Arjun K Ajayan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 23[RD] DAY OF JANUARY 2024 / 3RD MAGHA, 1945** **CRL.A NO. 36 OF 2024** **CRIME NO.2123/2023 OF KOTTAYAM WEST POLICE STATION, KOTTAYAM AGAINST THE ORDER/JUDGMENT IN CRMP 3455/2023 OF DISTRICT COURT & SESSIONS COURT, KOTTAYAM** ## **APPELLANT/ACCUSED NO.3:** ARJUN K AJAYAN, AGED 19 YEARS, S/O AJAYAN, KOTTICKAL HOUSE, PARIPPU P.O., AYMANAM VILLAGE, KOTTAYAM, PIN - 686014 BY ADV M.JAYAKRISHNAN ## **RESPONDENTS/STATE/COMPLAINANT:** 1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2 THE DEPUTY SUPERINTENDENT OF POLICE, KOTTYAM WEST POLICE STATION, KOTTAYAM SOUTH P.O., KODIMATHA, KOTTAYAM, PIN - 686013 3 AJAY NATH, AGED 25 YEARS, S/O SHASHEENDRANATH, KARYALIL(H), PARIPPU P.O,KANIYANCHIRA BHAGAM, AYMANAM VILLAGE, KOTTAYAM, PIN - 686015 BY ADV SRI.LUKE J CHIRAYIL SRI.G SUDHEER, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.36 of 2024 2 ## K.BABU, J. -------------------------------------- Criminal Appeal No.36 of 2024 --------------------------------------Dated this the 23[rd] day of January, 2024 ## JUDGMENT This is an appeal filed under Section 14-A of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. The challenge in this appeal is to the order dated 14.12.2023 in Crl.M.P No.3455/2023 passed by the Sessions Court, Kottayam. The appellant is accused No.3 in Crime No.2123/2023 of Kottayam West Police Station. 2. The appellant and the other accused are alleged to have committed the offences punishable under Sections 294(b), 341 and 506(ii) read with Section 34 of the Indian Penal Code and Sections 3(1)(r) and 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'the Act'). 3. The prosecution allegations are as follows: On 10.11.2023 at about 8.00 p.m, at Parippu the appellant and the other accused intercepted the scooter by which the victim was travelling, brandished a sword stick, showered abusive words on Crl.A No.36 of 2024 3 him and intimidated him. The victim is the member of the schedule caste community. 4. Heard the learned counsel for the appellant, the learned counsel for the victim and the learned Public Prosecutor. 5. The learned counsel for the appellant submitted that the allegations levelled by the prosecution are false. 6. The learned counsel for the victim submitted that if the appellant is granted anticipatory bail, there is every possibility that he will attack the victim and the other witnesses. 7. The learned Public Prosecutor opposed the bail plea on the ground that there are materials to attract the offences alleged. 8. The Sessions Judge dismissed the application on the ground that the application is barred under Section 18 of the Act. 9. I have gone through the case diary. The appellant and the other accused are alleged to have committed the offences inter alia under Sections 3(1)(r) and 3(2)(v) of the Act. In the FIS and the other materials placed before the Court, there is nothing to show that the appellant intentionally insulted the victim knowing that he is a member of a scheduled caste. To attract the offence under Section 3(2)(v) of the Act, the offender has to commit the offence Crl.A No.36 of 2024 4 against a person knowing that such person is a member of a scheduled caste or a scheduled tribe. The victim has not made any allegation in the statement that the appellant committed the offences knowing that he is a member of a scheduled caste or a scheduled tribe. 10. In Prathvi Raj Chauhan v. Union of India [(2020) 4 SCC 727] , the Apex Court held that if the complaint does not make out a prima facie case for the applicability of the penal provisions of the Act, the bar created under Section 18 shall not apply. In the present case, as the prosecution failed to make out a prima facie case for the applicability of the penal provisions of the Act, the bar created under Section 18 is not applicable. 11. The other offences alleged are punishable under Sections 294(b), 341 and 506 (ii) read with Section 34 of IPC. 12. The prosecution has no case that the appellant used any weapon. On analysis of the facts placed before this Court, the mens rea of the appellant in the commission of the alleged acts is doubtful. 13. While considering the scope of jurisdiction under Section 438 Cr.P.C., the Constitution Bench of the Apex Court in Gurbaksh Crl.A No.36 of 2024 5 ## 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 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.” Crl.A No.36 of 2024 6 ## 14. 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 that no condition can be imposed while granting order of anticipatory bail alone was overruled) 15. 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. 16. The prosecution has no case that the appellant is absconding. There are no materials to show that the appellant Crl.A No.36 of 2024 7 attempted to influence the course of investigation or tamper with the evidence. Having considered the entire circumstances on the touchstone of the precedents mentioned 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 14.12.2023 dismissing Crl.M.P - No.3455 of 2023 as against the appellant stands set aside. - (iii) The appellant shall appear before the Investigating Officer on 30.01.2024 between 10.00 AM and 11.00 AM for interrogation. - (iv) The Investigating Officer is directed to release - 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 Crl.A No.36 of 2024 8 months. - (vi) The appellant shall not influence the witnesses in this case or tamper with the evidence. Sd/K.BABU, JUDGE KAS Crl.A No.36 of 2024 9 ## **APPENDIX OF CRL.A 36/2024** PETITIONER ANNEXURES Annexure A1 FREE COPY OF THE ORDER DATED 14.12.2023 IN CRL. M.P. NO. 3455/2023 ON THE FILES OF THE COURT OF SESSIONS JUDGE KOTTAYAM