Biju N.v. Vs State Of Kerala

Court: HIGH COURT OF KERALA

Bench: JUSTICE ALEXANDER THOMAS

Biju N.v. Vs State Of Kerala on 29 May 2019

Law Point: 

JUDGEMENT

1. The appellant is aggrieved by the impugned order dated 23.2.2019 rendered by the Special Sessions Court for SC/ST (POA) Cases, Mananthavadi, whereby his application for grant of anticipatory bail in respect of Crime No.36/2019 of Kalpetta Police Station has been dismissed.

2. Heard Smt.K.Deepa (Payyannur), learned counsel for the petitioner and Sri.K.B.udayakumar, learned Prosecutor appearing for the respondents.

3. The prosecution case in brief is that the petitioner accused and the lady defacto complainant had a love affair and that he promised to marry her and they had sexual relationship and all throughout the petitioner-accused was well aware that the defacto complainant belongs to Scheduled Tribe community. The incidents had happened for the period from 26.1.2017 to 5.11.2018 and that later the petitioner backdropped from his promise and abandoned her and in the course of relationship, the petitioner had also borrowed Rs.50,000/- from the lady defacto complainant and had also taken her gold ornaments weighing 2 sovereigns and that the money and the gold ornaments were not returned by him. Per contra, the case of the petitioner that he is a small time contractor and the lady was engaged for doing some menial work on temporary basis and that she is making false allegations, etc. It is urged by the learned counsel for the petitioner that even going by the case set up in the FI statement, it can be seen that the alleged incidents of sexual relationship would have taken place with the consent of the parties and that the vital ingredients of rape as envisaged in Sec.376 is not made out. The learned counsel for the petitioner would point out that it is by now well established by the Apex Court and various High Courts including this Court that where the sexual relationship is with the consent of the defacto complainant, the allegation of false promise of marriage will not constitute misconception of facts under Sec.90 of the I.P.C., and there is a substantial distinction to be rape as well as consensual relationship.

4. The learned prosecutor has opposed the grant of bail and submitted that there is bar under Sec.18A of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, for consideration of the anticipatory bail application and that the Special Sessions Court cannot be found fault with for rejecting the Bail Application on that ground. Further it has been held by the Apex Court and this Court in very many cases that where the accused can probabilise a strong case regarding the falsity or improbability of the allegations, then the bar will not apply and notwithstanding the said provisions, the competent courts can consider the grant of anticipatory bail in appropriate cases.

5. After having heard both sides and after evaluating and testing the facts and circumstances in the light of the judicial precedents in the matter of distinction between rape and consensual relationship, this Court is of the view that the appellant has made out a probable case that the sexual relationship would have been primarily on the basis of consent of the parties. Accordingly, this Court is of the view that custodial interrogation of the appellant may not be really warranted in this case. In that view of the matter, it is ordered that the impugned order dated 23.2.2019 rendered by the Special Sessions Court for SC/ST (POA) Cases, Mananthavadi, in Crl.M.P.No.72/2019 dismissing the anticipatory bail application will stand set aside.

6. Accordingly, it is ordered that in the event of the appellant-accused being arrested in relation to Crime No.36/2019 of Kalpetta Police Station, then he shall be released on bail on his executing a bond for Rs.50,000/- (Rupees Fifty Thousand only) and on his furnishing 2 solvent sureties for the like sum each to the satisfaction of the competent court concerned. However, the above order shall be subject to the following conditions:

(i) The appellant shall not involve in any criminal offences of similar nature.
(ii) The appellant shall fully co-operate with the investigation.
(iii) The appellant shall report before the Investigating Officer as and when required in that connection.
(iv) The appellant shall not influence witness or shall not tamper or attempt to tamper evidence in any manner, whatsoever.
(v) The appellant shall not go anywhere near the residence or work place of the lady defacto complainant until the conclusion of the trial

If there is any violation of the abovesaid conditions by the appellant, then the jurisdictional court concerned stand hereby empowered, to consider the plea for cancellation of bail at the appropriate time.

With these observations and directions, the above Criminal Appeal stands allowed.

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