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BECHU KURIAN THOMAS
Nibin V. V. – Appellant
Versus
State Of Kerala – Respondent
ORDER :
1. This is an application for pre-arrest bail under Section 438 of the Cr.P.C.
2. Petitioner is the accused in Crime No.1749 of 2021 of Marad Police Station, Ernakulam, alleging offences under Section 376 (2)(n) of the Indian Penal Code, 1860 r/w Section 3(2) of the Scheduled Castes and the Scheduled Tribes, (Prevention of Atrocities) Act, 1989.
3. The prosecution case is that, the accused sexually abused the defacto complainant a married woman, for almost five years under the promise of marriage and that subsequently accused retracted from his promise thereby by committing the offences under Section 376. The prosecution also alleges that petitioner had called the defacto complainant by her caste name, which is a caste notified as a scheduled caste under the proclamation.
4. The prosecution submitted that this bail application is not maintainable in view of the Bar under Section 18 of the SC/ST Act.
5. Sri.Syam J.Sam, the learned counsel for the petitioner contended that, even if the entire allegations of the defacto complainant are admitted, still it will only reflect a consensual relationship and not a case of rape. It was further pointed out that, the offence under SC/ST
The bar under Section 18 of the SC & ST (POA) Act does not apply to cases where the alleged abuse in the name of caste takes place within a private place and is not in public view.
The court confirmed that the prohibition on pre-arrest bail under the SC/ST Act does not preclude the option for regular bail applications.
Allegations of sexual intercourse based on a promise of marriage may constitute an offence under the SC/ST (PoA) Act, despite consent, necessitating denial of anticipatory bail.
The absence of independent witnesses and the nature of allegations can lead to the granting of pre-arrest bail under the SCST Act, despite serious charges.
After incorporation of S.18A of SC/ST (POA) Act, in cases where there is no prima facie case, grant of anticipatory bail is not specifically barred.
The exclusion of pre-arrest bail under Section 438(4) Cr.P.C. is not absolute; it does not apply when no prima facie case is made against the accused.
The court affirmed that prima facie allegations warrant custodial investigation under the SC/ST (POA) Act, denying bail based on the necessity of meaningful investigation.
The main legal point established is that bail can be granted under Section 14(A)(2) of the SC/ST (PA) Act based on the prosecutrix's allegations, lack of sustained injury, and the need for the appell....
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