Abdul Hameed and others v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 12TH DAY OF JULY 2019 / 21ST ASHADHA, 1941** ## **Bail Appl..No.4958 of 2019** **CRIME NO.963/2019 OF Harippad Police Station , Alappuzha** ## **PETITIONERS/ACCUSED:** **1 ABDUL HAMEED AGED 78 YEARS S/O. MAIDEENKUTTY, RESIDING AT KOCHUTHARA KIZHAKKATHIL, KARUVATTA P.O, ALAPPUZHA DISTRICT. 2 ASEEM, AGED 42 YEARS S/O. HAMEED KUNJU, RESIDING AT THONDANKANDATHIL , KARUVATTA NORTH, KARUVATTA P.O, ALAPPUZHA DISTRICT. 3 MUHAMMED NIZAR, AGED 52 YEARS S/O. ABDUL HAMEED, RESIDING AT KOCHUTHARA KIZHAKKATHIL, KARUVATTA NORTH, KARUVATTA P.O, ALAPPUZHA DISTRICT, NOW RESIDING AT KAREEKKOTTARAM, KARUVATTA NORTH, KARUVATTA P.O, ALAPPUZHA DISTRICT.** **BY ADVS. SRI.T.MADHU SMT.C.R.SARADAMANI SRI.B.K.RAJAGOPAL** ## **RESPONDENT/STATE:** **THE STATE OF KERALA THROUGH THE STATION HOUSE OFFICER, HARIPPAD POLICE STATION, ALAPPUZHA DISTRICT, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031** **SRI.AMJAD ALI, PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 12.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Bail Appl..No.4958 of 2019** **2** ## **ALEXANDER THOMAS, J.** ## **=========================== B.A.No.4958 of 2019** **===========================** Dated this the 12[th] day of July, 2019 ## **O R D E R** The petitioners herein has been arrayed as accused Nos. 1 to 3 in Annexure A1 Crime No.963/2019 of Harippad Police Station, which has been registered for offences punishable under Sections 323, 324, 354, 427, 447 read with Section 34 of the IPC and Section 3(1)(r)(s) and 3(2)(v)(a) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989. 2. The prosecution case in short is that the accused persons had prior animosity against the defacto complainant and others as the defacto complainant had destroyed the coconut trees standing in the property of the accused and that on 13/06/2019 at 8.45.a.m., the accused persons on account of the said animosity had trespassed into the courtyard of the defacto complainant’s house and assaulted him by beating with hands and on seeing this, his wife rushed to the place and the accused had also assaulted her by pushing her down and A2 had attempted to cause injury to the defacto complainant by using a knife and that the accused had also caused damage to the window **Bail Appl..No.4958 of 2019** **3** panes, doors and household utensils in the house of the decacto complainant, thus causing a loss of Rs.5,000/- and thereby the accused persons have committed the above said offences. 3. The petitioners would urge that the above said allegations have been falsely foisted on the petitioners and that the defacto complainant is in possession of certain landed properties very near to the property owned by the petitioners and others and there was an attempt made by the defacto complainant and others to form a road through the property of the petitioners and others by destroying the coconut trees standing in the properties. Thereupon, the second petitioner and others had filed Annexure-A2 O.S.No.307/2017 before the Munsiff’s court, Harippad seeking a decree of permanent prohibitory injunction restraining the defendants therein which includes the defacto complainant herein as the seventh defendant, from forming road through the plaint schedule properties by destroying the coconut and other trees and also from causing any wastage or damage to the plaint schedule properties. Along with Annexure-A2 suit, interim injunction application as per Annexure-A3 was also filed therein and the learned Munsiff as per Annexure-A4 order dated 4/11/2017 had granted interim order of injunction restraining the defendants in the above suit from trespassing into the **Bail Appl..No.4958 of 2019** **4** plaint schedule property and from committing any waste in the plaint schedule property etc. Later in annexure-A2 suit the plaintiffs therein filed an Interlocutory Application on 4/11/2017 to appoint an Advocate Commissioner to conduct local inspection of the plaint schedule properties and to report the lie and nature of the said properties and other valuables and the said application was also allowed by the learned Munsiff and one Sri. D.Biju was appointed as the Advocate Commissioner to conduct local inspection and to make a report to the Trial Court. Accordingly the Advocate Commissioner had submitted Annexure-A5 commission report dated 7/12/2017 after conducting the local inspection. Further that in the above said incident which happened on 30/10/2017 which resulted in the filing of O.S.No.307/2017, the defendants in the said suit had trespassed into the property of the plaintiff and destroyed the coconut trees by injecting poison and the first petitioner has also approached the Sub Inspector of Police, Harippad and filed a complaint. The police did not register any crime. The first petitioner after complying with the statutory requirements in terms of the directions issued by the Supreme Court in the case in _**Priyanke Srivastava v. State OF UP**_ [ AIR 2015 (SC) 1758]=(2015) 6 SCC 287] had approached the learned Judicial First Class Magistrate's Court-I, Harippad by filing **Bail Appl..No.4958 of 2019** **5** Annexure-A6 private criminal complaint under Sections 190 and 200 Cr.P.C which was taken on file by the learned Magistrate as Criminal Miscellaneous Petition No.9741/2017 and the learned Magistrate had also taken cognizance of the offences punishable under Sections 447, 427 read with Section 34 of the IPC. That an identical complaint as in Annexure-A6 was also filed by the 2[nd] petitioner herein based on which learned Magistrate had taken cognizance of the offences punishable under Sections 447, 427 read with section 34 of the IPC and the case is now pending as C.C.No.286/2019 as referred to in Annexure-A7. 4. Further it is pointed out that in flagrant violation of Annexure-A4 order of interim injunction granted by the learned Munsiff, the defendants in the said suit have committed trespass into the plaint schedule property in the above suit on 15/02/2018 at 10.am. and committed waste in the plaint schedule property and thereupon the 2[nd] petitioner has approached the Munsiff’s Court by filing Annexure- A8 application under Order XXXVIII Rule 2A of the CPC praying to prosecute the defendants in the said suit, that they have violated the order of interim injunction. Annexure-A8 application was taken on file by the learned Munsiff as I.A.No.485/2018 along with Annexure A8 application. The plaintiff in **Bail Appl..No.4958 of 2019** **6** the said suit has also filed Annexure-A9 I.A.No.486/2018 praying to appoint an Advocate Commissioner to conduct local inspection and to make report as to whether the defendants in the above suit have committed waste in the plaint schedule property in violation of the order of interim injunction granted as per Annexure-A4 by the learned Munsiff. The said application has been allowed by the learned Munsiff and one Advocate Sri.G.AnilKumar, was appointed as the Advocate Commissioner and the said learned Advocate Commissioner after conducting local inspection, has filled AnnexureA9 report. That later on 13/06/2019 the defendants in the said suit again violated the order of interim injunction by cutting and removing the coconut trees by using machines and regarding the same, the petitioners have filed Annexure-A10 I.A.No.1040/2019 in the above said suit O.S.No.307/2017 on the files of the Munsiff’s Court, Harippad praying to prosecute the defendants in the above suit by invoking Order XXXIX Rule 2A of the CPC. It is in the background in these factual developments which clearly shows blatant attempts made by the defendants in the above said suit including the defacto complainant herein repeatedly violating even judicial orders passed in the Civil Court, the defcato complainant has ventured to trigger the registration of the instant crime on 14.06.2019 **Bail Appl..No.4958 of 2019** **7** as per Annexure-A1 and accordingly it is very strongly and vehemently argued by Sri.T.Madhu, the learned counsel appearing for the petitioners/accused that the above impugned criminal proceedings are vitiated by malafidies and ulterior considerations and has been initiated at the malicious and evil desire of the defacto complainant to wriggle out of the various civil and criminal liabilities already incurred by them in respect of the above said incidents narrated herein above. 5. It is strongly urged by Sri.T.Madhu, learned counsel for the petitioners/accused that the petitioners have a very strong and probable case that the impugned criminal proceedings are on the basis of Annexure-A1 crime has been initiated for malafide and ulterior considerations and that therefore it cannot be even contended for a moment that there is probably true and bonafide case set up by the defacto complainant in Annexure-A1 crime and that therefore the bar under Section 18 and 18 A(2) of the SC/ST (POA Act 1989) as amended, is not applicable in the instant case. 6. The learned Prosecutor has opposed the plea for anticipatory bail and has submitted that in view of the above said statutory bar engrafted by the legislature in the provisions of the SC/ST (POA Act), the plea for anticipatory bail is not maintainable . **Bail Appl..No.4958 of 2019** **8** 7. After hearing both sides and after carefully evaluating the above said facts and circumstances cogently pleaded and established by the petitioners on the basis of the unimpeachable documentary materials and that too, most of which are materials pertaining to applications filed before the Civil Court or applications made before the competent Criminal Court etc, this Court is constrained to take the view that the petitioners have been successful enough to establish a strong and probable case that the bar under provisions of SC/ST (POA Act) in the matter of the applicability of Section 432 Cr.P.C., cannot be said to have any legal efficacy in its application to the facts and circumstances of this case. The Apex Court has held in various decisions as in _**Subhash Kashinath Mahajan v. State of Maharashtra**_ [2018 (6) SCC 454] = [2018 (2) KHC 207] that where the allegations set up in the FIR for the offence under the provisions of the SC/ST (PAO Act), are found to be motivated or false, then the bar as against the applicability Section 438 of the Cr.P.C. will not apply and that the Criminal Court concerned has the jurisdictional competence to consider the plea of anticipatory bail in the interest of justice. Of course the learned Public Prosecutor has pointed out that the Parliament has subsequently introduced amended provision as per Section 18A in the above said SC/S (POA Act) with effect from **Bail Appl..No.4958 of 2019** **9** 20.08.2018 whereby sub-section 2 thereof stipulate that the provisions of the Section 438 of the court shall not apply to the case under the said Act notwithstanding any judgment or order for any direction of this Court. After hearing both sides this court of the view that if an applicant accused is able to successfully establish before the criminal Court which is otherwise competent to consider the plea for anticipatory bail that there is no _prima facie_ and bonafide case borne out in the said FIR for the above said offences under the SC/ST Act (POA Act) and that the allegations therein are found to be false and motivated then it goes without saying that it cannot be said to be a case under the said Act as envisaged in sub-section 2 of Section 18A as well as section 18 of the above said Act, and in such situation the so called bar will disappear and the competent Court like the Sessions Court and the High Court as the case may be will have jurisdictional competence to entertain a plea for grant of pre-arrest bail or anticipatory bail. 8. In that view of the matter it is ordered that in the event of the petitioners being arrested in relation to the above said crime then he shall be released on bail on their separately executing bonds for Rs.40,000/-each and on separately furnishing two solvent sureties each for the like sum to the satisfaction of the investigating officer **Bail Appl..No.4958 of 2019** **10** concerned. 9. However, the grant of bail will be subject to the following conditions: _(a) Petitioners shall not involve in any criminal offences of similar nature._ _(b) Petitioners shall fully co-operate with the investigation._ _(c) Petitioners shall report before the Investigating Officer as and when required in that connection._ _(d) Petitioners shall not influence witness or shall not tamper or attempt to tamper evidence in any manner, whatsoever._ If the petitioners violate all or any of the bail conditions, then the jurisdictional court concerned will stand hereby authorised, to consider the plea for cancellation of bail, if required, in accordance with law. 10. Before parting with this case it is made clear and clarified that the above said findings and orders made by this Court are only for the limited context of the issues posed before this Court as to whether or not the bar under Section18A(2) and Section 18 of the SC/ST (POA Act) would apply or as to whether this Court has the jurisdictional competence to entertain the plea for anticipatory bail under Section 438 Cr.PC. It is further made clear that the rival contentions of both sides will have to be decided in appropriate **Bail Appl..No.4958 of 2019** **11** proceedings at the appropriate stage untrammelled and uninfluenced in any manner by the above said observations and orders made by this Court herein above. With these observations and directions, the above Bail Application will stand disposed of. Sd/- nak **ALEXANDER THOMAS JUDGE**