Bar On Anticipatory Bail U/S. 18 SC-ST Act Will Not Apply If Prima Facie No Substantive Offence Is Made Out: Kerala High Court

The High Court was hearing two appeals filed by the petitioner accused under Section 14A of the SC/ST Act, challenging the dismissal of applications for anticipatory bail.

A Single Judge Bench comprising Justice Gopinath P. observed that “…in cases where the allegation is that an offence under Section 3(2)(v) of the SC/ST Act has been committed and when this Court prima facie concludes that the substantive offence punishable with a term of imprisonment for a period of 10 years or more has not been committed, the said prima facie conclusion is sufficient to hold that the bar under Section 18 of the SC/ST Act against the grant of anticipatory bail will not apply.”

Advocate S. Rajeev represented the petitioner, while Renjit George, Senior Public Prosecutor, appeared on behalf of the respondents.

Background

The case originated from allegations that one of the accused had developed a relationship with the complainant on the promise of marriage and had compelled her to engage in sexual relations despite her initial resistance. The complainant began residing with him in a rented house until he reneged on his promise. It was further alleged that the second accused, his brother, had threatened her to discontinue her relationship with the first accused.

The defence contended that the complainant was already in a subsisting marriage, and therefore the allegation of rape on the false promise of marriage was unsustainable. They further argued that the threats attributed to the second accused were doubtful, and in any event, the bar under Section 18 of the SC/ST Act was not attracted.

Court’s Observations

Relying on Mahesh Damu Khare v. State of Maharashtra, the Kerala High Court remarked that “…the decision of the Supreme Court in Mahesh Damu Khare (supra) and the decision of this Court in Hiran Das Murali (supra) indicate that where a relationship between two individuals lasts for a considerably long period and there is a break-up in the relationship after some time, the same cannot be a ground to allege rape on the false promise of marriage.”

Further, the Bench drew attention to the principle laid down in Anil Kumar v. The State of Kerala, emphasising that allegations of rape based on a false promise of marriage cannot stand where one of the parties is already in a subsisting marriage. Applying this standard to the case at hand, the Bench noted that “...it is clear from the judgment of this Court in Anil Kumar (supra) that where one of the parties to a relationship is in a subsisting marriage, there cannot be an allegation of rape on the false promise of marriage. Considering all the aforesaid facts, I am prima facie convinced that the 1st accused has made out a case that he cannot be accused of having committed an offence punishable under Section 376(2)(n) of the IPC."

The Bench further underscored that Section 3(2)(v) of the SC/ST Act applies only when the substantive offence is punishable with a term of ten years or more. While making this observation, the bench highlighted that “in the facts of this case, the prima facie conclusion that the appellants have not committed any offence under Section 376(2)(n) and Section 506 IPC automatically leads to a conclusion that the appellants have not committed an offence punishable under Section 3(2)(v) of the SC/ST Act.”

The allegation against the second accused, too, was considered doubtful, as the alleged threatening calls coincided with a time when the complainant and first accused were living together as husband and wife. The Court noted that “there is some merit in the contention of the learned counsel for the 2nd accused that these calls could not have been made for the purposes of threatening the de facto complainant, especially when, even going by the First Information Statement, these calls relate to a period when there was a healthy relationship between the 1st accused and de facto complainant. In such circumstances, it is quite possible that the 1st accused was using the telephone of the 2nd accused to talk to the de facto complainant. If this is the situation, it is at least doubtful as to whether the alleged offence under Section 506 IPC has been committed by the appellants.”

Conclusion

“Taking into consideration the law laid down by the Supreme Court in Prathvi Raj Chauhan (supra), as reiterated in Kiran (supra), I am convinced that the appellants are entitled to anticipatory bail, as for reasons already indicated, they have made out a prima facie that they have committed no offence under the provisions of the SC/ST Act”, the Court concluded.

Allowing the appeals, the Kerala High Court set aside the Special Judge’s order and directed that the appellants be released on anticipatory bail subject to conditions.

Cause Title: Rahul M R Vs State Of Kerala & Others (Neutral Citation: 2025:KER:70098)

Appearances

Petitioners: Advocates S. Rajeev, V. Vinay, Dipa V., N.P. Asha and others

Respondents: Advocate George Sebastian with Renjit George, Senior Public Prosecutor, and others

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