Anilraj A v. State of Kerala & Another

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE K. BABU`** ``` TUESDAY, THE 19[TH] DAY OF MARCH 2024 / 29TH PHALGUNA, 1945 ``` ## **`CRL.A NO. 431 OF 2024`** ``` CRIME NO.2044/2023 OF Vaikom Police Station, Kottayam ``` ``` AGAINST THE ORDER/JUDGMENT DATED 28.02.2024 IN CMP NO.342 OF 2024 OF DISTRICT COURT & SESSIONS COURT,KOTTAYAM APPELLANT: ``` ``` ANILRAJ A AGED 29 YEARS S/O RAJAN, ASWATHY BHAVANAM, CHEMPU P.O, VAIKOM, KOTTAYAM, PIN - 686608 ``` ``` BY ADVS. HARIKRISHNAN K. ARUN FRANCIS AKHIL SHAJI ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA THROUGH THE STATION HOUSE OFFICER, VAIKOM POLICE STATION REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031`** - **`2 RAJANI AGED 48 YEARS W/O KUSUMAN, CHALUTHARAYIL HOUSE, NEAR PANAKKAL AMBALAM, KATTIKUNNU, CHEMBU, KOTTAYAM, PIN - 686608`** ## **`SRI.G.SUDHEER P P`** ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 19.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 431 OF 2024 ``` ``` 2 ``` ## . **K.BABU, J** -------------------------------------- ## Crl.A.No.431 of 2024 --------------------------------------- ## **Dated this the 19[th] day of March, 2024** ## **J U D G M E N T** This is an appeal filed under Section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The challenge in this appeal is to the order dated 28.02.2024 in Crl.M.P No.342/2024 passed by the Sessions Court, Kottayam. 2. The appellant is accused No.2 in Crime No.2044/2023 of Vaikom Police Station. He is alleged to have committed offences punishable under Sections 448, 294(b), 323, 324, 354 and 427 r/w Section 34 of the IPC and Sections 3(1), (r), and 3(2) (va) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (Amendment Act 2015) (for short ‘the Act’). ## The prosecution case: 3. On 17.12.2023, at about 7.00 p.m., the appellant and the other accused, after having trespassed into the residential house of the defacto complainant/ respondent No.2, who is a member of the Scheduled Caste Community, using abusive ``` CRL.A NO. 431 OF 2024 ``` ``` 3 ``` words had assaulted her son. When the defacto complainant and her daughter-in-law intervened, accused No.1 assaulted them also. They committed mischief by causing loss to the tune of Rs.1,500/- to the defacto complainant. 4. Notice was served on the victim. He did not turn up. 5. Heard the learned counsel for the appellant and the learned Public Prosecutor. 6. The learned counsel for the appellant submitted that the prosecution failed to produce materials to prima facie establish the ingredients of the offences alleged. It is further submitted that the appellant and the son of the defacto complainant have been living in inimical terms due to political rivalry. 7. The learned Public Prosecutor opposed the bail plea on the ground that there are materials to attract the offences alleged. 8. The case diary has been made available. I have gone through the first information statement and the related documents. The victim has no case that the appellant insulted or intimidated her or her son on account of them belonging to the ``` CRL.A NO. 431 OF 2024 ``` ``` 4 ``` Scheduled Caste or Scheduled Tribe. To attract the offence under Section 3(1)(r) of the Act, the offender has to intentionally insult or intimidate with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view. 9. In the present case, the prosecution has no case that the alleged incident took place in public view. 10. In Hitesh Verma v. State of Uttarakhand and another (2020 KHC 6631) the Supreme Court while considering the ingredients to attract Section 3(1)(r) of the Act held that all insults or intimidations to a person will not be an offence under the Act unless such insult or intimidation is on account of victim belonging to Scheduled Caste or Scheduled Tribe. 11. The prosecution also alleges the offences under Sections 448, 294(b), 323, 324, 354 and 427 r/w Section 34 of the IPC. The non bailable IPC offence is Section 354. To attract the offence under Section 354 the offender has to assault or use criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty. The materials made available by the prosecution do not indicate that the appellant and other accused assaulted or used criminal force ``` CRL.A NO. 431 OF 2024 ``` ``` 5 ``` to the defacto complainant intending to outrage or knowing it to be likely that they will thereby outrage her modesty. Therefore, the mens rea of the appellant in the commission of the offence under Section 354 is doubtful. 12. 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 complaint does not make out a prima facie case for the applicability of the provisions of the Act. 13. 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 ``` CRL.A NO. 431 OF 2024 ``` ``` 6 ``` 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 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 ``` CRL.A NO. 431 OF 2024 ``` ``` 7 ``` prosecution allegations could not be believed for the purpose of denying anticipatory bail, after leaving the question as to commission of 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” 14. The FIS and the other relevant materials would show that the defacto complainant and her son were living in inimical terms with the appellant. Therefore, I am of the considered view that the bar under Sections 18 and 18-A of the Act is not applicable to the facts of the case. 15. The learned Public Prosecutor submitted that the weapon used was a key chain which was seized by the Investigating Agency. 16. 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: “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 ``` CRL.A NO. 431 OF 2024 ``` ``` 8 ``` 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.” ## 17. 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 ``` CRL.A NO. 431 OF 2024 ``` ``` 9 ``` that no condition can be imposed while granting order of anticipatory bail alone was overruled). 18. 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 of fleeing justice (such as leaving the country), etc. 19. Having considered the entire circumstances on the touchstone of the principles discussed above, I am of the view that the appellant is entitled to anticipatory bail. In the result, - (i) The Criminal Appeal is allowed. - (ii) The order dated 28.02.2024 dismissing Crl.M.P No.342 of 2024 stands set aside. (iii) The appellant shall appear before the Investigating Officer on 08.04.2024 between 10.00 AM and 11.00 AM for interrogation. - (iv) The Investigating Officer is directed to release ``` CRL.A NO. 431 OF 2024 ``` ``` 10 ``` the appellant on bail, in the event of his arrest, on his executing bond for Rs.1,00,000/- (Rupees One Lakh only) with two solvent sureties each for the like sum. v) The appellant shall appear before the Investigating Officer on all Mondays between 10.00 AM and 11.00 AM for a period of two months or till the final report is filed, whichever is earlier. vi) The appellant shall not influence the witnesses or tamper with the evidence. Sd/- K. BABU JUDGE saap ``` CRL.A NO. 431 OF 2024 ``` ``` 11 ``` ## **`APPENDIX OF CRL.A 431/2024`** ``` PETITIONER ANNEXURES Annexure A1TRUE COPY OF FIRST INFORMATION REPORT AND FI STATEMENT IN CRIME NO. 2044/2023 OF VAIKOM POLICE STATION DATED 18.12.2023 Annexure A2TRUE COPY OF THE ADDITIONAL REPORT DATED 05.01.2024 Annexure A3TRUE COPY OF THE FIR IN CRIME NO. 2050/2023 OF VAIKOM POLICE STATION DATED 19.02.2023 Annexure A4TRUE COPY OF ORDER IN BAIL APPLICATION NO 166 OF 2024 DATED 18.01.2024 OF HON'BLE HIGH COURT OF KERALA Annexure A5TRUE COPY OF THE BAIL ORDER OF ACCUSED NO. 1 IN CMP NO. 6293/2023 IN CRIME NO. 2044/2023 OF VAIKOM POLICE STATION BY HON'BLE JUDICIAL FIRST-CLASS MAGISTRATE COURT VAIKOM DATED NIL ```