IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 7TH APRIL 2008 / 18TH CHAITHRA 1930 Bail Appl..No. 1995 of 2008() ----------------------------- CRIME NO. 390/07 OF CHANDERA POLICE STATION PETITIONER/ACCUSED ----------------------------------- ILLYAS.T., S/O.K.P.ERAMU, MAVILAKADAPPURAM, PADANNA VILLAGE, KASARAGODE DISTRICT. BY ADV. SRI.SUNNY MATHEW RESPONDENTS: COMPLAINANT ------------------------ STATE OF KERALA THROUGH THE SUB INSPECTOR OF POLICE, CHANDERA POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. JAI GEORGE THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 07/04/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - B.A.No. 1995 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of April, 2008 O R D E R Application for anticipatory bail. The petitioner faces allegations under Section 376 I.P.C. and Section 3(1)(xi) of the SC/ST (Prevention of Atrocities) Act. The learned counsel for the petitioner submits that the petitioner is absolutely innocent. Even accepting the entire allegations, there is no element of the offence of rape. The petitioner is said to be a 22 year old young man, who works in the field of art. He is said to be a singer. The defacto complainant, a woman aged about 27 years, is also a singer and sings for dramas etc. She belongs to the Scheduled Caste community. The petitioner does not belong to any such caste/tribe. 2. The crux of the allegations is that the two happened to meet each other and they allegedly fell in love. They had sexual intercourses with each other on several occasions. It is alleged that such sexual intercourses were agreed to by the complainant B.A.No. 1995 of 2008 2 only because the petitioner had promised to marry the alleged victim. The petitioner later did not comply with his promise to marry her and he made arrangements to enter matrimony with another woman. At this juncture the defacto complainant filed the complaint alleging that she has been deceived by the petitioner and that the practice of deception had prompted her to give consent for the sexual intercourses. The consent given for such intercourses is not consent in law. This in short is the factual matrix on which allegation of rape is raised. 3. The learned counsel for the petitioner submits that the allegations of rape are so artificial that a prudent mind cannot place reliance on those and compel a person to undergo arrest and incarceration on the basis of such allegations. 4. The learned Prosecutor points out that there is an allegation raised under Section 3(1)(xi) of the SC/ST (Prevention of Atrocities) Act. In view of such an allegation and in the light of Section 18 of the SC/ST (Prevention of Atrocities) Act, the petitioner is not entitled to claim anticipatory bail, he contends. On the question of maintainability the point may be answered in favour of the prosecution and this application may be dismissed, it is prayed. It is significant and B.A.No. 1995 of 2008 3 crucial to note that there is no allegation raised under Section 3(2)(v) of the SC/ST (Prevention of Atrocities) Act. It is also of great relevance to note that admittedly there was no intention to outrage the modesty of the woman and at worst the allegation is only that they performed consensual sexual intercourses for which consent was induced by fraudulent misrepresentation. 5. It is by now trite that stipulations under Section 18 of the Act cannot non-suit a claimant and entail the rejection of his claim merely because in the F.I.R. an allegation is raised under Section 3(1)(xi) of the SC/ST (Prevention of Atrocities) Act. The mere inclusion of such section, when the factual allegations do not offer foundation for such allegation, cannot certainly deprive the petitioner of his right under Section 438 Cr.P.C. The question in this case is not whether the allegations are acceptable or not, but whether the allegations if accepted would reveal an offence under Section 3(1)(xi) of the SC/ST (Prevention of Atrocities) Act. I have no doubt or hesitation in my mind that the allegations raised even if accepted in toto cannot attract the offence under Section 3(1)(xi) of the SC/ST (Prevention of B.A.No. 1995 of 2008 4 Atrocities) Act and in these circumstances the mere inclusion of such section of offence in the F.I.R. cannot at any rate justify the rejection of the prayer for anticipatory bail to the petitioner under Section 18 of the Act. 6. In the result: (1) This application is allowed. (2) The following directions are issued under Section 438 Cr.P.C. (a) The petitioner shall surrender before the learned Magistrate on 15.4.2008 at 11 a.m. The learned Magistrate shall release the petitioner on regular bail on condition that he executes a bond for Rs.25,000/- (Rupees twenty five thousand only) with two solvent sureties each for the like sum to the satisfaction of the learned Magistrate. (b) The petitioner shall make himself available for interrogation before the Investigating Officer between 10 a.m. and 5 p.m. on 16.4.2008 and 17.4.2008. During this period the petitioner can be interrogated and all necessary steps in investigation, including the B.A.No. 1995 of 2008 5 potency test can be conducted by the Investigating Officer. Thereafter he shall appear before the Investigating Officer on all Mondays and Fridays between 10 a.m. and 12 noon for a period of two months and subsequently as and when directed by the Investigating Officer in writing to do so. (c) If the petitioner does not appear before the learned Magistrate as directed in clause (1) above, these directions shall lapse on 15.4.2008 and the police shall be at liberty thereafter to arrest the petitioner and deal with him in accordance with law. (d) If the petitioner were arrested prior to his surrender on 15.4.2008 as directed in clause (1) above, he shall be released on bail on his executing a bond for Rs.25,000/- without any surety undertaking to appear before the learned Magistrate on 15.4.2008. (R. BASANT) Judge tm