Haris vs State of Kerala

K.T. Sankaran, J.—This is an application for anticipatory bail u/s 438 of the Code of Criminal Procedure. The Petitioner is the accused in Crime No. 357 of 2011 of Valappilshala Police Station.

The offences alleged against the Petitioner are u/s 376 of the Indian Penal Code and Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.

The prosecution case is the following: The de facto complainant and the accused were working in Kuwait. The de facto complainant belongs to a Scheduled Caste. The accused gave promise to the de facto complainant that he would marry her and had sexual contact with her. The de facto complainant became pregnant and she delivered of a child. After coming to India, the de facto complainant lodged a petition before the police.

The learned Counsel for the Petitioner submitted that the investigating officer issued a notice to the Petitioner to appear for taking blood samples for DNA test. It is submitted that the Petitioner is prepared to co-operate with the investigation and he is also prepared to give blood samples for DNA test. The counsel submitted that the Petitioner may not be arrested till it is established that there is prima facie case against him, by adopting some scientific method.

Learned Public Prosecutor submitted that in a case of this nature anticipatory bail cannot be granted. He also submitted that Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is a bar to entertain an application for anticipatory bail. At the same time, it is submitted by the learned Public Prosecutor on instructions that since the occurrence took place in a foreign country, evidence of sexual harassment could not be collected and scientific examinations are being made during investigation. It is also submitted that a notice was issued to the Petitioner to appear for giving blood samples for DNA test.

In the peculiar facts and circumstances of the case, I am of the view that the Petitioner should be arrested only after prima facie satisfaction of the truth of the allegations levelled against him. The Petitioner shall appear before the investigating officer and co-operate with the investigation. The Petitioner shall also provide the blood samples for DNA test or any other test. The Petitioner shall also appear before the investigating officer on all Mondays until further orders. The Petitioner shall surrender his passport before the investigating officer. However, the Petitioner will be arrested only after the investigating officer is prima facie satisfied on the basis of the evidence that the Petitioner has committed the offence. It is made clear that this order is not an order prohibiting arrest of the Petitioner. After sufficient evidence is collected it is not a bar for arresting the Petitioner.

With the above observations, the Bail Application is disposed of. The Petitioner shall produce a copy of this order before the investigating officer.