Madras High Court
C.Kannan vs The Deputy Superintendent Of ... on 18 November, 2022
Crl.A(MD)No.719 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 18.11.2022
CORAM
THE HONOURABLE MR. JUSTICE G.ILANGOVAN
Crl.A(MD)No.719 of 2022
C.Kannan ... Appellant
Vs.
1.The Deputy Superintendent of Police,
Periyakulam Sub Division,
Periyakulam,
Theni District.
2.The Inspector of Police,
Thenkarai Police Station,
Theni District. ... Respondents 1 & 2/Complainants
3.Eswari ... 3rd Respondent/Defacto Complainant
Prayer : This Appeal is filed under Section 14A(2) of the Scheduled Castes
and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, Amendment
Act 1 of 2016, to set aside the order dated 03.11.2022 made in Crl.M.P.No.
1142/2022 in Crime No.392 of 2022 on the file of the learned Sessions Judge,
Special Court for trial of the cases under SC/ST (POA) Act, Theni and
enlarge the petitioner on bail.
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Crl.A(MD)No.719 of 2022
For Appellants : Mr.C.Jeganathan
For Respondents : Mr.RMS.Sethuraman for R1 & R2
Additional Public Prosecutor
Mrs.S.Mahalakshmi for R3
JUDGMENT
This Criminal Appeal has been filed against the order dated
03.11.2022 made in Crl.M.P.No.1142/2022 in Crime No.392 of 2022 on the
file of the learned Sessions Judge, Special Court for trial of the cases under
SC/ST (POA) Act, Theni and enlarge the petitioner on bail.
2.The case of the prosecution in brief:
The defacto complainant lodged a complaint stating that she
belongs to the Scheduled caste community and she was married to one
Mariappan. Some 6 years back, a male child was born to them. She was
affected by HIV virus. After the death of her husband, she was undergoing
treatment in Theni Government College Hospital. She was working as a
labour under the accused, who is a mason by profession. During the month of
January she was subjected to sexual intercourse forcibly by the accused
person. Stating that he has vediographed the above said incident, she was
repeatedly subjected to sexual intercourse. Therefore, she is now eight
months pregnant. When she contacted the accused and requested him to
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Crl.A(MD)No.719 of 2022
marry her, he criminally intimidated and abused her by calling her caste
name. On that basis the complaint has been given by the victim and the case
was registered, the accused was arrested and remanded into judicial custody.
Seeking bail, the accused moved the Special Court, which came to be
dismissed by the order dated 03.11.2022. Against which, this criminal appeal
has been preferred.
3.The learned counsel for the petitioner would submit that
absolutely there is no possibility of any sexual contact between the accused
person and the defacto complainant, since both the defacto complainant and
her husband were affected by HIV virus and the defacto complainant has also
taking treatment; In this circumstances, if the accused was having any sexual
contact with her, then he would also have been affected with HIV Virus;
Taking advantage of the fact that the appellant is a mason and she was also
working under him, to grab money, a false case has been given and even
before the police station, there was a threat and force to give money to settle
the issue.
4.Perusal of the CD file shows that for about 8 months they were in
contact with each other and the allegation that taking advantage of the
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Crl.A(MD)No.719 of 2022
position, she was subjected to frequent sexual assault. The contention on the
part of the petitioner that he was not affected by HIV, which shows the
innocence cannot be the matter for consideration at this stage. Now the
investigation is under process and it was informed the Court that twins were
born to the defacto complainant and statement of the witnesses has also been
recorded under Section 164 of Cr.P.C. by the concerned Magistrate. The
appellant was also subjected to medical examination. But the DNA profiling
test will only reveal the truth. The learned counsel for the appellant submit
that he is also ready to undergo DNA profiling test. Since the investigation is
in the preliminary stage and if the petitioner is enlarged on bail, there is every
likelihood of making threat to the victim and tampering the evidence.
5.The learned counsel for the appellant would further submit that in
the facts and circumstances of the case as per the Judgment of the Honourable
Delhi High Court in the case of Danish Khan @ Saahil Vs. State
(Government of NCT of Delhi), offence under Special Act will not be
attracted. Whether taking advantage of the community the above said act has
been committed or not is also matter for investigation and this fact cannot be
taken into account at this stage. Even if the offence under the Special Act is
not attracted, the offence under Section 376 IPC is serious in nature, which
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Crl.A(MD)No.719 of 2022
requires a thorough investigation. As pointed out earlier, DNA profiling test
only will reveal the truth.
6.Considering the seriousness of the allegation, the bail that was
moved by the petitioner came to be dismissed by the Special Court. So no
new ground has been made out by the appellant in this appeal. I find no
reason to enlarge the petitioner on bail at this stage. This appeal deserves to
be dismissed.
7.Accordingly, this criminal appeal is dismissed.
18.11.2022
Index : Yes/No
Internet : Yes/No
TM
To
1.The Sessions Judge, Special Court for Trial of SC / ST (PoA) Act Cases,
Theni District.
2.The Deputy Superintendent of Police, Periyakulam Sub Division,
Periyakulam, Theni District.
3.The Inspector of Police, Thenkarai Police Station, Theni District.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.
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Crl.A(MD)No.719 of 2022
G.ILANGOVAN,J.
TM
Crl.A(MD)No.719 of 2022
18.11.2022
https://www.mhc.tn.gov.in/judis
