Kerala High Court
Xxxxx vs State Of Kerala on 2 August, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
MONDAY, THE 2ND DAY OF AUGUST 2021 / 11TH SRAVANA, 1943
CRL.A NO. 458 OF 2021
AGAINST THE ORDER IN CRMP 266/2021 OF II ADDITIONAL SESSIONS COURT,
THIRUVANANTHAPURAM
APPELLANT/DEFACTO COMPLAINANT:
XXXXX
XXXXX
BY ADVS. V.G.ARUN (K/795/2004)
V.JAYA RAGI
R.HARIKRISHNAN (KAMBISSERIL)
NEERAJ NARAYAN
RESPONDENTS/STATE/ACCUSED:
1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA 682 031.
2 STATION HOUSE OFFICER, NAYYATTINKARA POLICE STATION,
THIRUVANANTHAPURAM 695 121.
3 DEPUTY SUPERINTENDENT OF POLICE,
NEYYATTINKARA POLICE STATION, THIRUVANANTHAPURAM 695 121.
4 RAHUL R.S., S/O. RAJESH T.V., RESIDING AT SHEEJA BHAVAN,
NELLIMOODU P.O. THIRUVANANTHAPURAM 695 524.
R4 BY ADVS. S.RAJEEV
K.K.DHEERENDRAKRISHNAN
V.VINAY
M.S.ANEER
R1-R3 BY SR. PUBLIC PROSECUTOR S.SEETHA
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 02.08.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl.Appeal No.458 of 2021 2
JUDGMENT
Anticipatory bail was granted by the Sessions Judge to
the accused though the offence alleged includes offence
under Section 376(2)(n) IPC and Section 3(2)(v) of the
Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act by writing a detailed order running into 10
pages. But it is so strange that the bar under Section
18 and 18A of the SC/ST (POA) Act, 1989 or its legal effect
on the given circumstances was not taken up, considered or
discussed anywhere in the order, though the offence alleged
includes Section 3(2)(v) of the said Act. The gravity of
the offence under Section 376(2)(n) was also not seen
discussed, but, a very strange conclusion was made by the
learned Sessions Judge that it is a consensual sexual
intercourse and not a rape as alleged on the simple reason
that she is a grown up lady having post graduation. The
allegation that her consent was obtained under the guise of
an offer to marry her was also not taken into
consideration.
2. The question whether the allegation would attract
the provisions contained in the special enactment - SC/ST
(POA) Act, was also not considered in reference to the bar
under Section 18 and 18A of the said Act.
3. No doubt, in the absence of a prima face case
attracting the offence under the special enactment, the bar
under the provisions of the said enactment would not come
into play, but for which, there should be a prima facie
satisfaction. The legal position was very much settled by
this Court in Arul P.Sugathan and Others v. State of Kerala
and Another [2021 (1) KHC 126] followed by the decision
rendered by the three Judge Bench of the Apex Court in
Prathvi Raj Chauhan v. Union of India and Others [2020 (2)
KHC 423].
4. All the settled principles were overlooked by the
learned Sessions Judge by granting anticipatory bail to the
accused, thereby the basic principles governing grant of
bail under Section 438 Cr.P.C. was overlooked. It is
seemed to be very strange that the bar under Section 18 and
18A of the special enactment or its legal impact in the
given circumstances or its application was not even
whispered anywhere in the order, without which anticipatory
bail was granted in a clandestine manner. The jurisdiction
vested with the officer is not seen exercised in its
correct perspective, but committed a material omission
regarding the bar under Section 18 and 18A of the Act.
Hence, the order granting anticipatory bail will stand set
aside and the application will stand dismissed.
The Crl.Appeal is allowed accordingly.
Sd/-
P.SOMARAJAN
JUDGE
DMR/-
