IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 7TH JULY 2008 / '6TH ASHADHA 1930 Crl.MC.No. 2521 of 2008() ------------------------- CRIME NO. 56/08 OF ARECODE POLICE STATION PETITIONER: ------------ HUSSAIN, S/O.USMAN PANNIYARMALA VETTILAPARA (PO)PERMANENTLY RESIDING AT PANGOTTIL HOUSE, VELLOO (PO) POOKKOOTTOOR MALAPPURAM DIST. BY ADV. SRI.T.K.SAIDALIKUTTY SRI.A.A.ZIYAD RAHMAN SRI.LAL K.JOSEPH SMT.SHEENA SAMUEL RESPONDENTS: ------------- 1. MINI AGED 25 YEARS, D/O.RAMAN, PANNIYARMALAL COLONY OORNGATTIRI AMSOM, MALAPPURAM DIST. 2. THE STATE REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 3. THE SUB INSPECTOR OF POLICE, ARECODE POLICE STATION, ARECODE MALAPPURAM DISTRICT. R2 & 3 BY PUBLIC PROSECUTOR SRI. AMJAD ALI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 2521 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of July, 2008 O R D E R The petitioner faces allegations in a crime registered alleging offences punishable, inter alia, under Section 376 I.P.C. and Section 3(2)(v) of the SC/ST (Prevention of Atrocities) Act. 2. According to the petitioner he is absolutely innocent. Even if the entire allegations in the F.I. Statement were accepted, as against the petitioner, it was admittedly a consensual sexual intercourse between the complainant, a person belonging to the Scheduled Tribe, who must have been aged about 23 years at the relevant time. The F.I. Statement lodged long after the alleged incident of sexual intercourse with the petitioner very clearly states that it was a consensual sexual intercourse. Of course, later when the statement under Section 164 Cr.P.C. was recorded, allegations of intercourse without consent is raised. Investigation is in progress. The petitioner moved the learned Sessions Judge for anticipatory bail. The same was rejected. Crl.M.C.No. 2521 of 2008 2 3. According to the petitioner, in any view of the matter, there can be no valid allegation under Section 376 I.P.C. or Section 3(2)(v) of the SC/ST (Prevention of Atrocities) Act against the petitioner. He, therefore, prays that the crime registered in so far as it relates to the petitioner now may be quashed and he may be saved of the trauma of unnecessary and unjustified criminal prosecution against him. 4. I have perused the F.I. Statement. I have also perused the Section 164 statement of the victim/defacto complainant. She, it is revealed, is a person belonging to the Scheduled Tribe and the complaint has been lodged through the Project Officer and her cause was taken up by the Panchayat Jagratha Samithi. It is true that in the complaint/F.I. Statement the allegations indicate that there was no sexual intercourse without her consent. In these circumstances whether the allegation under Section 376 or Section 3(2)(v) of the SC/ST (Prevention of Atrocities) Act would lie is certainly a matter which deserves closer scrutiny. However, I am not persuaded to accept the request that the investigation deserves to be quashed, as according to me, it certainly will have to be ascertained in the course of Crl.M.C.No. 2521 of 2008 3 investigation whether the offence under Section 3(1)(xii) of the SC/ST (Prevention of Atrocities) Act has been revealed or not. I do not want to express any final opinion on those questions, but I am certainly of the opinion that the powers under Section 482 Cr.P.C. do not deserve to be invoked now to terminate prematurely the investigation into the allegations raised under Section 3 of the SC/ST (Prevention of Atrocities) Act. 5. The petitioner's plight deserves sympathy. He cannot move the Court ordinarily under Section 438 Cr.P.C. in view of the bar under Section 18 of the SC/ST (Prevention of Atrocities) Act . I am satisfied that this petition can be dismissed with appropriate observations. 5. This application is accordingly dismissed, but with the specific observation that if the petitioner appears before the learned Magistrate and applies for bail after giving sufficient prior notice to the Prosecutor in charge of the case, the learned Magistrate must proceed to pass orders on merits, in accordance with law and expeditiously - on the date of surrender itself. Crl.M.C.No. 2521 of 2008 4 6. The mere fact that an offence under SC/ST Act is triable by a Court of Sessions will not justify abdication of jurisdiction by the learned Magistrates under Section 437 Cr.P.C. The decisions in Ali v. State of Kerala (2000 (2) KLT 280), Shanu v. State of Kerala (2000 (3) KLT 452), Krishnakumar v. State of Kerala (2005 (1) KLD (Cri) 42) and P.P. Kader v. State of Kerala (2005 (1) KLD (Cri) 250) make the position very clear. It is for the petitioners now to appear before the learned Magistrate and seek regular bail. I have no reason to assume that the learned Magistrate would not consider the applications to be filed by them on merits, in accordance with law and expeditiously. Every court must do the same. No special or specific direction appears to be necessary. Sufficient general directions have already been issued by this Court in the decision in Alice George v. Dy.S.P. of Police (2003 (1) KLT 339). (R. BASANT) Judge tm Crl.M.C.No. 2521 of 2008 5