No Consent For Sexual Act When Victim Was Semi Conscious: Kerala High Court Refuses Anticipatory Bail To Accused Under SC/ST Act

In this backdrop the bench held that a prima facie case under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereafter, the Act) is made out, barring anticipatory bail.

It therefore dismissed the accused person's appeal stating,

“In this case the specific case of the defacto complainant is that she was subjected to rape after giving her a cake and a bottle of water by the accused and later she felt that her eye sight was diminishing and when she was at a semi conscious stage. In such a case, it cannot be held that the overt act alleged by the defacto complainant is one arose out of consent. Therefore, the prosecution allegations are well made out prima facie and as such anticipatory bail cannot be granted in view of the specific bar under Section 18 and 18A of the SC/ST Act.”

The appellant was booked for offences under Sections 354A (sexual harassment), 506 (criminal intimidation) and 376(2)(n) (committing rape repeatedly on the same woman) IPC. As the victim belonged to the Scheduled Caste community, he was also charged under Section 3(2)(v) for Punishment for offences of atrocities under the Act.

The appeal was filed under Section 14A of the Act against the order of the Special Court rejecting the anticipatory bail application of the appellant. The bail was rejected under the bar created vide Section 18 and 18A of the Act.

Counsel for the appellant submitted that no prima facie case was made out against him and hence bar for grant of anticipatory bail under SC/ST Act won't be attracted.

The Court reiterated the Apex Court decision in Prathvi Raj Chauhan v Union of India & Ors (2020) for stating that in cases where prima facie case was not made out, there was no bar in giving anticipatory bail; and if a prima facie case made out under the Act, giving anticipatory bail was barred.

In the instant case, the Court noted that a prima facie case was made out against the appellant because there was no consent of the victim to engage in the sexual act. The court relied upon the records and evidence produced to state thus:

“Later, the accused forcefully given a cake to the defacto complainant and given a bottle of water. Then the defacto complainant felt that her eye sight was diminishing and she reached a semi unconscious stage. Thereafter, the accused brought her to the second or third floor of the college and subjected her to rape.”

Court found that even going by the telephonic conversation between the appellant and the victim, the offence of sexual abuse could be foreseen.

It thus upheld the order of the special court rejecting the anticipatory bail of the appellant.

Case Title: Deepak K. Balakrishnan v State of Kerala

Citation: 2023 LiveLaw (Ker) 379

Case Number: CRL.A NO. 282 OF 2023

Counsel for the appellant: Advocates S.Rajeev, V.Vinay, M.S.Aneer, Sarath K.P., Prerith Philip Joseph and Anilkumar C.R. Public Prosecutor: Advocate M P Prasanth

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