Agnes A and Bindhya V.V v. State of Kerala and Jyothi K.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` THURSDAY, THE 23[RD] DAY OF MAY 2024 / 2ND JYAISHTA, 1946 ``` ## **`CRL.A NO. 481 OF 2024`** ``` CRIME NO.34/2024 OF Payyannur Police Station, Kannur AGAINST THE ORDER DATED 07.03.2024 IN CRMC NO.357 OF 2024 OF ``` ## **`SESSIONS COURT,THALASSERY`** ## **`APPELLANTS/ACCUSED 1 AND 2:`** - **`1 AGNES. A, AGED 27 YEARS, D/O ANSALA, NELLIVILA HOUSE, KOTTI, PAYYANUR, KANNUR DISTRICT - 670307`** - **`2 BINDHYA. V.V, AGED 26 YEARS D/O. SREEMANI, DEVAKI NIVAS, NEAR TEMPLE ROAD, PAYYANUR, KANNUR DISTRICT., PIN - 670307 BY ADVS. M.ANUROOP SHIJU PUTHIYA PURAYIL MURSHID ALI M. ABRAHAM RAJU CYRIAC`** ## **`RESPONDENTS/STATE AND DEFACTO COMPLAINANT:`** ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2JYOTHI. K., AGED 43 YEARS, LOVESHORE, PUNCHAKADU, PAYYANNUR. P.O., KANNUR DISTRICT., PIN - 670307 BY ADVS. M.BAIJU NOEL JITHIN T.P.(K/001657/2024) T.S.LIKHITHA(K/000211/2018) ``` ## **`OTHER PRESENT:`** ``` G SUDHEER,PP ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 23.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Crl.Appeal.No.481/2024 ## **K. BABU, J. ------------------------------------------Crl.Appeal No.481 of 2024 ------------------------------------------Dated this the 23[rd] day of May, 2024** ## **JUDGMENT** This is an appeal filed under Section 14A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 [for short, ‘SC/ST (PA) Act]. The challenge in this appeal is to the order dated 07.03.2024 in Crl.M.C.No.357/2024 passed by the Sessions Court, Thalassery. 2. The appellants are accused in Crime No.34/2024 of Payyannur Police Station, Kannur. They are alleged to have committed the offences punishable under sections 451, 341, 323, 294(b) and 427 r/w section 34 of the Indian Penal Code and sections 3(1)(s) and 3(2)(va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 3. Appellant No.1 is the daughter-in-law of the victim [respondent No.2]. Appellant No.2 is a friend of appellant No.1. 3 Crl.Appeal.No.481/2024 ## 4. The prosecution case: On 09.01.2024 at 6 p.m., the appellants trespassed into the residence of the defacto complainant at Punjakkad, Payyannur, forcefully opened the front door and entered the centre hall. Appellant No.1 caught hold of and pressed the defacto complainant’s face to a sofa and kicked on her back with her knee. Appellant No.2 also voluntarily caused hurt to her. They committed mischief by causing a loss to the tune of Rs.15,000/- to the victim. They abused the victim, a member of scheduled caste, by calling her caste name within public view. 5. I have heard the learned counsel for the appellants, learned counsel appearing for the victim and the learned Public Prosecutor. 6. The learned counsel for the appellants submitted that the prosecution failed to produce the materials prima facie to establish the ingredients of the offences alleged. It is further submitted that, appellant No.1, the daughter-inlaw of the victim is living in inimical terms with her. The learned counsel submitted that several litigations are 4 Crl.Appeal.No.481/2024 pending between the parties before the Family Court, Kannur. 7. The learned counsel for the appellants further submitted that the son of the victim had taken the photographs of appellant No.1 and circulated her morphed photos through social media, against which appellant No.1 filed a complaint before the Payyannur police on 05.01.2024. It is the submission of the learned counsel for the appellants that the present crime has been registered as a counter blast. 8. The learned Public Prosecutor opposed the bail plea on the ground that there are materials to attract the offences alleged. 9. The learned counsel appearing for the victim submitted that the prosecution has placed material to attract the provisions of the SC/ST (PA) Act. It is further submitted that, even if the Court is inclined to grant bail, the appellants may be directed to deposit the value of the loss suffered by the victim as provided in Section 8 of the Kerala Prevention of Damage to Private Property and 5 Crl.Appeal.No.481/2024 Payment of Compensation Act, 2019. 10. The case diary has been made available. I have gone through the First Information Statement and the related documents. 11. The victim has no case that the appellants allegedly abused her by calling her caste name within public view. 12. Admittedly, the parties are close relatives. Litigations are pending between them before the Family Court. Appellant No.1 on 05.01.2024 filed a complaint against the son of the victim before the police alleging that her morphed photographs were circulated through social media. 13. On a perusal of the FIS and the relevant documents, I am of the view that the _mens rea_ of the appellants in the commission of the alleged offences is doubtful. 14. In **Prathvi Raj Chauhan v. Union of India [(2020) 4 SCC 727]** , the Supreme Court held that the bar created under Sections 18 and 18-A shall not apply if the 6 Crl.Appeal.No.481/2024 complaint does not make out a prima facie case for the applicability of the provisions of the Act. 15. In **Subhash Kashinath Mahajan (Dr.) v. State of Maharashtra and Another 2018 (2) KHC 207** , while dealing with the pre- amended Act, the Supreme Court held that there is no absolute bar against grant of anticipatory bail in cases under the Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide. This Court in **xxxx v. State of Kerala 2022 KHC 1001** , while considering the application of the bar under Sections 18 and 18-A of the Act held thus: “Before analysing the question as to whether, a prima facie case is made out in this matter, it is necessary to address the tendency of false implication of innocent persons, who do not belong to Scheduled Caste or Scheduled Tribe community, by misusing the provisions of the SC/ST (POA) Act. There is no quarrel that stringent provisions are incorporated in the SC/ST (POA) Act to arrest the menace of atrocities against members of the Scheduled Caste and Scheduled Tribes community by exploiting their backwardness. Since the Parliament found that the provisions of earlier SC/ST (POA) Act were not sufficient to meet the ends of justice, the Act was amended. After the amendment of the SC/ST (POA) Act, more stringent provisions have been incorporated in SC/ST (POA) Act with mandatory right of hearing to the defacto complainant at every stages of the court proceedings, as provided under Section 15A(3) of the SCT/ST (POA) Act. Thus, atrocities against 7 Crl.Appeal.No.481/2024 Scheduled Caste or Scheduled Tribe community, in fact, is intended to be curtailed by the stringent provisions of SC/ST (POA) Act. Therefore, when genuine complaint/complaints at the instance of the Schedule Caste or Scheduled Tribe members, which would attract offence/offences incorporated under the SC/ST (POA) Act, if made, the same shall be viewed seriously and appropriate legal action shall go on, to attend the grievances of the complaint/complaints. At the same time, the courts should have a duty to rule out the possibilities of false implication of innocent persons as accused, with a view to achieve ulterior motives of the complaints, with threat of arrest and detention of the accused in custody, because of the stringent provisions in the SC/ST (POA) Act in the matter of grant of anticipatory bail. It is shocking, rather a mind blowing fact that many innocent persons are victims of false implication under the SC/ST (POA) Act. Therefore, it is the need of the hour for the courts to segregate the grain from the chaff by analysing the genesis of the case, the antecedents prior to registration of the crime, with reference to existence of animosity between the complainant and the accused, with particular attention, vis-avis previous disputes/cases/ complaints, etc. while considering the question of prima facie case, when considering plea for prearrest bail. In cases, where there are materials to show that the accused and the complainant are in inimical terms, and there are previous litigation between them or their men or representatives and in retaliation or as a sequel to the same, the allegations in the complaint constituting offence/offences under the SC/ST (POA) Act are made, the same may be the reasons to doubt the case prima facie. The instances are not exhaustive. Therefore, evaluation of the above facts would help the court while addressing the question of prima facie case, at the pre-arrest bail stage. On evaluation of the genesis of the case within the ambit of the above pari materia, if the court finds something to see the possibility of false implication, in such cases, the court could very well hold that prima facie, the prosecution allegations could not be believed for the purpose of denying anticipatory bail, after leaving the question as to commission of 8 Crl.Appeal.No.481/2024 offence/offences for a detailed and fair investigation by the Investigating Officer. Indubitably, such a course of action is necessary to rule out the possibility of false implication” 16. Having considered the circumstances brought on record on the touch stone of the precedents mentioned above, I am of the considered view that the bar under Sections 18 and 18A of the SC/ST (PA) Act is not applicable to the facts of the case. 17. The offences alleged under the Indian Penal Code are bailable. Hence the offence under section 3(2)(va) of the SC/ST (PA) Act is also bailable. 18. The request of the learned counsel for the victim to direct the appellants to deposit the amount equivalent to the damage allegedly caused is challenged by the counsel for the appellants that the building and the property is a shared household as per the DV Act. 19. While considering the scope of jurisdiction under Section 438 Cr.P.C., the Constitution Bench of the Apex Court in Gurbaksh Singh Sibbia & Ors. v. State of Punjab [(1980) 2 SCC 565] held thus: 9 Crl.Appeal.No.481/2024 “31. In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made. On the other hand, if it appears likely, considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice, such an order would not be made. But the converse of these propositions is not necessarily true. That is to say, it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides; and, equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond. There are several other considerations, too numerous to enumerate, the combined effect of which must weigh with the court while granting or rejecting anticipatory bail. The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant's presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and “the larger interests of the public or the State” are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail. The relevance of these considerations was pointed out in **State v. Captain Jagjit Singh [AIR 1962 SC 253 : (1962) 3 SCR 622 : (1962) 1 Cri LJ 216]** , which, though, was a case under the old Section 498 which corresponds to the present Section 439 of the Code. It is of paramount consideration to remember that the freedom of the individual is as necessary for the survival of the society as it is for the egoistic purposes of the individual. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints on his freedom, by the acceptance of conditions which the court may think fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail.” 10 Crl.Appeal.No.481/2024 ## 20. In **Siddharam Satlingappa Mhetre v. State of Maharashtra [(2011) 1 SCC 694]** the Apex Court held thus:- “113. Arrest should be the last option and it should be restricted to those exceptional cases where arresting the B.A.Nos.5010 of 2021 & Connected cases 40 accused is imperative in the facts and circumstances of that case. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record.” ## (In **Sushila Aggarwal v. State (NCT of Delhi) [(2020) 5** **SCC 1]** ) the declaration of law in Siddharam Satlingappa Mhetre that no condition can be imposed while granting order of anticipatory bail alone was overruled). 21. In **Sushila Aggarwal** , the Constitution Bench of the Apex Court, following the decision in **Gurbaksh Singh Sibbia** , held that while considering an application (for grant of anticipatory bail) the Court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence (including intimidating witnesses), likelihood 11 Crl.Appeal.No.481/2024 of fleeing justice (such as leaving the country), etc. 22. Having considered the entire circumstances, I am of the view that the appellants are entitled to anticipatory bail. In the result, - (i) The Criminal Appeal is allowed. - (ii) The order dated 07.03.2024 dismissing Crl.M.C No.357 of 2024 stands set aside. (iii) The appellants shall appear before the Investigating Officer on 03.06.2024 between 10.00 AM and 11.00 AM for interrogation. (iv) The Investigating Officer is directed to release the appellants on bail, in the event of their arrest, on their executing bond for Rs.1,00,000/- (Rupees One Lakh only) eacg with two solvent sureties each for the like sum. (v) The appellants shall not influence the witnesses or tamper with the evidence. **Sd/-** **K. BABU JUDGE** Sbna/ 12 Crl.Appeal.No.481/2024 ## **`APPENDIX OF CRL.A 481/2024`** ## **`PETITIONER ANNEXURES`** ``` Annexure A1TRUE COPY OF THE FIR DATED 11-01-2024 IN CRIME NO. 34/2024 OF PAYYANNUR POLICE STATION. Annexure A2FREE COPY OF ORDER DATED 07-03-2024 IN CRL MC NO. 357/2024 ON THE FILES OF SESSIONS COURT THALASSERY. ```