Jiyo Joseph vs State Of Kerala

A. Badharudeen, J

This is an appeal filed under Section 14A of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the `SC/ST Act' for short), challenging order in CMP.1720/2022 on the files of the Special Judge, under the SC/ST Special Court, Mannarkkad. The appellant is the sole accused in Crime No.1141/2022 of Palakkad Town South Police Station, Palakkad, where the accused alleged to have committed offences punishable under Sections 376(2)(n), 509 of the Indian Penal Code (hereinafter referred to as `IPC' for short) and Section 66 E(a) (b) of Information Technology Act 2000 and Section 3(2)(v), 3(2)(va) of SC/ST Act.

Heard the learned counsel for the appellant as well as the learned Public Prosecutor. Despite having served notice, as mandated under Section 15A(3) of the SC/ST Act, the defacto complainant, did not appear.

The prosecution case in not shell is as under:

The defacto complainant, who is a member of Scheduled Caste community, would allege that she had been staying away from her husband and accordingly she had acquainted with the accused herein. While so, the accused, on a Monday before Onam, 2021, taken her to a lodge and gave some liquid and thereby she became tired. Thereafter, she was subjected to rape against her will, on the promise of marriage. The further allegation is that the appellant videographed the above sexual activities and kept the same. Thereafter, when the defacto complainant demanded the accused to marry her, he threatened her by using the videographs and now the defacto complainant suspects that he had forwarded the said videos to his friends. This is the base on which the prosecution alleges the above case.

The learned counsel for the appellant would submit that the entire allegations are false. The appellant has no criminal antecedents and he was arrested on 04.12.2022 and he has been in custody thereafter. Further the investigation is almost completed. Therefore, his further custody for the purpose of investigation is not necessary.

Whereas the learned Public Prosecutor vehemently opposed the plea on the submission that prima facie the offence alleged against the appellant is specifically made out and the investigation is on the midway. However, no criminal antecedents reported, in so far the appellant is concerned. In the report of the Investigating Officer it is stated that, since atrocities against Scheduled Caste and Scheduled Tribe communities are alarmingly increasing, premature release of the appellant would give a wrong message to the society and, therefore, the appeal is liable to be dismissed confirming the order of the Special Court, refusing bail.

In view of the rival submissions, I have perused the F.I statement given by the defacto complainant, which led to registration of this crime. On perusal, it is noticed that the first occurrence was on a Monday before Onam, 2021. The F.I statement was recorded for the first time on 05.11.2022. Therefore, there is delay of more than one year in lodging F.I statement and the explanation offered by the defacto complainant was that she had believed the offer of marriage and was afraid of publishing her nude video taken by the appellant during the alleged forceful sexual intercourse.

I am not inclined to venture upon as to whether, the explanation for the delay is sufficient or not and I leave the same to be decided by the proper court, in accordance with law. However, going by the F.I statement, a relationship, prior to the first occurrence, between the appellant and the defacto complainant could be seen. It appears that the defacto complainant, admittedly, is a married lady having 3 children and she had been living separately from her husband on the allegation that the husband has extra marital relationship.

Reading the genesis of the prosecution case in the context discussed, the allegation of promise of marriage given by the appellant to the defacto complainant, is a matter of decisive nature, but the same needs proper investigation. I leave the same to the domain of the Investigating Officer. In the case at hand, the appellant has no criminal antecedents and he had been in custody from 04.12.2022. Further the case diary would suggest that the custody of the appellant for the purpose of investigation is practically over. In view of the factual aspects, I am of the view that, the appellant is liable to be released on bail subject to conditions after setting aside the order impugned.

In the result, the appeal stands allowed. The order impugned stands set aside. The appellant/accused shall be released on bail on the following conditions:

i. The accused/appellant shall be released on bail on his executing bond for Rs.50,000/- (Rupees Fifty Thousand Only) with two solvent sureties, each for the like amount to the satisfaction of the jurisdictional court concerned;

ii. The accused/appellant shall not intimidate the witnesses or tamper with evidence. He shall co-operate with the investigation and shall be available for trial;

iii. The accused/appellant shall not leave the jurisdiction of the court, without prior permission of the jurisdictional court.

iv. The accused/appellant shall not involve in any other offence during the currency of bail and any such event, if reported to came to the notice of this Court, the same shall be a reason to cancel the bail hereby granted.

v) The accused/appellant shall not disturb the defacto complainant in any manner hereafter, and any such event, if reported, or comes to the knowledge of this Court, the same is a reason to cancel the bail hereby granted.