Andhra Pradesh High Court - Amravati
Pachipala Prabhakara Rao, vs State Of Ap on 11 December, 2019
Author: Cheekati Manavendranath Roy
Bench: Cheekati Manavendranath Roy
HONOURABLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
Criminal Petition No.5736 of 2019
Order:
This petition is filed under Section 438 of Cr.P.C to
enlarge the petitioner on bail in the event of his arrest.
2. The petitioner is the sole accused in Crime
No.24/2019 of Elwinpeta Police Station, Vizianagaram
District.
3. The alleged offences against the petitioner are under
Sections 420, 354, 354(C), 354(D), 496 and 498-A and 509 of
IPC and under Section 3(1)(r)(s), 3(2)(v)(a) of the Scheduled
Castes and the Scheduled Tribes (Prevention of Atrocities)
Act, 1989 (hereinafter called as 'the SC/ST Act') and under
Section 67 of the Information Technology Act, 2006.
4. It is the case of the prosecution that the de facto
complainant is an employee working as a Woman Police
Constable. She has undergone training at Police Training
College (hereinafter called as 'PTC'), Ongole, in the year 2009.
At that time, the petitioner was working as a Drill
Instructor in PTC, Ongole, in Reserve Sub Inspector status.
The petitioner has gradually developed acquaintance with the
de facto complainant in PTC. On account of the said
acquaintance, there were exchange of phone calls between
both of them. After some time, the petitioner proposed to the
de facto complainant that he is in love with her and that he
intends to marry her after he is promoted as Civil Sub
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crlp_5736_2019 Inspector. The de facto complainant accepted the said proposal. So, both of them started talking to each other regularly.
5. After completion of the training, the de facto complainant joined as a Constable at Parvathipuram Town Police Station. The petitioner used to visit her where she is working and both of them used to visit several places like Araku, Srikalahasthi and Hyderabad etc. At that time, the petitioner insisted the de facto complainant to indulge in sexual intercourse with him. Initially she refused the said request and stated that she is not willing to participate in any sexual intercourse with him before marriage. However, the petitioner lured and induced her to have sexual intercourse with him stating that they are going to marry very soon and thereby had sexual intercourse with her on the said promise to marry her.
6. Thereafter, the petitioner joined as Civil Sub Inspector, Guntur. He continued to take the de facto complainant to various places and have sexual intercourse with her. However, he has been postponing the marriage on one pretext or the other. Finally, after lot of persuasion and when the de facto complainant insisted the petitioner for marriage, he married her on 12-4-2017 at Sri Venkateswara Kodanda Swamy Vari Temple, Thotapalli Village of Gudugubelli Mandal. After marriage, the petitioner spent only two days with the de facto complainant and thereafter 3 CMR, J.
crlp_5736_2019 left her company stating that he would come again after few days and take her to his matrimonial home. However, he did not take her to his matrimonial home and he has been postponing the same on one pretext or the other. When the de facto complainant questioned the conduct of the petitioner in this regard, he finally disclosed that he was already married and he only thought of having sexual relationship with her. But on the pressure given by the de facto complainant and her parents that he married her as he has no option at that time and he also tried to persuade the de facto complainant stating that it is a common affair in the Police Department and that if she needs any money that he would give money to her. He also stated that he will not accept the de facto complainant as his wife.
7. At that time, the de facto complainant realized that she was cheated by the petitioner. She informed the same to her family members. Her family members questioned him and also informed him that they would complain about his conduct to his higher officials. The petitioner replied that he is the Sub Inspector of Police and no one will accept and entertain any such complaint against him as he got influence in the Department. He also threatened the de facto complainant that he has taken the photos of the de facto complainant without her knowledge when they were together and that he would show the same to his friends and batchmates and also send the photographs to all the men in 4 CMR, J.
crlp_5736_2019 the police station on their WhatsApp and threatened that if the said photographs are disseminated in the above manner that her family members would commit suicide due to loss of reputation.
8. On 10-02-2019 while she was in duty at the outpost of Parvathipuram Railway Station, she was informed by the Head Constable D.Ratna Kumar that the petitioner has sent photos of the de facto complainant on his WhatsApp. When she questioned the petitioner, he stated that as she is trying to complain against him to his higher officials that he has decided to share the photographs to his friends and batchmates and stated that he would see that she cannot raise her head in the society and that she and her family members would commit suicide. He also stated that he has pretended that he is in love with her and would marry her only to satisfy his carnal lust. The petitioner also abused her in the name of her caste stating that "S.C. PYDI LAMJA" and insulted her in the name of her caste in the presence of K.Anasuya and her sister P.Swathi.
9. Therefore, the de facto complainant in the said circumstances, having no other go, lodged report with the Police to take action against the petitioner. The said report was registered as a case in Crime No.24/2019 for the aforesaid offences.
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10. Heard Sri N.Ashwani Kumar, learned counsel for the petitioner and the learned Additional Public Prosecutor for the respondent/State.
11. The learned counsel for the petitioner would submit that even as per the allegations in the FIR, it is a case of consensual sexual intercourse and as such no case of cheating is made out from the facts of the case. Even otherwise, as the FIR discloses that the petitioner married the de facto complainant on 12-4-2017 that no case of cheating is made out on the said ground also. In fact, the petitioner never made any such promise to the de facto complainant to marry her and he never had sexual intercourse with her and he also did not marry her. He would submit that the petitioner was already married and he got children and as such the question of marrying the de facto complainant again by him does not arise at all. It is a false allegation made by the de facto complainant. He would also contend that the provisions of the ST/ST Act are also not attracted as the allegation that the petitioner abused the de facto complainant in the name of her caste and insulted her, within the public view is absent in this case. So, no case is constituted under any of the Sections registered under the ST/ST Act by the prosecution. So, there is no bar to entertain this petition under Section 438 of Cr.P.C and Section 18 of the SC/ST Act will not come in the way of entertaining this petition. In support of the said contention, he relied on the judgment of 6 CMR, J.
crlp_5736_2019 the Apex Court in Union of India v. State of Maharashtra1, Swaran Singh v. State Through Standing Counsel2, Daya Bhatnagar v. State3 and Vipul Maganbhai Patel v. State of Gujarat4.
12. The learned Additional Public Prosecutor vehemently opposed the criminal petition. He would submit that the petition filed by the petitioner under Section 482 of Cr.P.C to quash the FIR in Crime No.24/2019 was dismissed by this Court. Therefore, it is evident that this Court found that prima facie case is made out against the petitioner herein for the offences registered against him in Crime No.24/2019. So, it is no more open to the petitioner to contend that no offence was constituted under the SC/ST Act from the facts of the case and the allegations made against the petitioner in the FIR. Therefore, in view of the finding of this Court that the allegations set out in the FIR prima facie constitute an offence under the SC/ST Act, the bar contained in Section 18 of the SC/ST Act would apply in full force to the present facts of the case. So, this petition filed under Section 438 of Cr.P.C for grant of anticipatory bail, in the facts and circumstances of the case, is not maintainable and it is to be dismissed in limine on the ground of its maintainability.
13. He would further submit that even otherwise, the facts of the case go to show the manner in which the 1 2019 SCC Online SC 1279 2 (2008) 8 SCC 435 3 109 (2004) DLT 915 4 2019 SCC OnLine Guj 832 7 CMR, J.
crlp_5736_2019 petitioner has cheated the de facto complainant by suppressing the fact that he is a married man and that he got children. He contends that he pretended that he is in love with her and he would marry her and thereby induced her to have sexual intercourse with him. Thereafter married her when she has pressurized him without disclosing that he is a married man. So, these facts clearly show that the petitioner had with a male fide intention from the inception trapped the de facto complainant and after satisfying his carnal lust, he has left her to her fate. The fact that he even went to the extent of sending the intimate photographs of the de facto complainant in WhatsApp group to the employees of the Police Department aggravates the nature of the offence. So, the facts of the case clearly constitute the offences which were registered against him at the time of registering the FIR. So, having regard to the facts and circumstances of the case and in view of the gravity of the offences, he would submit that it is not a fit case to grant anticipatory bail to the petitioner and thereby prayed for dismissal of the petition.
14. Perused the record.
15. No doubt, it is settled proposition of law that when the facts of the case or the allegations set out in the FIR even if they are taken at their face value as true, if they do not prima facie make out any case or constitute any offence under the provisions of the SC/ST Act, then despite the bar contained in Section 18 of the SC/ST Act, the Courts can 8 CMR, J.
crlp_5736_2019 entertain a petition under Section 438 of Cr.P.C for grant of anticipatory bail. In fact, the three-Judge Bench of the Apex Court in the judgment relied on by the learned counsel for the petitioner in Union of India v. State of Maharashtra (1 supra) held that there is no absolute bar against grant of anticipatory bail in cases under the SC/ST Act if no prima facie case is made out or on judicial scrutiny the complaint is found to be prima facie mala fide.
16. In the instant case, the petitioner has filed a petition under Section 482 of Cr.P.C to quash the FIR in Crime No.24/2019. This Court by its order dated 04-12-2019, having found that the facts of the case prima facie make out a case and constitute an offence under the SC/ST Act and for the other reasons as discussed in the said order, dismissed the said petition under Section 482 of Cr.P.C. Therefore, upon considering the facts and circumstances of the case, this Court already recorded a finding in the said order passed in Crl.P. No.2948 of 2019 that the facts of the case prima facie constitute an offence under the SC/ST Act.
17. The contention of the learned counsel for the petitioner that since the alleged abuse made by the petitioner in the name of the caste of the de facto complainant and insulting her in the name of her caste is not within the public view that no offence is constituted under the SC/ST Act is devoid of any merit. It is clearly stated that in the FIR that the petitioner abused the de facto complainant in the name of 9 CMR, J.
crlp_5736_2019 her caste stating that "S.C. PYDI LAMJA" and that he insulted her in the name of her caste in the presence of K.Anasuya and her sister Swathi. Therefore, it cannot be said that she was not insulted in the name of her caste within the public view. Even in the decision relied on by the learned counsel for the petitioner in Swaran Singh's case (2 supra), it is clearly stated that calling a member of Scheduled Caste as "chaman" with intent to insult or humiliate him in a place within the public view is certainly an offence under Section 3(1)(x) of the SC/ST Act and whether there was intent to insult or humiliate by using the said word will depend on the context in which it was used. Therefore, this has to be decided in the final adjudication of the case after trial of the case is completed if ultimately charge-sheet is filed against the petitioner after completion of investigation by the Police. The other judgments relied on by the petitioner cited supra are distinguishable on facts. So, they are not applicable to the present facts of the case.
18. Since the facts of the case and the allegations set out in the FIR prima facie constitute an offence under the SC/ST Act, this Court has no hesitation to hold that the bar engrafted under Section 18 of the SC/ST Act clearly attracts and this petition under Section 438 of Cr.P.C is not maintainable under law. So, on the sole the ground the present petition is liable to be dismissed. 10
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19. Even otherwise, considering the grave allegations made in the FIR which clearly show that the petitioner has very intelligently by suppressing his earlier marriage had pretended as if he is in love with the de facto complainant and would marry her and thereby trapped her and lured her and induced her to have sexual intercourse with him inspite of the fact that she initially resisted him and ultimately succeeded in persuading her to participate in sexual intercourse with him by making her believe that he would marry her very soon. Thereafter, he avoided her and started postponing the marriage on one pretext or the other.
20. These facts speak volumes regarding the manner in which the petitioner after unleashing his sexual passions and after satisfying his carnal lust in such a deceitful manner cheated the de facto complainant. When she questioned his conduct when he is evading to marry her, to overcome the said situation, he then went to the extent of marrying her by suppressing his previous marriage which is a clear offence punishable under Section 498 of IPC. The facts of the case further show that the petitioner even went to the extent of sending the intimate photographs of the de facto complainant which were taken by him clandestinely, on WhatsApp to the employees of the Police Department. So, all these facts show that the petitioner has indulged in commission of grave offences punishable under Sections 354C and 496 of IPC and under the SC/ST Act and under the Right to Information Act. 11
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crlp_5736_2019 So, the accusation made against the petitioner in this regard is prima facie well founded. Therefore, in the said facts and circumstances of the case and having regard to the seriousness of the allegations made against him, this Court is of the considered view that this is not a fit case where anticipatory bail can be granted to the petitioner.
21. Therefore, the petition is dismissed.
_________________________________________ CHEEKATI MANAVENDRANATH ROY, J.
11th December, 2019.
Ak 12 CMR, J.
crlp_5736_2019 HONOURABLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY Criminal Petition No.5736 of 2019 (For Orders) 11th December, 2019.
(Ak)