Abhilash A.S. v Inspector of Police Poovar Police Station, Thiruvananthapuram & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **FRIDAY, THE 15[TH] DAY OF DECEMBER 2023/ 24TH AGRAHAYANA, 1945** **CRL.A NO. 1796 OF 2023** **AGAINST THE ORDER DATED 13.11.2023 IN CRMC 5/2023 OF SPECIAL JUDGE COURT FOR TRIAL OF SC/ST CASES,** ## **THIRUVANANTHAPURAM** **CRIME NO.1224/2023 OF POOVAR POLICE STATION,** ## **THIRUVANANTHAPURAM** **APPELLANT/1ST ACCUSED:** **ABHILASH A.S., AGED 32 YEARS, S/O APPU, VARUTHATTU PUTHEVEEDU, PURUTHIVILA, THIRUPURAM, THIRUVANANTHAPURAM, PIN – 695133.** **BY ADVS. BOBY M.SEKHAR RAKHI RAVIKUMAR** ## **RESPONDENTS/COUNTER PETITIONERS:** - **1 INSPECTOR OF POLICE POOVAR POLICE STATION THIRUVANANTHAPURAM, PIN – 682031.** - **2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN – 682031.** **SMT MAYA M.N., PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 13.12.2023, THE COURT ON 15.12.2023 DELIVERED THE FOLLOWING:** 2 Crl.Appeal No.1796 of 2023 ## **P.G. AJITHKUMAR, J.** **----------------------------------------------------------Crl.Appeal No.1796 of 2023 ----------------------------------------------------------Dated this the 15[th] day of December, 2023** ## **JUDGMENT** This is an appeal filed under Section 14A of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (SC/ST Act). The appellant is the 1[st] accused in crime No.1224 of 2023 of Poovar Police Station. The said crime was registered alleging offences punishable under Sections 341, 294(b) and 323 read with Section 34 of the Indian Penal Code, 1860 (IPC) and Section 3(1)(r) and 3(1)(s) of the SC/ST Act. The appellants filed Crl.M.C.No.5 of 2023 seeking anticipatory bail. The Special Court for trial of offences under SC/ST (POA) Act, Nedumangad dismissed that petition. Hence this appeal. 2. Despite giving notice through the Station House Officer, Poovar Police Station, the de facto complainant did not choose to appear before this Court. Heard the learned counsel for the appellant and the learned Public Prosecutor. 3 Crl.Appeal No.1796 of 2023 3. The allegations based on which the crime was registered are that at about 2.30 pm on 22.09.2023 the appellant along with the 2[nd] accused manhandled the de facto complainant and abused him calling his caste name, who belongs to the Scheduled Caste. He was working as a driver in the vehicle of a Pastor, Devadanam. The appellant and his coaccused were nurturing enmity on that. Therefore, they on the said day, attacked the de facto complainant by kicking him and fisting at his nose. He sustained a bleeding injury at his nostrils. 4. The Special Court, after hearing the learned counsel for the appellant and also the Public Prosecutor, took the view that the bar under Section 18 of the SC/ST Act would attract in the facts and circumstances of this case. The learned counsel for the appellant would submit that owing to the delay in lodging a complaint and also in the nature of the allegations, it is obvious that the case is a foisted one and therefore the bar under Section 18 of the SC/ST Act cannot have application. The learned Public Prosecutor, on the other 4 Crl.Appeal No.1796 of 2023 hand, would submit that the delay was occasioned since there was a conciliation talk and when the de facto complainant took treatment following his assault by the appellant and his co-accused, it cannot be said that the case is a foisted one. 5. Incident had occurred on 22.09.2023. The crime was registered on 16.10.2023. On a perusal of the case diary, it is seen that the de facto complainant went to Taluk Headquarters Hospital, Parassala, on 23.09.2023 at 1.46 p.m. No serious external injury was noticed by the Doctor, who examined the de facto complainant. The allegations against the appellant and his co-accused are to be appreciated in the aforementioned circumstances. 6. In **Vilas Pandurang Pawar v. State of Maharashtra [(2012) 8 SCC 795]** , the Apex Court held that Section 18 of the SC/ST Act creates a bar for invoking Section 438 of the Code. However, a duty is cast on the court to verify the averments in the complaint and to find out whether an offence under Section 3(1) of the SC/ST Act has been _prima facie_ made out. In other words, if there is a 5 Crl.Appeal No.1796 of 2023 specific averment in the complaint, namely, insult or intimidation with intent to humiliate by calling caste name, the accused persons are not entitled to anticipatory bail. Moreover, while considering the application for bail, scope for appreciation of evidence and other material on record is limited. Court is not expected to indulge in critical analysis of the evidence on record. 7. This principle was followed by this Court **Ahammedkutty Pothiyil Thottiparambil v. Union of India and others [MANU/KE/1783/2023]** . This Court explained the position of law that Section 18 does not apply to cases where there is no _prima facie_ case or patent false implication or when the allegation is motivated for extraneous reasons. It was observed that in essence, Section 18 of the SC/ST Act does not bar absolutely the grant of anticipatory bail. It is explained,- “20. xx xx xx As already noticed, the question considered in Subhash Kashinath Mahajan was whether there is an absolute bar in the SC/ST Act against grant of anticipatory bail and the question was answered in the negative. A close and meticulous reading of the decision 6 Crl.Appeal No.1796 of 2023 of the Apex Court in Subhash Kashinath Mahajan would indicate that the reasons in essence, on the basis of which the Apex Court held that the SC/ST Act does not bar absolutely the grant of anticipatory bail, are the following: i) The provisions of the SC/ST Act need to be given a purposive interpretation in the context of its background and its object to achieve the purpose of law. ii) In the background of the prevailing social conditions, if perpetrators of atrocities against members of SC/ST communities are granted anticipatory bail, they would not only threaten and intimidate the victims and prevent or obstruct them from prosecuting the offenders, but would also misuse their liberty and terrorise the victims and prevent investigation; iii) In statutes where an identical provision excluding the application of Section 438 of the Code exists, there are restrictions on accused for being released on regular bail also, whereas there is no such restriction in the SC/ST Act in the matter of releasing the accused on regular bail. The position in SC/ST Act is that after rejecting an application under Section 438 of the Code, the court can grant regular bail immediately after the arrest and there is no logical rationale behind the situation of putting a fetter on grant of anticipatory bail when there is no such restriction for grant of regular bail. iv) It has been judicially acknowledged that there have been instances of abuse of the provisions of 7 Crl.Appeal No.1796 of 2023 the Act for settling private disputes. There are also instances of complaints being lodged against public servants/quasi-judicial/judicial officers with oblique motive for satisfaction of vested interests. v) The Act has become an instrument to blackmail or to wreak personal vengeance. The Act is also being used to deter public servants from performing their bona fide duties. Consequently, innocent citizens are termed as accused, which is not intended by the legislature. As such if exclusion of the application of Section 438 Of the Code is not limited to genuine cases, there will be no protection to innocent citizens.” 8. In **Prathvi Raj Chauhan v. Union of India and others [(2020) 4 SCC 727]** a three-Judge Bench of the Apex Court explained how the provisions of the SC/ST Act are to be approached. It was held that if the complaint does not make out a _prima facie_ case for applicability of the provisions of the SC/ST Act, the bar created under Section 18 shall not apply. 9. When the complaint was lodged nearly after a month and the de facto complainant did not have any visible injury when he was examined by the Doctor on the next day, it is not able to find _prima facie_ that an offence under the 8 Crl.Appeal No.1796 of 2023 provisions of the SC/ST Act was committed by the appellant. Therefore, the bar under Section 18 of the SC/ST Act cannot stand in the way of considering the application for bail. The other offences alleged against the appellant are bailable. In the circumstances, I am of the view that the impugned order is unsustainable in law and liable to be set aside. Accordingly this appeal is allowed. On setting aside the order of the court below dated 13.11.2023. The petition for anticipatory bail is allowed. In the event of arrest, the investigating officer shall, after interrogation and other processes of investigation, release the appellant on bail on the execution of a bond for Rs.50,000/- (Rupees fifty thousand only), with two solvent sureties for the like amount each, to the satisfaction of the investigating officer, and on the following conditions: - (i) The appellant shall not influence or intimidate the defacto complainant or witnesses or tamper with evidence; - (ii) He shall appear before the investigating officer as and when called for; and - (iii) During the bail period, he shall not get involved in any offence. 9 Crl.Appeal No.1796 of 2023 In case of breach of the bail conditions, the prosecution shall be at liberty to apply for cancellation of the bail before the jurisdictional court. It is made clear that the observations made above are to decide the bail application only. Sd/- **P.G. AJITHKUMAR, JUDGE** dkr