SC/ST Act Not Attracted When Offence Not Done With Intention That Victim Belongs To A Particular Caste: Andhra Pradesh High Court

The bench held that when the offence alleged is not done with an intention that the victim belongs to a particular case, then the provisions of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act will not get attracted.

The de facto complainant, a law graduate, and the Petitioner, a CISF constable, had been in a relationship for the last six years. The complainant submitted that during the Dussehra vacation in 2019, the petitioner came to her room when her friends were absent and, after promising to marry her, had sexual intercourse with her. Later, when she followed up with the petitioner about the promise, he asked her to wait for six months. More than a year later, there was no response from the petitioner.

The complainant alleged that the accused belongs to a washerman community and refused to marry her as his parents were not agreeable to the marriage on account of the complainant belonging to a different caste, i.e., SC community.

The complaint was lodged on 15^th May, 2022, nearly after three years of alleged incident. The petitioner had been in judicial custody since 19^th May, 2022.

The counsel for the petitioner submitted that, as seen from the FIR, there were no prima facie ingredients to attract the said penal provisions against the petitioner. He also stated that, going by the complaint, no specific date had been mentioned as to the occurrence of the offence. He submitted that the de facto complainant was above eighteen years of age – and also a law graduate – at the time of the alleged offence. He retained that the incident in 2019 was one of consensual sex and did not attract Section 376, IPC. He pointed out that the entire investigation had been completed and prayed the Court to grant bail.

The Special Assistant Public Prosecutor Sri S.V. Sainath submitted that consent on the ground of fraud did not amount to consensual sex. He urged that the petitioner made the complainant believe that he would marry her before having sexual intercourse with her, so, the consent was fraudulently induced.

The Court referred to Dr.Dhruvaram Muralidhar Sonar's case, a case relied upon by the petitioner. The petitioner in this case had filed a petition under Section 482 of Cr.P.C., to quash the proceedings in an FIR registered for the offences under Sections 376(2)(b), 420 read with Section 34 of the IPC and Section 3(1)(x) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act. The petitioner in that case had maintained a physical relationship with the complainant, but had failed to marry her as he had promised. The Supreme Court quashed this case:

"Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the later falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the Accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape…. The acknowledged consensual physical relationship between the parties would not constitute an offence Under Section 376 of the Indian Penal Code."

The Court also referred to Shivashankar alias Shiva's case, in which it was held that:

"In the facts and circumstances of the present case, it is difficult to sustain the charges levelled against the appellant who may have possibly, made a false promise of marriage to the complainant. It is, however, difficult to hold sexual intercourse in the course of a relationship which has continued for eight years, as 'rape' especially in the face of the complainant's own allegation that they lived together as man and wife."

The Court found that a perusal of the complainant showed that the alleged incident was consensual and hence may not attract Section 376 of the IPC. The Court also pointed out that the offence under Section 420 of the IPC is punishable with an imprisonment of below three years. The investigation had almost been completed and the petitioner's presence was not required for custodial interrogation. As far as the offences under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act are concerned, the stated that "the sexual intercourse was done by the petitioner, according to complaint, promising to marry her, but not with an intention that she belonged to SC & ST caste." The Court granted bail to the petitioner, allowing the petition.

Citation: 2022 LiveLaw (AP) 91 

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