Arun J vs State Of Kerala

A. Badharudeen, J

This is an appeal filed under Section 14A(2) of the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as `SC/ST Act' for convenience) challenging order in Crl.M.C.No.2199 on the file of the Special Judge dated 17.10.2022, whereby the Special Judge dismissed the anticipatory bail plea at the instance of the appellant herein.

Heard the learned counsel for the appellant and the learned counsel appearing for the defacto complainant as well as the learned Public Prosecutor.

Summary of the prosecution allegations is as under: The prosecution alleges commission of offences punishable under Sections 376(2)(j)(n), 506, 328, 377, 417 of the Indian Penal Code (`IPC' for short) and Section 3(2)(v)(va) of the SC/ST Act and Section 66E of IT Act, against the appellant. The specific allegation is that the accused, who joined in K.S.F.E, Kalamassery Branch as Junior Assistant on permanent basis and who does not belong to Scheduled Caste/Scheduled Tribe community, made acquaintance with the defacto complainant, who belonged to Scheduled Caste community, while she was working in Kerala State Financial Enterprises, Kalamassery Branch on temporary basis during 2019. Thereby they had maintained an intimate relationship. Thereafter on 08.11.2020, the defacto complainant reached room No.10 of KMS apartment, Kalamassery, where the appellant stayed, for serving food to the appellant. It is alleged by the prosecution that during this time the appellant compelled the defacto complainant to consume alcohol. Accordingly after administering alcohol to the defacto complainant, the appellant herein captured the nude visuals of defacto complainant and she was subjected to rape without her consent. The appellant, thereafter, invited the defacto complainant to accompany him to a hotel room booked by him at Cherai and he threatened and cruelly intimidated the defacto complainant that if she was not ready to accompany him, he would publish the nude photos captured by him. In consequence of this threat and coercion, she accompanied the appellant on 14.11.2020 to room No.107 of Saphair Club situates near to the Cherai beach. There also, she was subjected to sexual assaults including unnatural offences. Further, for a period from 11.12.2020 to 13.12.2020, she was subjected to rape at Cladouti Beach resort at Varkala. She was again subjected to rape from 1.1.2021 to 3.1.2021 at Moonline resort, Munnar, with promise of marriage. Thus, she was subjected to rape continuously. It is alleged further that since the appellant herein avoided the defacto complainant, she attempted to commit suicide. Thereafter, the appellant cheated the defacto complainant by performing a false marriage ceremony on 21.10.2021 before Sub Registrar Office, Vaikom, with deceitful intention to avoid the defacto complainant. After the said false marriage, the appellant left the company of the defacto complainant and fully deserted her.

While impeaching the veracity of the order of the Special Court impugned herein, it is submitted by the learned counsel for the appellant that the prosecution allegation as to the intimacy in between the appellant and the defacto complainant is not in dispute. He submitted further that the intimacy between the appellant and the defacto complainant finally resulted in their marriage before the Sub Registrar Office, Vaikom as per the Special Marriage Act, on 21.10.2021 and the subsequent events after collapse of the marriage led to filing of this complaint. According to the learned counsel for the appellant, none of the offences alleged by the prosecution would attract in this case since the appellant married the defacto complainant as promised, though the marital relationship was strained subsequently. According to the learned counsel for the appellant, as per the first complaint lodged by the defacto complainant on 1.12.2021, copy of which is produced as Annexure-2 herein, there is no allegation as to cheating or rape or commission of any offences under the SC/ST Act. He also pointed out that in the FIS also, there is no allegation that the appellant had done any overt acts knowing that the defacto complainant is a member of the Scheduled Caste community.

Repelling this argument, the learned counsel for the defacto complainant argued that the marriage was not consummated and the so called marriage was a drama played by the appellant to avoid serious penal consequences. He would submit further that Annexure-2 complaint was made with intention to have consummation and conjugation between the appellant and the defacto complainant and, therefore, in the said complaint fateful imputations against the accused were avoided without being disclosed. He had pointed out the last sentence in Annexure-2 to convince this point.

On perusal of Annexure-2 it could be gathered that the said complaint was filed with prayer for consummation and joint living. In the complaint, as pointed out by the learned counsel for the appellant, there is allegation that after the marriage, the appellant used to humiliate the defacto complainant by calling her caste name. Most importantly, in Annexure-2 complaint, the prayer before the Deputy Superintendent of Police, Kottayam was to call the appellant and to effectuate the marital life between the appellant and the defacto complainant.

At this juncture, it is submitted by the learned counsel for the appellant further that even in the FIS given soon after registration of the crime also, the allegation regarding commission of rape as stated in Annexure-2 is vague and the dates itself were mistakenly referred.

It is submitted by the learned counsel for the defacto complainant that the defacto complainant filed a detailed objection along with additional statement recorded by the Investigating Officer as that of the defacto complainant after recording the FIS. He pointed out that in the additional statement the mistake in the matter of mentioning dates in the FIS was pointed out and corrected. He also submitted that though there was a marriage, as alleged, on 21.10.2021, that marriage never consummated and the appellant left the company of the defacto complainant on the date of marriage itself to avoid the defacto complainant. He also submitted that immediately thereafter the appellant filed divorce petition as O.P.1549/2021 before the Family Court, Nedumangad, and the main allegation in the Original Petition is adulterous life of the defacto complainant. He submitted that the allegation of adulterous life within a period of one month from the date of marriage, that too, without consuming marriage itself, shows the deceitful mind of the appellant and the said allegation is not at all believable. He would submit that the accused never had any intention to marry the defacto complainant and he had created a smoke screen under the pretext of marriage to neglect and avoid the defacto complainant and to get himself freed from the legal consequence of the overt acts. It is submitted further that under Sections 18 and 18-A of the SC/ST Act, grant of anticipatory bail is specifically barred and in this case since there is prima facie case, anticipatory bail cannot be granted and, therefore, the order impugned is liable to be confirmed.

The learned Public Prosecutor vehemently supported the prosecution case and supported the case put up by the learned counsel for the defacto complainant. He also pointed out the fact that a false marriage was solemnised without consummation, to avoid the penal consequences in so far as the overt acts done by the accused against the defacto complainant, who is a member of Scheduled Caste community, and the falsity and the deceitful intention of the complaint in doing so, could be gathered from filing of divorce O.P as on 8.12.2021, after filing Annexure-2 complaint by the defacto complainant before the Deputy Superintendent of Police, Kottayam. Submitting so, the learned Public Prosecutor also opposed grant of pre-arrest bail highlighting the bar under Section 18 and 18A of the SC/ST Act.

In this matter, it could be gathered that initially the appellant filed petition under Section 438 of Cr.P.C before this Court seeking pre-arrest bail as per B.A.No.9637/2021 and thereafter the said petition was dismissed on 02.09.2022 with liberty to approach the Special Court to seek the said relief.

In this matter, the prime question to be considered is whether there is prima facie case so as to attract the bar under Section 18 and 18-A of the SC/ST Act.

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 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 prima facie case.

Therefore, the law is no more res integra on the point that prima facie grant of anticipatory bail for offences under the SC/ST Act is specifically barred and the bar would not apply in cases where there is no prima facie case.

Here, though in Annexure-2 complaint and FIS the details of occurrence were not narrated in niceties, in the additional statement, the defacto complainant narrated everything in detail in minute niceties with prima facie materials to see commission of the offences alleged or referred herein above by the prosecution and the specific allegation is that the accused created smoke marriage screen and defrauded and cheated the defacto complainant. Accordingly, allegation under Section 417 of I.P.C also was alleged. Apart from that there is allegation that the accused committed offence under Section 328 of IPC on the allegation that the accused administered liquor to the defacto complainant at their initial meeting at the room of the appellant and thereafter she was subjected to forceful sexual intercourse at the first instance and captured her nude photos. The subsequent events are alleged to be by threat and coercion by using the nude photos. In this matter, the prosecution alleges commission of offence under Section 3(2)(va) and 3(2)(v) of the SC/ST Act. Section 3(2)(va) deals with commission of any offence specified in the schedule against a person or property knowing that such a person is a member of the Scheduled Caste or Scheduled Tribe and the punishment prescribed is the punishment specified for the said offence under the IPC. On perusal of the schedule in the SC/ST Act, offence punishable under Section 506 of IPC is an offence in the schedule and therefore commission of offence under Section 506 IPC would attract an offence under Section 3(2)(va) of the SC/ST Act and the offence punishable under Section 506 IPC is alleged against the appellant on the ground that he had criminally intimidated and committed repeated sexual assault. Section 3(2)(v) of the SC/ST Act, provides punishment with punishment for life and with fine if a person, who does not belong to SC/ST community, commits any offence under the IPC punishable with imprisonment for 10 years or more against a person or property knowing that the person is a member of Scheduled Caste. Regarding the required knowledge or the word `knowing' contemplated under Section 3(2)(v) of SC/ST Act is concerned, Section 8(c) of the SC/ST Act would throw light. Section 8(c) provides that the accused was having personal knowledge of the victim or his family, the Court shall presume that the accused was aware of the caste or tribal identity of the victim, unless the contrary is proved. Hence, the defacto complainant and the appellant were working in the same office with personal knowledge. Thereafter, the relationship reached upto the alleged false marriage Therefore, the appellant's knowledge regarding the caste of the defacto complainant is also foreseeable.

Here the prosecution alleges commission of offences punishable under Section 376(2) as well as under Sections 328 and 377 of IPC, punishable with 10 years or more. Therefore, prima facie offence under Section 3(2)(v) of the SC/ST Act also would attract.

Thus, evidently, as I have already pointed out, the available materials would go to show that the defacto complainant is a member of Scheduled Caste community and this fact is known to the accused and after knowing the said fact, he maintained intimacy which led to the overt acts and the alleged false marriage, as per the case of the prosecution as well as the defacto complainant.

To summarise it has to be held that in this case involving allegation of commission of offences punishable under Sections 376(2)(j)(n), 506, 328, 377, 417 of the IPC and Section 3(2)(v)(va) of the SC/ST Act and Section 66E of IT Act, it is difficult to hold at this stage that there is no prima facie case so that the appellant will be released on anticipatory bail since grant of anticipatory bail in such a case is specifically barred under Section 18 and 18-A of the SC/ST Act.

Therefore, I am of the view that the order impugned does not require any interference. Hence this appeal must fail and is accordingly dismissed.