Ajith Kumar.K v. State of Kerala and Sajith

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` WEDNESDAY, THE 12[TH] DAY OF OCTOBER 2022 / 20TH ASWINA, 1944 CRL.A NO. 1000 OF 2022 ``` ## **`CRIME NO.331/2022 OF KANJIRAMKULAM POLICE STATION,`** ## **`THIRUVANANTHAPURAM`** ``` AGAINST THE ORDER/JUDGMENT IN CRL.MC 1922/2022 OF SPECIAL JUDGE SPECIAL COURT FOR TRIAL OF SC/ST POA ACT CASES, THIRUVANANTHAPURAM ``` ## **`APPELLANT/ACCUSED NO.3:`** ``` AJITH KUMAR.K AGED 48 YEARS S/O. KARUNAKARAN NADAR, AGED 48 YEARS, AJI BHAVAN, APPATTUVILA, NELLIMOODU.P.O., THIRUVANANTHAPURAM - 695 524 PIN - 695524 BY ADV SUMAN CHAKRAVARTHY ``` ## **`RESPONDENTS/STATE & DEFACTO COMPLAINANT:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2SAJITH S/O.BHASKARAN, SAJITH NIVAS, KUZHIVILAKONAM, KOTTUKAL, THIRUVANANTHAPURAM - 695 501 PIN - 695501 BY ADV S.KRISHNA SR.PP RENJIT GEORGE ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 12.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 1000 OF 2022 ``` ``` 2 ``` ## **JUDGMENT** Dated this the 12[th] day of October, 2022 This is an appeal filed under Section 14A(1) & (2) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as “the SC/ST (POA) Act”), challenging dismissal of anticipatory bail application filed by the appellant before the Special Court vide order dated 24.09.2022 in Crl.M.C.No. 1922/2022. The appellant herein is the third accused in crime No.331 of 2022 of Kanjiramkulam Police Station, where accused Nos.1 to 3 alleged to have committed offences punishable under Sections 294(b), 323, 324, 506, 341 and 307 read with Section 34 of IPC as well as Section 3(2)(v) of the the the SC/ST (POA) Act. ``` CRL.A NO. 1000 OF 2022 ``` ``` 3 ``` 2. The respondents herein are the State of Kerala as well as the defacto complainant. 3. Adv.S.Krishna appeared for the defacto complainant when the defacto complainant was served with notice as mandated under Section 153A of the SC/ST (POA) Act and filed affidavit opposing bail. 4. Heard the learned counsel for the appellant, the learned counsel for the defacto complainant as well as the learned Public Prosecutor. 5. The learned counsel for the defacto complainant and the learned Public Prosecutor strongly opposed bail, pointing out the bar under Section 18 and 18A of the SC/ST (POA) Act on the submission that a prima facie case is made out in this matter to attract offence under the SC/ST (POA) Act. 6. In this case, the prosecution allegation is that, on 23.04.2022 at about 6.00 p.m., accused Nos.1 to 3, who came in an autorickshaw at Kuzhivilakkonam ``` CRL.A NO. 1000 OF 2022 ``` ``` 4 ``` junction, wrongfully restrained the defacto complainant and uttered abusive words against the defacto complainant. Thereafter, the first accused caught hold on the neck of the defacto complainant and he was pushed down. Soon, two persons inside the autorickshaw reached the place of occurrence and beat and kicked on his abdomen and chest. The further allegation is that when the defacto complainant was about to escape, the other persons (accused Nos.2 and 3) wrongfully restrained him and facilitated the first accused to attack the defacto complainant. Thereafter, the first accused beat on the head of the defacto complainant by using a rock piece and the same caused very serious injuries. This is the basis on which, the prosecution alleges commission of above offences. 7. While pressing for anticipatory bail, it is submitted by the learned counsel for the appellant that no serious overt acts alleged against the appellant and ``` CRL.A NO. 1000 OF 2022 ``` ``` 5 ``` the appellant happened to be a traveller in the autorickshaw, who was present at the place of occurrence and he had not done anything as alleged by the prosecution. He further submitted that even referring to the recitals in the FI Statement also, no serious overt acts, apart from beating and kicking, could be gathered and there is no allegation for the defacto complainant or the prosecution that the appellant had used any weapon to assault the defacto complainant in any manner. 8. As regards to offence under Section 3(2)(v) of the SC/ST (POA) Act, it is argued by the learned counsel for the petitioner that though the offences alleged against the accused under some of the Sections of IPC, would also come under the schedule attached to the SC/ST (POA) Act. Offence under Section 3(2)(v) of the SC/ST (POA) Act would not attract in this case since there is no allegation in the FI Statement that the ``` CRL.A NO. 1000 OF 2022 ``` ``` 6 ``` petitioner herein abused or assaulted the defacto complainant with knowledge that the defacto complainant is a person belonged to the SC/ST (POA) Act. 9. It is true that in order to find commission of offence under the IPC, included in the schedule, knowledge that such person is a member of Schedule Caste or Scheduled Tribe is necessary. Going by the FI Statement, the knowledge could not be gathered prima facie since the defacto complainant even not identified the appellant with certainty at the time of occurrence. Therefore, the available records in the form of FI Statement does not suggest the said knowledge. Therefore, it has to be held that no prima facie case made out in so far as the offence under Section 3(2)(v) of the SC/ST (POA) Act is concerned. 10. It is settled law that though there is bar under Section 18 and 18A of the SC/ST (POA) Act to grant ``` CRL.A NO. 1000 OF 2022 ``` ``` 7 ``` anticipatory bail, it has been settled by the Apex Court in the decision reported in ( **2020(1) KLT 810 SC : 2020(2) KHC 423 : (2020) 4 SCC 727) Prithi Raj v. Union of India and Others** that even after incorporation of S.18A of the SC/ST POA Act, in cases where there is no prima facie case, grant of anticipatory bail is not specifically barred. Therefore, in this case, grant of anticipatory bail can not said to be barred. 11. Coming to the allegations to constitute the offences under IPC, though offence under Section 307 of IPC is also alleged, the overt acts of the appellant are not so serious. No weapon also to be recovered at the instance of the appellant since there is no allegation for the prosecution that the appellant used any weapon. In such a case, effective investigation is possible, even without custodial interrogation, recovery etc. Therefore, the appellant can be enlarged on anticipatory bail on conditions, after setting aside the order impugned. ``` CRL.A NO. 1000 OF 2022 ``` ``` 8 ``` 12. In the result, the order impugned stands set aside and the appeal stands allowed. The appellant is granted pre-arrest bail on the following conditions: 1. The appellant/accused shall surrender before the Investigating Officer within ten days from today and on such surrender, the Investigating Officer can question the accused/appellant. In the event of his arrest, the Investigating Officer shall produce the accused/appellant before the Special Court on the date of surrender itself. 2. On such production, Special Court shall release the appellant/accused on bail, on executing bond for Rs.30,000/-(Rupees Thirty thousand) each, by himself and by two sureties, each for the like sum to the satisfaction of the Special Judge. 3. The appellant/accused shall co-operate with investigation and shall be made available for interrogation and for the purpose of investigation, as and when the ``` CRL.A NO. 1000 OF 2022 ``` ``` 9 ``` Investigating Officer is directs so. 4. The appellant / accused, shall not, intimidate the witnesses or interfere with the investigation in any manner. **Sd/-** # **A. BADHARUDEEN JUDGE** nkr ``` CRL.A NO. 1000 OF 2022 ``` ``` 10 ``` ## **`APPENDIX OF CRL.A 1000/2022`** ``` PETITIONER ANNEXURES Annexure-1A TRUE COPY OF THE FIR AND FIS IN CRIME NO.331/2022 OF KANJIRAMKULAM POLICE STATION Annexure-2A TRUE COPY OF THE MEDICAL RECORDS OF THE PETITIONER SHOWING HIS VISIBILITY Annexure-3A TRUE COPY OF THE ORDER DATED 23.08.2022 IN B.A NO.6182/2022 OF THIS HON'BLE COURT Annexure-4A TRUE COPY OF THE ORDER DATED 23.08.2022INBAILAPPLICATION NO.6186/2022 BY THIS HON'BLE COURT Annexure-5A TRUE COPY OF THE COMPLAINT DATED 27.09.2022 SUBMITTED BY THE APPELLANT BEFORE THE DYSP, NEYYATTINKARA ```