Kerala High Court
Vishnu S vs State Of Kerala on 20 January, 2025
Author: K.Babu
Bench: K. Babu
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Crl.A No.1679 of 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
MONDAY, THE 20TH DAY OF JANUARY 2025 / 30TH POUSHA, 1946
CRL.A NO. 1679 OF 2024
CRIME NO.907/2024 OF PEROORKADA POLICE STATION,
THIRUVANANTHAPURAM
AGAINST THE ORDER/JUDGMENT DATED 21.08.2024 IN CRMP NO.483
OF 2024 OF SPECIAL COURT-TRIAL OF OFFENCE UNDER
SC/ST(POA)ACT, 1989, NEDUMANGAD
APPELLANT/PETITIONER/ACCUSED:
VISHNU S,
AGED 35 YEARS,
S/O. SREEKANTHAN NAIR, GAYATHRI HOUSE,
KIZHAKKANELA P.O., PARIPALLY,
KOLLAM, PIN - 691574
BY ADVS.
P.MOHANDAS (ERNAKULAM)
K.SUDHINKUMAR
SABU PULLAN
GOKUL D. SUDHAKARAN
R.BHASKARA KRISHNAN
BHARATH MOHAN
K.P.SATHEESAN (SR.)
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Crl.A No.1679 of 2024
RESPONDENTS/STATE & COUNTER PETITIONER:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
2 THE STATION HOUSE OFFICER,
PEROORKADA POLICE STATION,
THIRUVANANTHAPURAM, PIN - 695005
BY ADV
SMT.G.SHEEBA, PUBLIC PROSECUTOR
S.K.ADHITHYAN
CHRISTY THOMAS
SHAHINA NOUSHAD
REUBEN CHARLY
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
20.01.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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Crl.A No.1679 of 2024
K.BABU, J.
--------------------------------------
Criminal Appeal No.1679 of 2024
---------------------------------------
Dated this the 20th day of January, 2025
JUDGMENT
This is an appeal filed under Section 14-A of the Scheduled
Castes and the Scheduled Tribes (Prevention of Atrocities) Act,
1989. The challenge in this appeal is to the order dated 21.08.2024
in Crl.M.P No.483/2024 passed by the Court of the Special Judge for
the trial of the offences under the Scheduled Castes/Scheduled
Tribes (Prevention of Atrocities) Act, Nedumangad.
2. The appellant is the sole accused in Crime No.907/2024 of
Peroorkkada Police Station. He is alleged to have committed the
offences punishable under Sections 376, 376(2)(n), 354, 354A, 354B,
354C and 506 IPC, Section 66E of the Information Technology Act,
2006 and Section 3(2)(v) of the Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'the
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Act').
The prosecution case
3. The appellant is not a member of a scheduled caste or
scheduled tribe. The victim is a member of a scheduled caste
community. She is a B.Tech Graduate. She is living with her
husband and daughter. The appellant is an Ayurvedic Physician.
The victim got acquainted with the appellant through Facebook.
They maintained contact with each other through social media. The
victim is suffering from back pain. The appellant invited her to have
a consultation at his clinic in Paripally. The victim was not in a
position to travel. She showed her posterior to the appellant
through a video call, following which the appellant suggested some
Ayurvedic medicines. On 07.07.2023 at 1.00 p.m, the appellant
arrived at the residence of the victim. She was alone there. The
appellant threatened her that her video visuals in his possession
would be shown to her husband and others. He entered the house
and locked the front door even when the victim resisted. He had
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forceful sexual intercourse with her. In the incident, the victim
sustained injuries on her breast. The appellant had recorded the
incident on his mobile phone. The victim tried to delete the
recordings from his mobile phone. But the appellant resisted it and
threatened her. The appellant continued to maintain a sexual
relationship with the victim by way of threat. On 05.01.2024 also,
the appellant raped her. Later, she revealed this incident to her
husband and preferred a complaint before the Police.
4. I have heard the learned Senior Counsel appearing for the
appellant, the learned counsel for the victim and the learned Public
Prosecutor.
5. The learned Senior Counsel for the appellant raised the
following contentions in support of the bail plea:
(a) The prosecution failed to establish the
ingredients of the offence under Section 3(2)(v)
of the Act, and therefore, the bar under Section
18 of the Act is not applicable.
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(b) The delay in the registration of the FIR makes
the prosecution case doubtful.
(c) The sexual relationship between the appellant
and the victim is consensual in nature.
6. The learned counsel for the victim submitted the following:
(a) The prosecution could establish the offence
under Section 3(2)(v) of the Act.
(b) The bail plea of the appellant is barred under
Section 18 of the Act.
(c) The custodial interrogation of the appellant is
required, especially to recover the mobile
phone by which the alleged incidents were
recorded.
7. The learned Public Prosecutor submitted the following:
(a) The offences alleged are grave.
(b) The custodial interrogation of the appellant is
highly required.
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(c) The investigation is only in the preliminary
stage.
8. The learned Senior Counsel for the appellant has taken me
to the FIS given by the victim and the belated complaint filed by her
before the State Commission for the Scheduled Castes and the
Scheduled Tribes. The learned Senior Counsel submitted that in the
FIS, the victim did not mention anything to attract the offence under
Section 3(2)(v) of the Act. The learned Senior Counsel also
submitted that the victim revealed that she belonged to a scheduled
caste only in the belated petition filed before the State Commission
for the Scheduled Castes and Scheduled Tribes with intent to
harass the appellant. The learned Senior Counsel further
submitted that to attract the offence under Section 3(2)(v) of the
Act, the commission of the offence under the IPC against the
person shall be on the ground that such person is a member of a
scheduled caste or scheduled tribe. The learned Senior Counsel
submitted that the FIS does not contain any such averments.
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9. The learned Senior Counsel relied on Shajan Skaria v.
State of Kerala (2024 SCC OnLine SC 2249) and Aneesh v. State of
Kerala (2024 KHC 726) in support of his contentions. The learned
Senior Counsel submitted that there is a clear distinction between
rape and consensual sex. It is submitted that the ingredients of the
offence under Section 376 are conspicuously absent in the
allegations levelled against the appellant. The learned Senior
Counsel relying on Sivarajan K.S v. State of Kerala (2024 KHC
OnLine 725) submitted that the Court owes a duty to look into the
attending circumstances, over and above the averments in the FIS,
to see whether there are materials to indicate that the offence of
rape and the offence under the Act were committed. The learned
Senior Counsel, heavily relying on the FIS, submitted that the
averments therein point to a clear case of consensual sexual
relationship in which the victim invited the appellant to maintain a
relationship with her.
10. The learned counsel for the victim submitted that after the
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amendment of Section 3(2)(v) of the Act, the knowledge of the
offender regarding the caste or the tribal identity of the victim is
sufficient to attract the offence. The learned counsel relied on
Section 8 of the Act to contend that there is a presumption that the
appellant knew the fact that the victim belonged to a scheduled
caste. The learned counsel relied on Rajachandrasekharan @ Babu
v. State of Kerala [2024 (2) KHC 568] in support of his contentions.
11. The essential question is whether the prosecution
materials prima facie revealed the ingredients of the offence under
Section 3(2)(v) of the Act. It is trite that the bar created under
Sections 18 and 18-A of the Act shall not apply if the complaint or
FIS does not make out a prima facie case for the applicability of the
provisions of the Act {See Prathvi Raj Chauhan v. Union of India
[(2020) 4 SCC 727] and Subhash Kashinath Mahajan (Dr.) v. State of
Maharashtra and Another [2018 (2) KHC 207]}.
12. To get over the rider contained in Section 18 of the Act, the
learned Senior Counsel relied on the ground that the FIS does not
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contain an allegation that the offence of rape was committed
knowing that the victim is a member of a scheduled caste.
13. The learned Senior Counsel heavily relied on Shajan
Skaria and Aneesh to substantiate his contentions. In Shajan
Skaria, the Supreme Court considered the question of whether
mere knowledge of the caste identity of the complainant was
sufficient to attract the offence under Section 3(1)(r) of the Act. The
Supreme Court held that mere knowledge of the fact that the victim
is a member of a scheduled caste or scheduled tribe is not
sufficient to attract Section 3(1)(r) of the Act. It was held that the
offence must have been committed against the person on the
ground or for the reason that such person is a member of a
scheduled caste or scheduled tribe.
14. It is relevant to refer to the observation of the Supreme
Court in paragraphs 79 and 80 of the judgment in Shajan Skaria
(supra):
"79. We find no merit in the aforesaid submission.
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Wherever the legislature intended that mere knowledge of the
fact that the victim is a member of Scheduled Caste or
Scheduled Tribe would be sufficient to constitute an offence
under the Act, 1989, it has said so in so many words. We may
reproduce some of the relevant provisions where knowledge
that the complainant belongs to the Scheduled Castes or
Scheduled Tribes is sufficient in itself to constitute the offence:
"3. Punishments for offences atrocities.-(1)
xxx xxx xxx
(w)(i) 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;
(ii) 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."
xxx xxx xxx
(2) Whoever, not being a member of a Scheduled
Caste or a Scheduled Tribe,--
xxx xxx xxx
(v) commits any offence under the Penal Code, 1860
(45 of 1860) 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], shall be
punishable with imprisonment for life and with fine;
(va) commits any offence specified in the Schedule,
against a person or property, knowing that such
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person is a member of a Scheduled Caste or a
Scheduled Tribe or such property belongs to such
member, shall be punishable with such punishment
as specified under the Penal Code, 1860 (45 of 1860)
for such offences and shall also be liable to fine;]
(Emphasis supplied)
80. At the cost of repetition, the words in Section 3(1)(r)
of the Act, 1989 are altogether different. Mere knowledge of the
fact that the victim is a member of the Scheduled Caste or
Scheduled Tribe is not sufficient to attract Section 3(1)(r) of the
Act, 1989. As discussed earlier, the offence must have been
committed against the person on the ground or for the reason
that such person is a member of Scheduled Caste or
Scheduled Tribe. When we are considering whether prima
facie materials exist, warranting arrest of the appellant, there
is nothing to indicate that the allegations/statements alleged to
have been made by the appellant were for the reason that the
complainant is a member of a Scheduled Caste."
15. In Shajan Skaria referring to the element of mens rea
contained in the word "knowing" in the various provisions including
Section 3(2)(v) of the Act, the Supreme Court came to the
conclusion that mere knowledge of the fact that the victim is a
member of a scheduled caste or scheduled tribe is not sufficient to
attract the offence. In Hitesh Verma the Supreme Court held that
the offence under Section 3(2)(v) is not established merely on the
fact that the informant is a member of a scheduled caste unless
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there is an intention to commit the offence for the reason that the
victim belongs to such caste. In Khuman Singh v. State of Madhya
Pradesh [(2020) 18 SCC 763] while considering the amended Section
3(2)(v) of the Act the Supreme Court held that to attract the offence
the acts alleged must have been committed against the person on
the ground that such person is a member of a scheduled caste or
scheduled tribe. The reliance placed by the learned counsel for the
victim on the presumptive provision under Section 8 of the Act has
no relevance at this stage as it is a matter of evidence.
16. In the present case, the FIS does not state that the
appellant/accused committed the offence of rape for the reason
that the victim belonged to a scheduled caste. Section 3(2)(v) of the
Act was added based on the improved statement given by her
before the State Commission for the Scheduled Castes and the
Scheduled Tribes.
17. Therefore, this Court comes to the conclusion that the
prosecution failed to prima facie establish the offence under
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Section 3(2)(v) of the Act. Therefore, the bar under Section 18 of the
Act is not applicable to the facts of the case and hence, the
application seeking anticipatory bail is maintainable.
18. The learned Senior Counsel submitted that since the
sexual connection was consensual in nature, the offence under
Section 376 of IPC is not made out.
19. The allegations in the FIS go to show that the sexual
connection was against the will of the victim. She has specifically
stated that the appellant threatened her that he would share the
video of her posterior part of the body recorded for medical
purpose to her husband and he succeeded in having sexual
connection. She further stated that without her consent the
appellant had recorded the first incident of rape and continued to
maintain sexual connection with her using the said video.
Therefore, the contention of the learned Senior Counsel that the
ingredients of the offence under Section 376 have not been made
out falls to ground. The offences alleged are grave in nature. The
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prosecution has a consistent case that the custodial interrogation
of the appellant is required, especially to effect the recovery of the
mobile phone stated to have been used to record the video of the
various instances of the offence.
20. Having regard to the entire circumstances, this Court is of
the view that the appellant is not entitled to anticipatory bail.
21. It is legally permissible for this Court to direct the
accused to surrender before the Jurisdictional Court while
rejecting a prayer for anticipatory bail {See: Nathu Singh v. State of
Uttar Pradesh (MANU/SC/0360/2021) : [2021 (3) KLT Online 1113 (SC)]
and Rahul v. State of Kerala [ILR 2021 (4) Kerala 64]}.
22. The appellant is directed to surrender before the
jurisdictional Court within a period of two weeks from this date. On
his surrender before the jurisdictional Court, if the appellant
prefers an application seeking regular bail, the Court shall dispose
of the application on the same day itself in the light of the principles
declared by the Supreme Court in Satender Kumar Antil v. Central
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Bureau of Investigation [(2022) 10 SCC 51].
23. The appellant is at liberty to serve a copy of the
application seeking bail in advance to the Public Prosecutor and the
counsel who appeared for the defacto complainant. On receipt of
the advance copy of the bail application, the Public Prosecutor shall
see that notice is served on the victim before the bail application is
heard.
The Criminal Appeal stands dismissed.
Sd/-
K.BABU,
JUDGE
KAS
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PETITIONER ANNEXURES
Annexure -I TRUE COPY OF THE FI STATEMENT GIVEN BY
THE DEFACTO COMPLAINANT DATED
31.05.2024 BEFORE THE 2ND RESPONDENT
Annexure -II TRUE COPY OF THE FIR IN CRIME
NO.907/2024 OF PEROORKADA POLICE
STATION DATED 31.05.2024
Annexure -III TRUE COPY OF THE COMPLAINT FILED BY THE
2ND RESPONDENT BEFORE THE COMMISSION
DATED 14.06.2024
Annexure -IV TRUE COPY OF THE ORDER DATED 11-07-2024
Annexure -V FREE COPY OF THE ORDER DATED 21-08-2024
IN CRL.M.P.NO. 483/2024 OF THE SPECIAL
JUDGE, SPECIAL COURT FOR THE TRIAL OF
OFFENCES UNDER SC/ST (POA) ACT,
NEDUMANGAD IN CRIME NO. 907/2024 OF
PEROORKADA POLICE STATION
