Kerala High Court
Akshay.S vs State Of Kerala on 11 April, 2025
Crl.A.No.629 of 2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
FRIDAY, THE 11TH DAY OF APRIL 2025 / 21ST CHAITHRA, 1947
CRL.A NO. 629 OF 2024
CRIME NO.1013/2023 OF PANTHEERANKAVU POLICE STATION, KOZHIKODE
AGAINST THE ORDER DATED 27.03.2024 IN CRL.M.C.NO.429 OF
2024 ON THE FILE OF THE COURT OF SESSION, KOZHIKODE.
APPELLANT(S)/PETITIONER:
AKSHAY S.,
AGED 27 YEARS,
S/O. SUBHASH V.SINGH, 11/322-L, 'AKSHAY', CONVENT
ROAD, NAGARAM DESOM, NAGARAM VILLAGE, KOZHIKODE
TALUK, KOZHIKODE DISTRICT,
PIN - 673032
BY ADVS.
THOMAS ABRAHAM (NILACKAPPILLIL)
ARUN TOM PHILIP
RESPONDENT(S)/RESPONDENT:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
2 XXXXXXXX
AGED XXXXX YEARS
XXXXXXXX
BY ADV SHEEBA THOMAS, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
7.04.2025, THE COURT ON 11.04.2025 DELIVERED THE FOLLOWING:
Crl.A.No.629 of 2024
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C.S.SUDHA, J.
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Criminal Appeal No.629 of 2024
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Dated this the 11th day of April 2025
JUDGMENT
This appeal under Section 14A of the Scheduled Castes & the
Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the Act) has
been filed by the petitioner/accused in crime no.1013/2023 of
Pantheerankavu police station, Kozhikode, aggrieved by the dismissal
of his petition under Section 438 Cr.P.C., namely,
Crl.M.C.No.429/2024, on the file of the Court of Session, Kozhikode,
seeking pre-arrest bail.
2. It was submitted by the learned counsel for the
appellant/accused that the latter got acquainted with the 2 nd respondent
herein, the alleged victim through Shaadi.com. The 2 nd respondent,
though a married lady registered herself in the aforesaid site as an
unmarried lady. The appellant/accused got acquainted with the 2 nd
respondent. Suppressing the fact that the 2nd respondent was already
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married, she entered into a relationship with the appellant/accused,
pursuant to which they started living together. While so, the 2 nd
respondent conceived and later on, at her instance she underwent an
abortion. It was 6 months after the abortion, Annexure A5 FIS was
given based on which the present crime, that is, crime no.1013/2023,
that is, Annexure A6 FIR has been registered. No offences as alleged
in the FIR are made out hence the trial court ought to have granted
pre-arrest bail.
3. The request for pre-arrest bail is opposed by the
learned Public Prosecutor who submitted that the investigation is only
at its preliminary stage. The offences alleged are made out from the
materials presently available. Further, the bar under Sections 18 and
18A of the Act is attracted and hence the trial court was right in
dismissing the application. No grounds for interference are made out,
argued the public prosecutor.
4. Heard both sides.
5. Admittedly, the appellant/accused and the 2nd
respondent were in a relationship and they were living together. Even
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going by the case of the 2nd respondent in the first FIR, that is,
Annexure A1 FIR in crime no.167/2023, Women Police Station,
Basavanagudi, she met the appellant/accused on 26/05/2022 through
the matrimony website Shaadi.com, pursuant to which they developed
a relationship and started living together. Her case in Annexure A2
FIS in the said crime seen registered on 24/06/2023 is that she along
with the appellant/accused were residing together in Calicut. The
appellant had introduced her to his family and there was a discussion
about their marriage also. Later on, they moved to Bangalore where
also they lived together. When the appellant/accused suffered loss in
his business, he demanded money from her on the premise that she
would any way have to pay money at the time of their marriage.
Accordingly, she availed loans from banks and gave an amount of
₹19.98 lakhs and also 117 gms of gold jewellery to the
appellant/accused. While they were living together, the
appellant/accused used to come home drunk, abuse her and physically
assault her. She was also sexually abused during the said period. On
03/01/2023 she realised that she was pregnant and when she informed
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the appellant/accused, he lost his temper and started beating her. On
12/02/2023 the appellant/accused took her to A.R. Hospital, Mysore
and compelled her to undergo an abortion. She was thereafter
wrongfully detained in the house for about 8 days during which period
the appellant/accused tortured her mentally and physically. On
05/06/2023 the appellant/accused told her that they need to mend their
relationship and get married. However, thereafter also he demanded
more money and assaulted her. On 06/06/2023 at 03:00 a.m. the
appellant/accused left the house without informing her. Hence the
complaint to the police, for taking necessary action against the
appellant/accused for having taken away her mobile phone, money
and gold ornaments. As per Annexure A1 FIR based on Annexure A2
FIS, the appellant/accused is alleged to have committed the offences
punishable under Sections 417, 420, 354A, 313, 343, 323 and 504
IPC. It is pertinent to note that there is no allegation of rape or
commission of any offence(s) under the Act.
6. The Court of Session, Kozhikode as per Annexure
A4 order dated 08/09/2023 granted anticipatory bail to the
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appellant/accused in Annexure A1 crime.
7. The present crime, that is, crime no.1013/2013,
Pantheerankavu police station, Kozhikode, that is, Annexure A6 FIR
is seen registered on 24/12/2023 alleging the commission of the
offences punishable under Sections 376, 376(2)(n), 384, 324 and 506
IPC. Initially when the crime was registered there was no allegation of
commission of any offence(s) punishable under the Act. From the CD
it is seen that Section 3(1)(w)(i)(ii) of the Act was added to the FIR
on 31/01/2024. The impugned order refers to Sections 3(2)(v) and 3(2)
(va) also of the Act.
8. In the present crime, the prosecution case as
revealed from Annexure A5 FIS is as follows: the 2nd respondent met
the appellant/accused through the matrimony website Shaadi.com, at
which time she was quite depressed as she was separated from her
husband. Initially the appellant/accused was quite kind and loving
towards her. They fell in love. As she was working from home, as
insisted by the appellant/accused she joined him to Kozhikode, where
an apartment was taken on rent in her name and they started living
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together. From 25/07/2022 till 24/10/2022 the appellant/accused was
also living with her. On 27/07/2022 at 06:30 a.m. the
appellant/accused approached her, kissed her and tried to have sexual
intercourse with her. When she did not consent to the same, the
appellant/accused forcibly pushed her on to the bed and raped her. On
the promise of marriage, the appellant/accused on 30/07/2022 at 06:00
a.m. and on 19/09/2022 at 23:00 hrs. forcibly had sexual intercourse
with her. He has taken ₹19.98 lakhs and 117 gms of gold ornaments
for his financial dealings. Now he is demanding more money and
threatening her that if she does not accede to his demand, he would
send her naked photographs to her relatives. The appellant/accused
regularly takes drugs. For 8 days, he locked her in an apartment in
Bangalore and burnt her with cigarettes. She has scars of the burn
injuries. The appellant/accused took away her phone and so she was
unable to contact the police or her relatives. On 19/09/2022 at 23:00
hrs. he again raped her. He threatened her with dire consequences if
she disclosed the incident to others. When she became pregnant, the
appellant/accused on 12/02/2023, forcibly took her to A.R. Hospital,
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Mysore and aborted the 11 week old foetus. She has come to know
from the Instagram account of the appellant/accused that he is getting
married on 05/01/2024. This news has mentally and physically
drained her (തളർത ). When she came to know about his impending
marriage, she along with her paternal aunt went to the house of the
appellant/accused. There she was insulted by his relatives. His father
threatened to do away with her. Hence necessary action may be taken.
In the FIS it is also stated that she belongs to the Naik community,
which is a Scheduled Tribe.
9. As noticed earlier no offence(s) under the Act was
initially alleged to have been committed. It was thereafter Sections
3(1)(w)(i)(ii); 3(2)(v) and 3(2)(va) of the Act are seen added. Section
3(1)(w)(i) says that whoever, not being a member of a Scheduled
Caste or a Scheduled Tribe, intentionally touches a woman belonging
to a Scheduled Caste or a Scheduled Tribe, knowing that she belongs
to a Scheduled Caste or a Scheduled Tribe, when such act of touching
is of a sexual nature and is without the recipient's consent is liable to
be punished. Section 3(1)(w)(ii) is attracted when any person not
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being a Scheduled Caste or Scheduled Tribe uses words, acts or
gestures of a sexual nature towards a woman belonging to a Scheduled
Caste or a Scheduled Tribe, knowing that she belongs to a Scheduled
Caste or a Scheduled Tribe. Section 3(2)(v) of the Act is attracted
when a person not being a member of a Scheduled Caste or a
Scheduled Tribe, commits any offence under the Indian Penal Code
punishable with imprisonment for a term of ten years or more against
a person or property knowing that such person is a member of a
Scheduled Caste or a Scheduled Tribe or such property belongs to
such member. Finally, Section 3(2) (va) says that when a person not
being a member of a Scheduled Caste or Scheduled Tribe commits
any offence specified in the Schedule, against a person or property,
knowing that such person is a member of a Scheduled Caste or a
Scheduled Tribe or such property belongs to such member, is liable to
be punished with such punishment as specified under the Indian Penal
Code for such offences and shall also be liable to fine.
10. None of the aforesaid offences are prima facie made
out from Annexure A5 FIS because the offences under the Act will not
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be made out merely for the reason that the victim is a member of
Scheduled Caste or Scheduled Tribe community. If only it is shown
that the crime was committed merely for the reason that the victim
belongs to Scheduled Caste or Scheduled Tribe community, the
offences under the Act would be made out. That is not prima facie
made out from the materials presently on record. That being the
position, it can only be held that the bar under Section 18 and 18A of
the Act is not attracted.
11. As noticed earlier, in Annexure A1 FIR, the 2 nd
respondent has no case of rape. It is only the 2 nd FIR, that is, Annexure
A5 the allegation of rape is raised for the first time. Even after the
instances of rape on 27/07/2022, 30/07/2022 and on 19/09/2022 and
abortion on 12/02/2023, she is seen to have continued to live with him
till 06/06/2023, that is for merely a year when the appellant/accused is
alleged to have abandoned her.
12. According to the appellant/accused, in May 2023,
the Mysore police contacted the 2nd respondent regarding one of the
complaints she had filed earlier. It was then that the appellant/accused
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came to know that she was already married and that her marriage still
subsists. The appellant/accused then realised the reason why the 2 nd
respondent had kept postponing the marriage by giving various
excuses. When the 2nd respondent realised that the appellant/accused
has come to know of her marital status, she left his company on her
own accord and thereafter on 24/06/2023, gave the first case against
him followed by the present case on 24/12/2023.
13. As per Annexure A7 judgment dated 30/01/2024 in
C.C.No.990/2022 on the file of the Court of the VIIth Additional
Senior Civil Judge and JMFC, Mysuru, the husband and in-laws of the
2nd respondent have been acquitted under Section 248(1) Cr.P.C. of the
offences punishable under Sections 498A, 323, 504, 506 read with
Section 34 IPC and Sections 3 and 4 of the Dowry Prohibition Act,
1961. On going through the judgment it is seen that the 2nd respondent
herein and her mother turned hostile resulting in the acquittal of the
accused persons in the said case.
14. In the appeal memorandum it is alleged that the
marriage between the 2nd respondent and her husband, the first accused
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in Annexure A7 case was dissolved by a decree of mutual consent in
February 2024. Therefore, when the 2nd respondent and the
appellant/accused started residing together from 2022 onwards she
was a married lady. In both the FIS in the aforesaid crimes, the 2 nd
respondent does not have a case that the appellant/accused was well
aware of her marital status and despite knowing so, he started living
with her. When the 2nd respondent continued to be married to
somebody else, how could the appellant/accused have married her.
During the period they lived together from 2022 till 2023, the 2 nd
respondent continued to be a married lady. It appears that only in
2024, the marriage of the 2nd respondent was dissolved. She has no
case that the appellant/accused promised to marry her after she
obtained a divorce from her husband. No reasons are given as to why
the allegation of rape was never raised in the first FIR. From a reading
of Annexure A5 FIS, it appears that the same has been given when the
2nd respondent came to know that the appellant/accused has decided to
marry another lady. In the facts and circumstances of the case, I do not
think that the arrest and detention of the accused or custodial
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interrogation is necessary because the fact that the parties lived
together and had coitus is admitted. The question whether the 2 nd
respondent was in any way cheated by the appellant/accused is
something which will have to be determined based on the evidence
adduced by the prosecution during the trial of the case. Hence, I find
that the appellant/accused is entitled to an order of pre-arrest bail. The
trial court erred in dismissing the application for pre-arrest bail and so
the impugned order requires to be interfered with.
In the result, the appeal is allowed and the appellant/accused
is granted pre-arrest bail on the following conditions:-
i) The appellant/accused in the event of his arrest shall
be released on bail on execution of a bond to the
satisfaction of the officer concerned.
ii) The appellant/accused shall co-operate with the
investigation and appear before the investigating
officer as and when directed.
iii) He shall not leave the country without the prior
permission of the trial Court.
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iv) He shall surrender his passport to the
jurisdictional court. If the appellant does not have a
passport, he shall file an affidavit to the said effect
before the jurisdictional court within seven days of his
release on bail.
v) The appellant/accused shall not directly or
indirectly make any inducement, threat or promise to
any person acquainted with the facts of the case so as
to dissuade him/her from disclosing such facts to the
Court or to any police officer.
Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA
JUDGE
ak
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APPELLANT'S ANNEXURES:-
ANNEXURE -A1 THE TRUE COPY OF THE FIR IN CRIME
NO.167/2023 OF BASAVANAGUDI WOMEN POLICE
STATION, BENGALURU CITY.
ANNEXURE -A2 THE TRUE COPY OF THE ENGLISH TRANSLATION
OF THE FIR CONTENTS STATED IN KANNADA IN
COLUMN NO.10 OF THE FIR DATED 24.06.2023
IN CRIME NO.0167/2023 OF THE BASAVANAGUDI
WOMEN POLICE STATION, BENGALURU CITY,
KARNATAKA.
ANNEXURE -A3 THE TRUE COPY OF THE TREATMENT CERTIFICATE
DATED 10.07.2023 ISSUED BY ABHASA
REHABILITATION AND WELLNESS HOME ADDRESSED
TO THE SHO, BASAVANAGUDI POLICE STATION
ANNEXURE -A4 THE TRUE COPY OF THE ORDER DATED
08.09.2023 IN CRL.M.C. 1251/2023 OF THE
COURT OF HON'BLE SESSIONS JUDGE,
KOZHIKODE.
ANNEXURE -A5 THE TRUE COPY OF THE FIRST INFORMATION
STATEMENT DATED 24.12.2023 IN CRIME
NO.1013/2023 OF PANTHEERANKAVU POLICE
STAION ALOGN WITH ITS TYPED COPY.
ANNEXURE -A6 THE TRUE COPY OF THE FIRST INFORMATION
REPORT DATED 24.12.2023 IN CRIME
NO.1013/2023 OF PANTHEERANKAVU POLICE
STAION.
ANNEXURE -A7 THE TRUE COPY OF THE JUDGMENT DATED
30.01.2024 IN C.C.NO.990/2022 OF THE COURT
OF THE VIITH ADDITIONAL SENIOR CIVIL JUDGE
AND J.F.M.C., MYSURU.
