Akhilesh Sukumaran v State of Kerala and Jenil Kumar K.S.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` WEDNESDAY, THE 28[TH] DAY OF SEPTEMBER 2022 / 6TH ASWINA, 1944 ``` ``` CRL.A NO. 953 OF 2022 ``` ``` AGAINST THE C.R.MP 3715/2022 OF DISTRICT COURT& SESSIONS ``` ## **`COURT,PATHANAMTHITTA`** ## **`APPELLANT/PETITIONER/ACCUSED NO.1:`** ``` AKHILESH SUKUMARAN AGED 25 YEARS S/O SUKUMARAN, THALAPPALA HOUSE, EAST OTHERA MURI, ERAVIPEROOR VILLAGE,THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT. PIN - 689546 ``` ``` BY ADVS. AJITH MURALI SWAPNA VIJAYAN MOHANAN M.K. RADHIKA S.ANIL ``` ## **`RESPONDENTS/RESPONDENTS/DEFACTO COMPLAINANT:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2JENIL KUMAR K.S. S/O SUKUMARAN, KOONAM PALACKAL VEEDU, THALAPPALA MALA, EAST OTHERA P.O., ERAVIPEROOR VILLAGE, PATHANAMTHITTA DISTRICT. PIN - 689546 ``` ## **`OTHER PRESENT:`** ``` SR.PP-SRI.T.R.RENJITH ``` ## **`THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 28.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:`** ``` CRL.A NO. 953 OF 2022 ``` ``` 2 ``` ## A. BADHARUDEEN, J --------------------------------------- ## Crl.A. No.953 of 2022 -------------------------------------Dated this the 28[th] day of September, 2022 ## J U D G M E N T This appeal arises out of order in Crl.M.P.No.3715/2022 on the file of District Sessions Court, Pathanamthitta. The appellant is the first accused in Crime No.1404 of 2022 of Thiruvalla Police Station, alleging commission of offences under Sections 341, 294(b), 506, 323, 427,34 of IPC, and under Section 3(1)(r) and (s) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (Amendment 2015)(hereinafter referred as' SC/ST Act' for convenience). 2. Apprehending arrest in the above case involving nonbailable offence, the appellant/accused filed petition under Section ``` CRL.A NO. 953 OF 2022 3 ``` 438 of Cr.P.C before the Special Court under the Narcotic Drugs and Psychotropic Substance Act, 1985. The learned Special Judge after finding prima facie case and also taking note of the antecedents of the petitioner in other crimes, dismissed the application. 3. Heard the learned counsel for the appellant as well as the learned Public Prosecutor representing the respondent. Though notice served to the defacto complainant he did not appear. 4. It is submitted by the learned counsel for the appellant that prima facie no offence under the SC/ST Act is made out in this matter and therefore, the bar in grant anticipatory bail under Sections 18 and 18(A) of the SC/ST Act would not apply in this case. Since, the offences alleged to be committed by the appellant under the IPC are bailable one, the order impugned is erroneous and the same deserves interference. 5. The learned Public Prosecutor would submit that, ``` CRL.A NO. 953 OF 2022 ``` ``` 4 ``` reading FIS and the additional statement available in the case diary, sufficient materials available to attract offences under Section 3(1) (r) and 3(1)(s) of the SC/ST Act and therefore, anticipatory bail cannot be granted, since the same is specifically barred under Section 18 and 18(A) of the SC/ST Act. 6. In this matter, admittedly the accused alleged to have committed offences under Section 341, 294(b), 323, 506(i), 427, 34 of IPC. All the said offences are bailable. Coming to the offence alleged SC/ST Act the same are 3(1) (r) and 3(1)(s). Section 3(1)(r) provides that, : “3 (1) : Whoever, not being a member of a Scheduled Caste or Scheduled Tribe:- *** *** *** intentionally insults or intimidate with intent to humiliate a member of the Scheduled Caste or a ``` CRL.A NO. 953 OF 2022 ``` ``` 5 ``` Scheduled Tribe in any place within public view.” Similarly Section 3(1) (s) provides that:- “3(1)(s) : abuses any member of a Scheduled Caste or a Scheduled Tribe by caste name in any place within public view.” 7. In the FIS, it is stated by the defacto complainant, that he belongs to Pulaya community of Scheduled Caste but nothing is stated in the FIS or in the additional statement to show that the accused is not a member of SC/ST community. Nothing could be gathered from the FIS or in the additional statement to hold prima facie that the appellant herein had insulted or intimidated the defacto complainant with intent to humiliate him or he abused the defacto complainant, since he belongs to Scheduled caste community. Thus the prosecution materials available before this Court do not suggest a prima facie case, in so far as the SC/ST Act ``` CRL.A NO. 953 OF 2022 6 ``` offences are concered. Therefore, there is no bar in considering the anticipatory bail plea in the context of the facts of this case, following the ratio of the decision in [2020 (2) KHC 423: AIR 2020 SC 1036: (2020) 4 SCC 727: MANU/SC/0157/2020] Prathvi Raj Chauhan v. Union of India (UOI) & Ors. In this matter, no doubt, all the offences under the IPC are bailable. In such a case, criminal antecedents also will not stand in the way of granting anticipatory bail. 8. Therefore, I am inclined to grant bail to the appellant on the following conditions: I. The appellant/accused shall surrender before the Investigating Officer at 10A.M. on a day on or before 12.10.2022, and on such surrender the Investigating Officer can interrogate the accused and after interrogating the accused, he shall be produced before the Special Court on the same day and the Special Judge ``` CRL.A NO. 953 OF 2022 7 ``` shall release the accused on bail on his executing bond for Rs.50,000/- (Rupees Fifty Thousand Only) with two solvent sureties, each for the like amount to the satisfaction of the Special Court. II. The appellant/accused shall not intimidate the witnesses or tamper with evidence. He shall co-operate with the investigation and shall be available for trial. III. The appellant/accused shall not involve in any other offence during the currency of bail and any such event, if reported or came to the notice of this court, the same shall be a reason to cancel the bail hereby granted 9. It is made clear that observation of this Court that, there is no prima facie case in this judgment, shall not prevent the Investigating Officer to collect further evidence, in relation to the SC/ST Act offences if any, alleged to be committed by the accused ``` CRL.A NO. 953 OF 2022 ``` ``` 8 ``` during the course of investigation. It is also made clear that the observations herein have no binding force, while evaluating the evidence during trial and the decision after trial, if any, shall be based on the evidence to be adduced. Sd/A. BADHARUDEEN JUDGE TR ``` CRL.A NO. 953 OF 2022 9 ``` ## **`APPENDIX OF CRL.A 953/2022`** ``` PETITIONER ANNEXURE Annexure-AA TRUE COPY OF THE FIR & FIS IN 1404/2022 OF THIRUVALLA POLICE STATION ```