Noufal.K vs State Of Kerala

Ziyad Rahman A.A., J

The appellant is the accused in Crime No. 314/2022 of Pothukal Police Station. The aforesaid crime was registered for the offences punishable under Sections 366 and 376(2)(n) of the IPC and Section 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act (for brevity “the Act”). This appeal is filed by the appellant under Section 14A of the Act, challenging the order passed by the Special Court for Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) and NDPS Act Cases, Manjeri dismissing the application submitted by the appellant for bail.

The facts which led to the filing of this Criminal Appeal are as follows:

The aforesaid crime was registered on the basis of the complaint submitted by the defacto complainant, who belongs to the Scheduled Tribe community, on the allegation that the appellant had forceful sexual intercourse with the defacto complainant under the promise of marriage. In such circumstances, a crime was registered and as part of the investigation, the appellant was arrested on 17/12/2022. Since then, he has been in judicial custody. The application submitted by the appellant for bail was dismissed as per order dated 08.03.2023 and this appeal is filed challenging the same.

Heard Sri. Ahamed Fazil, the learned counsel appearing for the appellant and Smt. Rekha S., the learned Public Prosecutor for the State.

Even though notice has been served upon the defacto complainant/victim through the Station House Officer, Pothencode Police Station, as of now there is no appearance on the part of the defacto complainant.

The learned counsel appearing for the appellant submits that the appellant is innocent of all allegations. It is pointed out that the relationship between the parties is consensus in nature and the same is evident from the statement of the victim.

On the other hand, the learned Public Prosecutor opposed the aforesaid submissions. It is pointed out that there are specific allegation against the appellant to the effect that sexual intercourse was performed by making a false promise of marriage and therefore, the offences are made out. However, it is pointed out that the investigation is already completed and final report submitted.

I have gone through the records and heard contentions raised by both sides.

From the statement of the victim, it is evident that the appellant as well as the defacto complainant were known to each other for the past several years. The relationship between the parties is also evident from the statement written by the victim. The only allegation is that, sexual intercourse was on the basis of a promise to marriage and the appellant retracted from the same.

After considering all the relevant aspects, I am of the view that there is some force in the contentions put forwarded by the learned counsel appearing for the appellant. The possibility that the sexual relationship was on the basis of mutual consent cannot be ruled out. However, since it is a matter of trial, I do not intend to delve deep into the same. Now the fact remains that the investigation in this case is already over and the final report is submitted. The appellant is in custody since 17.12.2022. In the facts and circumstances, I do not think that continued incarceration of the appellant is required.  From the order impugned in this case, it is evident that the learned sessions Judge dismissed the application submitted by the appellant solely on the ground that if the appellant is released on bail, there is a likelihood of influencing or intimidating the witnesses. In my view the said apprehension can be addressed by imposing appropriate conditions.

In the result, this Crl. Appeal is allowed. The order dated 08.03.2023 passed by the Special Court for Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) and NDPS Act Cases, Manjeri in Crl. M.P. No. 462/2023 is set aside.  Accordingly, the appellant is directed to be released on bail subject to the following conditions:-

(i) The appellant shall be released on bail on executing a bond for Rs. 1,00,000/- (Rupees One Lakh only) with two solvent sureties for the like sum each to the satisfaction of the jurisdictional Court.

(ii) The appellant shall also appear before the Investigating Officer as and when required.

(iii) The appellant shall not commit any offence of similar nature while on bail.

(iv) The appellant shall not make any attempt to contact any of the prosecution witnesses, directly or through any other person, or in any other way try to tamper with the evidence or influence any witnesses or other persons related to the investigation.

(v) The appellant shall not leave the State of Kerala without the permission of the trial Court.

(vi) The appellant shall surrender his passport before the jurisdictional court and in case he does not have a passport, an affidavit to that effect shall be filed.

In  case  of  violation  of  any  of  the  above  conditions,  the jurisdictional Court shall be empowered to consider the application for cancellation of bail, if any, and pass appropriate orders in accordance with law.