XXXXXXXXXX vs State Of Kerala

V.G.Arun, J

The appellants are the accused in Crime No.872 of 2022 of Aryanad police station, registered for offences punishable under Sections 376, 420 and 498A of the Indian Penal Code and Section 3(2) (va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The essential facts are as under;

The de facto complainant, while staying as a paying guest in connection with her studies, got acquainted with the 1st appellant through social media. Their acquaintance developed into love. When the de facto complainant fell sick, she sought the 1st appellant’s help for visiting a Doctor. After examining the de facto complainant, she was admitted in a private hospital and was given a single room in the pay ward. That night, the 1st appellant committed rape on her. The de facto complainant was discharged next day morning and went home along with her mother. On recovery, the de facto complainant returned to the paying guest facility. She had to visit the hospital again and this time also, the 1st appellant accompanied her. While returning from the hospital, the 1st appellant tried to forcibly take her to a lodge, which the de facto complainant resisted. Seeing this, the public gathered and got the de facto complainant into an autorickshaw. The 1st appellant also somehow got into the autorickshaw and tried to molest her. Ultimately, the de facto complainant sought refuge in the police station. On being informed about what had transpired, the police summoned the parents of the de facto complainant and 1st appellant. They came to a settlement, whereby appellants 2 and 3 agreed that the 1st appellant would marry the de facto complainant. Accordingly the marriage was conducted. The de facto complainant alleges that her life was miserable after marriage and she was subjected to frequent physical assault by the 1st appellant and mental harassment by appellants 2 and 3. This finally resulted in the de facto complainant approaching the police and the crime being registered. Although appellants approached the Sessions Court seeking anticipatory bail, that application was rejected in view of the prohibition under Section 18 of the Act. Aggrieved, this Criminal Appeal is filed.

Learned Counsel for the appellants contended that the allegation of rape cannot be believed for a moment, since the de facto complainant had voluntarily married the 1st appellant with the consent of her parents. It is submitted that the allegations with respect to the physical and mental harassment after marriage are also false and even if accepted, no offence under the SC/ST (PoA) Act, is attracted.

Learned Counsel for the de facto complainant submitted that the cruelty meted out against the de facto complainant is sufficient to deter any Court from granting pre-arrest bail to the appellants.

Learned Public Prosecutor also opposed the prayer for pre-arrest bail, pointing out that a young girl was initially raped and later assaulted and abused.

On going through the case diary, it is seen that there is prima facie substance in the objection raised by the learned Public Prosecutor and Counsel for the de facto complainant. In her FI statement, the de facto complainant has categorically narrated the incidents prior to and after marriage. The materials on record prima facie make out the offence under the SC/ST (PoA) Act. Even otherwise, the allegation being that the 1st appellant had committed rape on the de facto complainant, he cannot be granted the luxury of pre-arrest bail. At the same time, there is no reason to refuse pre-arrest bail to appellants 2 and 3 as they are arrayed as accused by reason of being parents of the 1st appellant. Of course, allegations as to mental harassment and torture are made against them also. Even then, there is no necessity to subject appellants 2 and 3 to custodial interrogation.

In the result, the appeal is allowed in part. The 1st appellant's prayer for anticipatory bail is rejected. The appellants 2 and 3 are found entitled for anticipatory bail. Accordingly, the following directions are issued;

(i) Appellants 2 and 3 shall appear before the investigating officer within two weeks. On appearance, they shall be interrogated and in the event of their arrest, released on bail on their executing bond for Rs.50,000/- each, with two solvent sureties each for the like amount, to the satisfaction of the investigating officer.

(ii) Appellants 2 and 3 shall not leave the State without prior intimation to the investigating officer.

(iii) Appellants 2 and 3 shall surrender their passport to the investigating officer.

(iii) Appellants 2 and 3 shall not attempt to contact the de facto complainant or intimidate her in any manner.