Ajeesh Kumar v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 29TH DAY OF NOVEMBER 2019 / 8TH AGRAHAYANA, 1941** ## **CRL.A.No.1307 OF 2019** **AGAINST THE ORDER IN CRMC 2196/2019 DATED 21-10-2019 OF DISTRICT COURT & SESSIONS COURT,TRIVANDRUM** ## **CRIME NO.616/2019 OF Vilappilssala Police Station, Thiruvananthapuram** ## **APPELLANT:** **AJEESH KUMAR AGED 39 YEARS S/O.VISWAMBHARAN, VISWA VIHAR, CHERUMANKONAM, VILAPPILSALA.P.O., VILAPPIL VILLAGE, KATTAKKADA TALUK, THIRUVANANTHAPURAM.** **BY ADVS. SRI.G.RANJU MOHAN SMT.M.SANTHI (K/868/2011)** ## **RESPONDENT:** **STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** ## **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 29.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.1307 OF 2019** **2** ## **ALEXANDER THOMAS, J ============================ Crl.Appeal No. 1307/2019 ============================== DATED THIS THE 29[th] DAY OF NOVEMBER, 2019** ## **JUDGMENT** The petitioner herein has been arrayed as the sole accused in the instant Crime No.616/2019 of Vilappilsala Police Station, Thiruvananthapuram, which has been registered for offences punishable under Section 498 A of the IPC and Section 3(1)(s) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 2. The prosecution case in short is that, the lady defacto complainant in this case and her daughter belong to Scheduled Caste Community and that petitioner does not belong to SC/ST community and that the lady defacto complainant's daughter has married the petitioner/accused and that after the marriage, petitioner used to consistently treat her with cruelty and harassment and that he has called her by caste name etc. 3. Counsel for the petitioner would point out that the abovesaid allegations are false and baseless and that even going by the acquitted prosecution it can be seen that the defacto complainant in this case for **CRL.A.No.1307 OF 2019** **3** setting in motion the substantive offence as per Section 498A of the IPC is not the really aggrieved person, which in ordinary cases is the wife of the accused but the mother of the wife of the petitioner. Petitioner had contracted intercaste marriage with his wife, to the strongest dislike of his mother in law who is the defacto complainant in this case and she has been consistently making very many road blocks in the marital life of the petitioner and it is only to spite and put pressure on the petitioner out of the said animosity that the petitioner's mother in law has got the abovesaid crime registered as the first informant/defacto complainant. Further that the actually aggrieved person who is none other than the wife of the petitioner has not come forth with any allegation that petitioner has called her the caste name or that petitioner has treated her with cruelty and harassment in the course of their marital life. Further that this aspect itself would make it clear like the day light that the abovesaid crime has been registered only out of the malafide and extraneous considerations of the petitioner's mother in law and then therefore going by the dictum made by this Court in decisions as in _**Jishnu v. State of Kerala** [_ _**2019(1) KLT 432** ]_ , not even a prima facie case of substance as per the SC/ST (POA) Act is made out and therefore the statutory bar under Section 18 and 18 A of the said Act will not apply on the facts of this case and that therefore this Court is **CRL.A.No.1307 OF 2019** **4** competent to consider the plea for anticipatory bail on merits under Section 438 of the Cr.P.C and that this Court may grant anticipatory bail to petitioner subject to appropriate stringent conditions. 4. The learned Prosecutor has opposed the plea for anticipatory bail and has pointed out that the statutory bar under Section 18 and 18A of the abovesaid Act would apply and that therefore this Court has no jurisdiction to consider the plea for anticipatory bail on merits. 5. This Court in decisions as in _**Jishnu v. State of Kerala** [_ _**2019(1) KLT 432** ]_ has held that if a person is able to show prima facie that he has not committed any atrocity against a member of a Scheduled Caste and Scheduled Tribe and that the allegation was malafide and prima facie false and that no case was made out, then there is no justification in holding that the bar under Sec.18 & Sec.18A would apply in those cases. It will be profitable to refer to paragraphs 6 & 8 of the abovesaid decision of this Court in _**Jishnu's**_ case supra in _**2019 (1) KLT 432**_ which reads as follows: _“6. If a person is able to show that prima facie, he has not committed any atrocity against the member of a Scheduled Caste and Scheduled Tribe and that the allegation was mala fide and prima facie false and that no case was made out, there is no justification in holding that the bar under S.18 would apply in those cases. Of course, the perpetrators of atrocities against members of the SC & ST cannot be and_ **CRL.A.No.1307 OF 2019** **5** _should not be granted anticipatory bail as there is every likelihood that the accused would terrorise them. However, the Apex Court has consistently held that innocent persons against whom there was no prima facie case for having violated the provisions of Act 33 of 1989 cannot be subjected to the same treatment as the persons who are prima facie perpetrators of the crime._ **==> picture [272 x 10] intentionally omitted <==** _8. As held by the Apex Court mere unilateral allegation by any individual belonging to any caste, when such allegation is clearly motivated and false, cannot be accepted as gospel truth to deprive a person of his liberty without an independent scrutiny. The exclusion of provision of anticipatory bail cannot possibly be treated as applicable when no case is made out or allegations are patently false or ill motivated. The protection of innocents against abuse of law is part of inherent jurisdiction of court being part of access to justice and to protect individual liberty against any oppressive action. At the same time, S.18 of the Act would apply in all its vigor in deserving cases where on evaluation of the prosecution allegation, the court finds the case to be prima facie genuine warranting custodial interrogation and pre - trial arrest and detention.”_ 6. After hearing both sides and after careful evaluation of the facts and circumstances of this case, and taking note of the fact that the complainant in this case is not the spouse of the petitioner who could be **CRL.A.No.1307 OF 2019** **6** said to be the directly aggrieved person but the mother in law of the petitioner and taking note of some of the submissions given by the petitioner herein above, this Court is inclined to take a view that on application of the dictum laid by this Court in _**Jishnu's**_ case supra in _**2019 (1) KLT 432**_ etc, the statutory bar under Section 18 and 18A of the said Act would not apply as the prosecution appears to be actuated by malafides and extraneous considerations. This assessment made by this Court only for the limited purpose for the consideration of the anticipatory bail plea. Hence this Court has jurisdiction under Section 438 of the Cr.P.C to consider the plea for pre-arrest bail on merits. 7. Accordingly it is ordered that in the event of the petitioner being arrested by police in connection with the abovesaid crime, he shall be released on bail on his executing a bond for Rs.40,000/- each and on furnishing two solvent sureties for the likesum, both to the satisfaction of the competent Court below concerned. Further it is ordered that it will be subject to following conditions:- - _(1) The petitioner shall not involve in any criminal offences of similar nature._ _(2) The petitioner shall fully co-operate with the investigation._ - _(3) The petitioner shall report before the Investigating Officer as and when required in that connection._ _(4) The petitioner shall not influence witness or shall not_ **CRL.A.No.1307 OF 2019** **7** _tamper or attempt to tamper evidence in any manner, whatsoever._ _(5) If there is any violation of the abovesaid conditions by the petitioner then the jurisdictional court concerned stand hereby empowered, to consider the plea for cancellation of bail at the appropriate time._ However it is made clear that the abovesaid observations and findings made by this Court herein above are only in the limited context to decide as to whether the abovesaid statutory bar could apply in the anticipatory bail plea and the said findings will not have any effect on any such issues that may be raised in other appropriate proceedings including in trail which has to be decided independently and untrammeled by the abovesaid observations and findings rendered by this Court herein above. With these observations and directions, the above application will stand disposed of. ## **Sd/-** ## **ALEXANDER THOMAS** ## **JUDGE** ## **SVP** **CRL.A.No.1307 OF 2019** **8** ## **APPENDIX** **PETITIONER'S/S EXHIBITS: ANNEXURE A1 TRUE COPY OF THE ORIGINAL PETITION IN O.P.NO.1076/2019. ANNEXURE A2 CERTIFIED COPY OF THE ORDER IN CRL.M.C.NO.2196/2019 DATED 21.10.2019.** ## **RESPONDENT'S EXHIBITS: NIL** //TRUE COPY// Sd/PA TO JUDGE