Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MRS. JUSTICE MARY JOSEPH THURSDAY, THE 2ND DAY OF JUNE 2022 / 12TH JYAISHTA, 1944 CRL.A NO. 90 OF 2022 CRIME NO.669/2020 OF VANITHA POLICE STATION, PATHANAMTHITTA CRL.M.P.NO.2452/2021 OF SESSIONS JUDGE, PATHANAMTHITTA APPELLANT/PETITIONER/ACCSUED NO.3 :- VISHAKH V. NAIR AGED 29 YEARS S/O VIKRAMAN NAIR, KUREEKKATTIL HOUSE, IRAVON P.O, IRAVON VILLAGE, KONNI, PATHANAMTHITTA DISTRICT, PIN - 689691 BY ADVS. MANU RAMACHANDRAN M.KIRANLAL R.RAJESH (VARKALA) T.S.SARATH SAMEER M NAIR HARSHA SUSAN SAM GEETHU KRISHNAN RESPONDENTS/COMPLAINANT STATE & DE-FACTO COMPLAINANT :- 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031. 2 STATION HOUSE OFFICER VANITHA POLICE STATION OF PATHANAMTHITTA, PATHANMATHITTA DISTRICT PIN - 689645 3 XXXXXXXXXX (VICTIM) BY SRI.RENJITH GEORGE, SR.PP THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 02.06.2022, ALONG WITH CRL.A.91/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MRS. JUSTICE MARY JOSEPH THURSDAY, THE 2ND DAY OF JUNE 2022 / 12TH JYAISHTA, 1944 CRL.A NO. 91 OF 2022 CRIME NO.669/2020 OF VANITHA POLICE STATION, PATHANAMTHITTA CRL.M.P.NO.2645/2021 OF SESSIONS JUDGE, PATHANAMTHITTA APPELLANT/PETITIONER/ACCUSED NO.2 :- AJITH S AGED 27 YEARS S/O AJAYAKUMAR, THALOORKOIYICKAL PUTHENVELIL, IRAVON P.O, KONNI, PATHANAMTHITTA DISTRICT, PIN - 689691 BY ADVS. MANU RAMACHANDRAN M.KIRANLAL T.S.SARATH R.RAJESH (VARKALA) SAMEER M NAIR HARSHA SUSAN SAM GEETHU KRISHNAN RESPONDENTS/COMPLAINANT STATE & DE-FACTO COMPLAINANT :-
STATE OF KERALA 1 REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2 THE STATION HOUSE OFFICER VANITHA POLICE STATION OF PATHANAMTHITTA, PATHANMATHITTA DISTRICT PIN - 689645 3 XXXXXXXXXX (VICTIM) BY SRI.RENJITH GEORGE, SR.PUBLIC PROSECUTOR MINI.V.A.SMT.AMBIKA DEVI S, SPL.G.P. (ATROCITIES AGAINST WOMEN AND CHILDREN AND WELFARE OF W AND C) (GP-38) THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
02.06.2022, ALONG WITH CRL.A.90/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
[CRL.A Nos.90/2022, 91/2022] These appeals are directed against orders passed by Court of Sessions, Pathanamthitta (for short ‘the court below’) respectively in Crl.M.P.Nos.2645/2021 and 2452/2021, dismissing applications filed by the appellants under Section 438 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C’).
2. According to Shri.Manu Ramachandran, the learned counsel for the appellants, the defacto
complainant is a lady aged 30 years and also married. As per the allegations, she had stayed with first accused for a long period. She has also alleged in the F.I.S that on a fine day she was abducted in a vehicle by the first accused to a
place and they stayed there together. It was further alleged that she was taken to various lodges and the first accused has committed
forcible rape upon her. The first incident though alleged as occurred on 19.08.2020 the F.I.S was lodged only on 24.12.2020.
3. According to the learned counsel, the defacto complainant was staying with her relatives and if the allegation of abduction was a true one,
her relatives must have complained before any authority. In the case on hand, complaints are not forthcoming from her relatives. Complaint from the complainant was also lodged four months after the alleged incident.
4. According to the learned counsel, the
above circumstances tend to raise suspicion on the allegations of the complainant. According to him, the offences alleged under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989(for short ‘SC/ST (POA) Act’) are unlikely to be attracted.
5. As per the allegation stands raised against the appellants they were found along with the first accused at the time when the lady was taken in the vehicle and they have supplied food
for them during their stay together. With the above allegations, the offences alleged are doubtful to be attracted. The court below has
dismissed the applications seeking pre-arrest bail in view of the bar contained under Section 18 of the SC/ST (POA) Act. When the offences alleged are doubtful to be attracted from the allegations raised against the appellants, bar under Section 18 of the SC/ST (POA) Act cannot have application.
6. Without any application of mind to the factual aspects involved, the impugned order was passed by the court below. Therefore, the impugned
order is liable to be interfered with.
In the result, appeals are allowed. Orders passed in Crl.M.P Nos.2452 of 2021 and 2645 of 2021 by Court of Sessions, Pathanamthitta are set aside. Both appellants are ordered to be released on bail in the event of their arrest on execution by them of a bond for Rs.1,00,000/- with two solvent sureties each for the likesum to the satisfaction of the court below and also on the following conditions :-
1) The appellants shall appear before the investigating officer for interrogation as and when required, in writing. They shall co- operate with the investigation of the case. 2) The appellants shall not influence the witnesses or tamper with evidence. 3) The appellants shall not repeat crimes of similar nature or crimes of other natures. 4) The appellants shall appear and co- operate with the proceedings of the case before the trial court after filling of a final report in the crime.
In case of violation of any of the above conditions, the Investigating Officer is at liberty to approach the court for cancellation of bail. Sd/- MARY JOSEPH JUDGE SMA APPENDIX OF CRL.A 90/2022 PETITIONER ANNEXURES :- Annexure A1 THE TRUE COPY OF THE FIR IN CRIME NO.669/2020 OF VANITHA POLICE STATION OF PATHANAMTHITTA, PATHANAMTHITTA DISTRICT APPENDIX OF CRL.A 91/2022 PETITIONER ANNEXURES :- Annexure A1 THE TRUE COPY OF THE FIR IN CRIME NO.669/2020 OF VANITHA POLICE STATION OF PATHANAMTHITTA, PATHANAMTHITTA DISTRICT