dated 27.05.2022 on the file of the Special Judge (Sessions Judge), Ernakulam under the Special Court for Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 [hereinafter referred to as `the SC/ST Act' for convenience], in Crime No.472/2022 of Ernakulam Town South Police Station. Accused is the appellant. Respondents 1 to 3 herein are the officials of the State of Kerala and the 4[th] respondent herein is the defacto complainant. 2. Heard the learned counsel for the appellant and Crl.Appeal No.933/2022 3 respondents 1 to 3, represented by the learned Public Prosecutor as well as the 4[th] respondent, the defacto complainant in this matter, as mandated under Section 15-A(3) of the SC/ST Act. 3. Short facts: The prosecution would allege that the appellant/accused herein committed offences under Section 376 (2)(n), 406, 420 of IPC and Section 3(1)(u), 3(1)(w)(i), 3(1)(w)(ii) and 3(2)(v) of the SC/ST Act. It is also alleged that the defacto complainant, who belongs to Scheduled Caste community, worked at NCC Office on temporary basis in the year 2009 and she met the appellant/accused, who is not a member of the Scheduled Caste or Scheduled Tribe, during 2009. Thereafter, the defacto complainant maintained a healthy relationship with the accused and accordingly the accused promised to marry the defacto complainant. During the affectionate relationship, the appellant/accused shared his issues with his wife and the intention to divorce and offered to marry the defacto complainant. Crl.Appeal No.933/2022 4 4. While so, the defacto complainant secured permanent job at MPEDA during the year 2013 and she started her residence at the BSNL Quarters. Accordingly, the appellant/accused started to visit the defacto complainant on the promise to marry her, and she believed his words. Keeping the relationship, believing the promise of marriage, the defacto complainant was subjected to sexual intercourse by the appellant/accused herein on several occasions. He also borrowed from the defacto money complaimant. When she demanded back the money, the appellant/accused threatened that he would post her nude visuals in the social media. She obtained loan from various financial institutions and gave that money to the appellant/accused and accordingly he received Rs.8 lakh and the appellant/accused returned back Rs.2 lakh to the defacto complainant. The appellant/accused continued these acts till February, 2022. The defacto complainant belongs to a Scheduled Caste and the Crl.Appeal No.933/2022 5 appellant/accused humiliated her by calling her caste name and also asked her that she secured the job only because she belonged to Scheduled Caste community. On the above facts, Crime No.472/2022 of Ernakulam Town South Police Station was registered alleging commission of the above offences. 5. Apprehending arrest in the above case, the appellant herein filed bail application before the Special Court seeking prearrest bail. The learned Special Judge considered the rival contentions after detailed hearing and finally dismissed the application. 6. It is submitted by the learned counsel for the appellant/accused that a cordial relationship was maintained by the complainant with the accused starting from 2013, and collapse of the relationship led to registration of this crime. According to the learned counsel, serious offences alleged against the accused herein is one under Section 376 (2)(n) of I.P.C along with offences under Crl.Appeal No.933/2022 6 Sections 406 and 420 of I.P.C. It is submitted that the offence under Section 3(1)(u) of the SC/ST Act would not attract in this case on any stretch of imagination since the same would attract only against members of Scheduled Castes or Scheduled Tribes in general. He would submit further that either the offences alleged to be committed under the I.P.C or the offences alleged to be committed under Section 3(1)(w)(i), 3(1)(w)(ii) or 3(2)(v) of the SC/ST Act would not attract in this case. It is argued that the sexual intercourse involved in this matter, alleged to be in between the defacto complainant and the accused, is one with consent and as such offence of rape would not attract. Therefore, the other offences also would not attract. 7. Per-contra, the learned counsel for the defacto complainant zealously opposed this contention and submitted that during 2009, the defacto complainant effected divorce and maintained relationship with the appellant/accused since the Crl.Appeal No.933/2022 7 accused promised to marry the defacto complainant. Accordingly, the appellant/accused borrowed Rs.8 lakh also during the said period from the defacto complainant. He would submit that if this Court finds at this stage that the sexual intercourse is with consent, there is no meaning in further investigation and the trial and therefore, this Court may appraise the contention based on prosecution records. According to the learned counsel for the defacto complainant, the defacto complainant, who got divorced on the promise given by the appellant/accused to marry her, had maintained the said relationship on the assurance of the accused/appellant that he would get divorce from his wife and marry her. Therefore, there is no consensual sexual intercourse and the defacto complainant was subjected to rape on the promise of marriage, where the question of consent does not arise. The learned counsel for the defacto complainant placed extract of Whats app chat in between the accused and the defacto Crl.Appeal No.933/2022 8 complainant in support of the prosecution case. 8. The learned Public Prosecutor also vehemently supported the contentions raised by the defacto complainant and he alleged that in this matter arrest, custodial interrogation and medical examination of the accused are necessary to effect meaningful investigation and successful prosecution, since offence under Section 375 of I.P.C is one among the main allegations. Hence pre-arrest bail cannot be granted. That apart, since offences under the SC/ST Act also alleged, grant of pre-arrest bail is specifically barred under Sections 18 and 18-A of the SC/ST Act, since a strong _prima facie_ case is born out from the prosecution records. 9. It is pointed out by the learned counsel for the defacto complainant as well as the learned Public Prosecutor that considering all these aspects, the Special Court rightly dismissed the anticipatory bail application and therefore the order warrants no Crl.Appeal No.933/2022 9 interference. 10. While appraising the rival contentions, reference to Sections 18 and 18-A of the SC/ST Act is necessary. Section 18 of the SC/ST Act provides that nothing in Section 438 of the Code of Criminal Procedure shall apply in relation to any case involving the arrest of any person or accusation of an offence committed under this Act. 11. In the decision reported in [(2012) 8 SCC 795 : MANU/SC/0732/2012], _**Vilas Pandurang Pawar & anr. v. State of**_ ## _**Maharashtra & Ors.**_ the Apex Court held as under: _The scope of Section 18 of the SC/ST Act read with Section 438 of the Code is such that it creates a specific bar in the grant of anticipatory bail. When an offence is registered against a person under the provisions of the SC/ST Act, no court shall entertain an application for anticipatory bail, unless it prima facie finds that such an offence is not made out. Moreover, while considering the application for bail, scope for appreciation of evidence and other material on record is limited. The court is not expected to indulge_ Crl.Appeal No.933/2022 10 _in critical analysis of the evidence on record. When a provision has been enacted in the Special Act to protect the persons who belong to the Scheduled Castes and the Scheduled Tribes and a bar has been imposed in granting bail Under Section 438 of the Code, the provision in the Special Act cannot be easily brushed aside by elaborate discussion on the evidence._ 12. In another decision reported in [(2014) 15 SCC 521 : MANU/SC/0407/2013], _**Shakuntla Devi v. Baljinder Singh**_ , the Apex Court held as under: _The High Court has not given any finding in the impugned order that an offence under the aforesaid Act is not made out against the Respondent and has granted anticipatory bail, which is contrary to the provisions of Section 18 of the aforesaid Act as well as the aforesaid decision of this Court in_ _**Vilas Pandurang Pawar** case, MANU/SC/0732/2012 : (2012) 8 SCC 795. Hence, without going into the merits of the allegations made against the Respondent, we set aside the impugned order of the High Court granting bail to the respondent._ 13. In fact, after the decision of the Apex Court in [(2018) 6 SCC 454], _**Dr.Subhash Kashi Nath Mahajan v. The State of Maharashtra**_ , SC/ST Act was amended and Section 18-A got incorporated. As per Section 18-A(1), for the purpose of this Act, - Crl.Appeal No.933/2022 11 (a) preliminary enquiry shall not be required for registration of a first information report against any person; or (b) the Investigating Officer shall not require approval for the arrest, if necessary, of any person, against whom an accusation of having committed an offence under this Act has been made and no procedure other than that provided under this Act or the Code shall apply. Section 18(2) further provides that the provisions of Section 438 of the Code shall not apply to a case under this Act, notwithstanding any judgment or order or direction of any court. 14. In the decision reported in [2020 (2) KHC 423 : AIR 2020 SC 1036 : (2020) 4 SCC 727 : MANU/SC/0157/2020], _**Prathvi Raj Chauhan v. Union of India(UOI) & Ors.**_ , a 3 Bench of the Apex Court considered the impact of Section 18-A and it was held that _as far as the provision of Section 18-A and anticipatory bail is concerned, the judgment of Mishra, J. has stated that in cases where no prima facie materials exist warranting arrest in a_ Crl.Appeal No.933/2022 12 _complaint, the court has the inherent power to direct a pre-arrest_ _bail_ . Thus the law is settled by the Apex Court after incorporation of Section 18-A also that there is no absolute bar in entertaining an application for anticipatory bail in cases alleging commission of offences under the SC/ST Act if the prosecution allegations do not constitute any offence under the SC/ST Act and the court has the power to grant anticipatory bail if the prosecution allegations do not make a case. _prima facie_ 15. In the case on hand, the specific case put up by the defacto complainant is that the accused/appellant promised to marry her and she got divorced for the said purpose and maintained relationship believing the promise of marriage. According to her, she was subjected to repeated rape on the promise of marrying her and also bagged Rs.8 lakh by the accused. 16. Going by the prosecution allegations, it is not fair on the part of this Court, at this stage, to hold that offence under Section Crl.Appeal No.933/2022 13 376(2)(n) of I.P.C is not made out. Similarly, the specific allegation is that the accused/appellant obtained Rs.8 lakh from the defacto complainant and he had returned only Rs.2 lakh and thus misappropriated Rs.6 lakh and the accused done breach of trust also. Leaving offence under Section 3(1)(u) of the SC/ST Act, commission of offences under Sections 3(1)(w)(i) and 3(1)(w)(ii) as well as 3(2)(v) of the SC/ST Act required to be considered. 17. Sections 3(1)(w)(i) and 3(2)(v) provide as under : _“3. Punishments for offences of atrocities:- (1) Whoever, not being a member of a Scheduled Caste or Scheduled Tribe,-_ _xxxx xxxx xxxxx_ _(w)(i) intentionally touches a woman belonging to a Scheduled Caste or a Scheduled Tribe, knowing that she belongs to a Scheduled Caste or a Scheduled Tribe, when such act of touching is of a sexual nature and is without the recipient's consent;_ _(w)(ii) uses words, acts or gestures of a sexual nature towards a woman belonging to a Scheduled Caste or a Scheduled Tribe, knowing that she belongs to a Scheduled Caste or a Scheduled Tribe._ **==> picture [36 x 42] intentionally omitted <==** _Xxxx xxxx xxxx_ _(2 Whoever, not being a member of a Scheduled Caste or a Scheduled_ Crl.Appeal No.933/2022 14 _Tribe,--_ _xxxx xxxx xxxx_ _(v) commits any offence under the Indian Penal Code (45 of 1860) 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], shall be punishable with imprisonment for life and with fine;_ _xxxx xxxx xxxxx"_ 18. Going by the prosecution records, a prima facie case is well made out. That is to say, there is no reason to hold that _prima facie_ case regarding commission of offences under Section 3(1)(w) (i), 3(1)(w)(ii) and 3(2)(v) of the SC/ST Act is not made out and therefore acting on the mandate of Section 18 and 18-A of the SC/ST Act, the anticipatory bail cannot be granted to the appellant/accused. Even otherwise in case alleging commission of a grievous offence under Section 376(2)(n) of IPC, arrest, custodial interrogation and medical examination of the accused inclusive of potency test are absolutely essential and in view of the matter, anticipatory bail cannot be granted in such a case also. In view of Crl.Appeal No.933/2022 15 the matter, order of Special Judge dismissing the anticipatory bail is liable to sustain and accordingly the same is confirmed. In the result, the appeal fails and is accordingly dismissed. _Sd/-_ _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_ Crl.Appeal No.933/2022 16 **APPENDIX OF CRL.A 933/2022** ## PETITIONER'S ANNEXURES ANNEXURE 1(SEALED COVER) : CERTIFIED COPY OF FIR NO.472/2022 OF ERNAKULAM TOWN SOUTH POLICE STATION. (CONFIDENTIAL). ANNEXURE 2(SEALED COVER) : CERTIFIED COPY OF FIS IN CRIME NO.472/2022 OF ERNAKULAM TOWN SOUTH POLICE STATION. (CONFIDENTIAL). ANNEXURE 3(SEALED COVER) : TRUE COPY OF THE SCREENSHOTS OF THE WHATSAPP CONVERSATION BETWEEN THE DE FACTO COMPLAINANT AND THE APPELLANT'S WIFE (CONFIDENTIAL). ANNEXURE 4(SEALED COVER) : TRUE COPY OF THE PHTOGRAPHS SENT BY THE DE FACTO COMPLAINANT TO THE APPELLANT'S WIFE TO SHOW HER INTIMACY WITH THE APPELLANT (CONFIDENTIAL). ANNEXURE 5 : TRUE COPY OF JUDGMENT OF THIS HON'BLE COURT IN BAIL APPLICATION NO.4346 OF 2022 AND CONNECTED CASES DATED 2.9.2022.