Anikuttan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 27TH DAY OF NOVEMBER 2020 / 6TH AGRAHAYANA, 1942** ## **CRL.A.No.746 OF 2020** **AGAINST THE ORDER IN CRL.M.C.NO.608/2020 DATED 04-09-2020 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - VII, THIRUVANANTHAPURAM CRIME NO.61/2020 OF NARUVAMOODU POLICE STATION , THIRUVANANTHAPURAM** ## **APPELLANT/ACCUSED:** **ANIKUTTAN, AGED 42 YEARS, S/O. BALAKRISHNAN, NANDA NIVAS, VEDIVACHAN KOVIL, PALLICHAL VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT.** **BY ADV. SRI.S.MOHAMMED AL RAFI** ## **RESPONDENT/COMPLAINANT & STATE:** **1 X** **2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## ALEXANDER THOMAS, J. -----------------------------------------Crl. Appeal No. 746 of 2020 -----------------------------------------Dated this the 27[th] day of November, 2020 ## J U D G M E N T The appellant herein has been arrayed as accused in the impugned Anx.B FIR in Crime No.61/2020 of Naruvamoodu Police Station, Thiruvananthapuram district, for offences punishable under Secs.354, 354A(1)(i) & 323 of the IPC and Secs.3(1)(w)(i) & 3(1)(w)(ii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (Amendment 2015) _[for short “SC/ST (POA) Act, 1989”]_ on the basis of the FIS given by the 1[st] respondent lady defacto complainant on 12.2.2020, in respect of the alleged incidents which happened on 2.2.2020. The petitioner's plea for anticipatory bail has been rejected as per the impugned order dated 4.9.2020 rendered by the Addl. Sessions Court-VII, Thiruvananthapuram, in Crl.M.C. No.608/2020 arising out of abovesaid Crime No.61/2020 of Naruvamoodu Police Station, Thiruvananthapuram district. Being aggrieved by the said impugned order rejecting the plea for anticipatory bail, the appellant has preferred this Criminal Appeal under Sec.14A of the SC/ST (POA) Act, 1989. Crl. Appeal No. 746 of 2020 ..3.. 2. Heard Sri.S.Mohammed Al Rafi, learned counsel appearing for the appellant and Sri.Saigi Jacob Palatty, learned Public Prosecutor appearing for the 2[nd] respondent (State). Though notice has been duly served on the 1[st] respondent (lady defacto complainant), there is no appearance for that party. 3. The main ground on which the plea of the appellant for anticipatory bail has been rejected by the Sessions Court is that, a _prima facie_ case is made out in the above crime and therefore the plea for anticipatory bail cannot be considered in view of the statutory bar contained in Secs.18 & 18A of the SC/ST (POA) Act, 1989, as amended. It is this order of rejection of bail application that is under challenge in this Criminal Appeal. 4. Both sides have been heard. It appears that the 1[st] respondent lady defacto complainant had initially submitted Anx.A petition/complaint to the Inspector of Police, Balaramapuram, Thiruvananthapuram, for the very same incidents. In the said Anx.A petition the case of the 1[st] respondent is that, she was employed in a tailoring centre run by the wife of the appellant, and that on 2.2.2020 in the afternoon, the appellant Crl. Appeal No. 746 of 2020 **==> picture [19 x 9] intentionally omitted <==** had come there and sat near the defacto complainant's table, and when the appellant's wife was standing outside to take with a customer, the appellant in an intoxicated mood had lifted his dhoti and grabbed the lady defacto complainant and talked to her in such a sexually coloured manner in earlier occasions also. Then, the 1[st] respondent had informed this to the appellant's wife, who in turn informed the 1[st] respondent that the appellant is a good person, and that she cannot believe said version, etc. 5. Since, the abovesaid incidents which is said to have happened on 2.2.2020 has happened outside the premises of Balaramapuram Police Station, hence the 1[st] respondent had formally lodged a FIS before the Naruvamoodu Police Station, Thiruvananthapuram, within whose limits the incident is said to have happened. Anx.B is the FIR in the instant crime and internal pages 6 & 7 thereof contains the FIS given by the 1[st] respondent on 12.2.2020. A perusal of Anx.B FIS would disclose that, the 1[st] respondent has made a dramatic improvisation of her allegations, compared to her initial allegations in respect of the very same incident made as per Anx.A petition. In Anx.B FIS she Crl. Appeal No. 746 of 2020 ..5.. would say that, on 2.2.2020 when she had come to work in the tailoring shop of the appellant, by around 12.30 pm two other customers had come there and the appellant's wife had gone to the front side of the shop talking to them, and at that time, the appellant came near her and lifted his lungi, and put his male genital organ on the top of the table, and tried to made her catch his private part. Then, she had pushed him away and she felt like crying. At the time when this incident had happened, two customers who came earlier had left and the appellant's wife was still standing in the front side of the shop. When the 1[st] respondent had told about the incident to the appellant's wife, the latter said that such incident will not happen from the part of the appellant, and on hearing that the 1[st] respondent cried and left the shop room, etc. 6. The appellant has also raised a serious contention that the alleged incident had happened on 2.2.2020 at about 12.30 pm in the afternoon, whereas Anx.B FIS has been lodged only as late as on 12.2.2020 at 6.30 pm in the evening. Further that, Anx.A petition does not bear any date and no explanation has been given Crl. Appeal No. 746 of 2020 ..6.. by the prosecution for the long and unexplained delay in lodging the crime. Further that, the 1[st] respondent was working in the tailoring shop of the appellant's wife for about 1½ years and she had borrowed money from his wife, and on the day in question (12.2.2020) the appellant's wife had demanded the 1[st] respondent to return back the money immediately and had made reductions in her wages. In respect of that incident, there occurred a quarrel was raised by the 1[st] respondent, and there occurred heated exchange of words between the 1[st] respondent and the appellant's wife, and at that time the appellant had came there and attempted to pacify them, and the 1[st] respondent hurriedly left the shop and openly said that she would retaliate, etc. Hence it is pointed out by the appellant's counsel that, the allegations have been made falsely out of malicious considerations. It is also pointed out by the appellant's counsel that, the 1[st] respondent has already left the tailoring shop of the appellant's wife. 7. From a comparison of Anx.A petition and Anx.B FIS it can be seen that, there are is no case put up therein that the 1[st] respondent belongs to Scheduled Caste, or that the Crl. Appeal No. 746 of 2020 ..7.. appellant/accused knew that the 1[st] respondent belongs to Scheduled Caste. In Anx.B FIS dated 12.2.2020 given subsequently, it is stated that the 1[st] respondent belongs to Scheduled Caste Community (Sambava, Hindu). But, there are no allegations anywhere therein that the appellant knew that the 1[st] respondent belongs to Scheduled Caste. The very case of the 1[st] respondent in both Anx.A & Anx.B is that, the appellant is not in any way permanently involved in the working of his wife's tailoring shop, and that he used to come there on occasions. There is not even a remote indication that, the appellant could be imputed with the knowledge that the 1[st] respondent belongs to Scheduled Caste. That apart, the most crucial thing is that, the only allegation in Anx.A is that the appellant had come near her on that day after intoxication and had lifted his lungi and caught hold of her, and that he used to talk to her in sexually coloured language in previous occasions. There is no allegation anywhere in Anx.A that, the petitioner has either exhibited his private part or that he has done the acts referred to in Anx.B. Whereas in Anx.B, a totally dramatic version is put up. That, the appellant had come near her Crl. Appeal No. 746 of 2020 ..8.. and not only lifted his lungi, but also had also exhibited his male organ, and had placed his male organ on the table and tried to make her catch his organ, and she had wriggled out of it, etc. Entirely dramatic improvisation is made in Anx.B. Moreover, in both Anx.A & Anx.B it is stated that the appellant's wife was there at that time, and that she was just standing in front of the shop talking to some customers. It can also be seen that, allegations are raised in Anx.A petition that the appellant was intoxicated at the time of incident, whereas no such allegation of intoxication of the appellant is made in Anx.B FIS. 8. Taking into account the totality of the facts and circumstances of the case it can be seen that, drastic and dramatic improvisation has been made by the 1[st] respondent defacto complainant in the allegations made subsequently as per Anx.B FIS dated 12.2.2020 in comparison to the allegations made by her in Anx.A petition. In the light of these facts and circumstances, this Court is constrained to take the view that, atleast for the limited purpose of consideration of anticipatory bail plea, the petitioner has made out a strong case that, the abovesaid allegations made by Crl. Appeal No. 746 of 2020 ..9.. the 1[st] respondent lacks credibility and believability, and appears to be made for extraneous and ulterior considerations, and the events would have happened not in the manner as suggested by the prosecution, but would have in some other manner. That apart, there is no averment anywhere that the petitioner appellant had knowledge that the 1[st] respondent belongs to Scheduled Caste, or that he could be imputed with the legal knowledge that the 1[st] respondent belongs to Scheduled Caste, etc. Hence, this Court is of the considered view that, no _prima facie_ case is made out in this case and therefore the statutory bar under Sec.18 & 18A of the abovesaid Act cannot be pressed into service by the prosecution agency. 9. A reading of the order rendered by the Sessions Court would make it clear like the day light that, no considerations have been effected by the Sessions Court on these issues and all what has found mechanically is that, there are sufficient materials to attract the ingredients of offences, and therefore the statutory bar under Sec.18 & 18A of the abovesaid Act will stand attracted, and hence the anticipatory bail plea cannot be Crl. Appeal No. 746 of 2020 **==> picture [24 x 7] intentionally omitted <==** considered in view of the statutory bar, etc. 10. The abovesaid findings of the Sessions Court is perverse and unreasonable, and has been rendered without examining the basic factual materials in this case. In the light of these aspects, this Court is inclined to take the view that the petitioner has made out a strong probable case that, his case for anticipatory bail could be considered under Sec.438 of the Cr.P.C. That apart, the prosecution has no case that, the petitioner would flee away from the place and would abscond from the process of law. Hence, the plea for anticipatory bail could be considered and granted, subject to necessary conditions to ensure that the conduct of fair investigation, so that the petitioner appellant will not interfere with the course of investigation. 11. In that view of the matter it is ordered that, the impugned order dated 4.9.2020 rendered by the Addl.Sessions Court-VII, Thiruvananthapuram, in Crl.M.C. No. 608/2020 will stand set aside, and consequently the prayer in said Crl.M.C. No. 608/2020 and the prayer in this Criminal Appeal will stand allowed. Accordingly it is ordered that, in the event of the appellant Crl. Appeal No. 746 of 2020 ..11.. being arrested by police in connection with his involvement in Anx.B Crime No.61/2020 of Naruvamoodu Police Station, Thiruvananthapuram, then the Investigating Officer/competent police official shall release him on bail on his executing bond for Rs.35,000/- and on furnishing two solvent sureties for the like sum, each to the satisfaction of the Investigating Officer/competent police official concerned. 12. Further it is also ordered that, the grant of bail will be subject to following conditions: - _i. The appellant shall not involve in any criminal offences of similar nature._ - _ii. The appellant shall fully co-operate with the investigation._ - _iii. The appellant shall report before the Investigating Officer as and when required in that connection._ - _iv. The appellant shall not intimidate or attempt to influence witness or shall not tamper or attempt to tamper evidence in any manner, whatsoever._ - _v. The appellant shall not go anywhere near to the residence of the lady defacto complainant or to her present work place, until the conclusion of investigation in this case._ Crl. Appeal No. 746 of 2020 **==> picture [24 x 7] intentionally omitted <==** If there is any violation of the abovesaid conditions by the appellant, then the jurisdictional court concerned stand hereby empowered to consider the plea for cancellation of bail at the appropriate time. With these observations and directions, the above Criminal Appeal will stand disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG Crl. Appeal No. 746 of 2020 ..13.. ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE A** **TRUE COPY OF THE COMPLAINT DATED NIL SUBMMITED BY THE 1ST RESPONDENT BEFORE THE BALARAMAPURAM POLICE STATION.** **ANNEXURE B** **TRUE COPY OF THE FIRST INFORMATION STATEMENT IN CRIME NO.61/2020 OF NARUVAMOODU POLICE STATION.**