Bail Appl. No. 5157 of 2013

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 5TH DAY OF AUGUST 2013/14TH SRAVANA, 1935 Bail Appl..No. 5157 of 2013 () ------------------------------- AGAINST THE ORDER/JUDGMENT IN Bail Appl. 9074/2012 of HIGH COURT OF KERALA DATED CRIME NO. 34/2013 OF MANJERI POLICE STATION , MALAPPURAM ACCUSED(S)/PETITIONERS/ACCUSED: ------------------------------------------------------------ 1. JAMSHEER A.V. S/O.LATE ABDULLA A.V., ARUVEETIL HOUSE MANJERI COLLEGE P.O., HILLTOP ROAD, MANJERI MALAPPURAM DISTRICT. 2. ASHIQ V.P. AGED 30 YEARS S/O.SHOUKATH, VATTAPARAMBIL HOUSE, MANGALASSERY MANJERI, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR COMPLAINANT(S)/RESPONDENT/STATE AND COMPLAINANT: --------------------------------------------------------------------- 1. THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031. 2. THE SUB INSPECTOR OF POLICE MANJERI POLICE STATION, MALAPPURAM DISTRICT PIN-671121. 3.ADDL.R3 - DHOUMYA RAM, D/O.LATE RAMAN, AGED 21 YEARS, PARAMBANTHODY HOUSE KOTTUYPATTA, MANJERI, MALAPPURAM DISTRICT. ADDL.R3 IS IMPLEADED VIDE ORDER DTD. 5/8/134 IN Crl.M.A. 5976/13 IN B.A.5157/13.) R-R3 BY ADV. SRI.K.M.SATHYANATHA MENON R-R3 BY ADV. SMT.KAVERY S THAMPI R BY PUBLIC PROSECUTOR SMT.LALIZA T.Y. THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 31-072013, THE COURT ON 5/8/2013 PASSED THE FOLLOWING: ## **S.S.SATHEESACHANDRAN,J.** **==========================** **B.A. No. 5157 of 2013** **============================** **Dated, this the 5th day of August, 2013** **ORDER** A question of significance has arisen in the above application moved for anticipatory bail under section 438 of Code of Criminal Procedure, for short the Code. 2.Petitioners (A1 and A2), two among the accused in a crime under investigation, have moved the application seeking pre arrest bail. The above crime was registered for various offences under the Penal Code and also for an offence of atrocity punishable under section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,1989, for short the Act. Whether the interdiction imposed under section 18 of the above Act bar the entertaining of present ## B.A.No.5157/2013 2, application filed under section 438 of the Code, is the question to be considered and resolved. 3. Petitioners, both of them, are not members of scheduled caste and scheduled tribe, and de facto complainant is stated to be a member of scheduled caste. The accused,five in number, naming three of them (A1 to A3) and the rest identifiable by sight, set fire to a shed situate in the property of de facto complainant, after pouring petrol over that structure. Occurrence allegedly took place at 11 p.m on 13.1.2013 is the allegation. De facto complainant with members of her family intervened to prevent the accused, but, they were wrongfully restrained and abused calling their caste name, is the further allegation. Crime registered for offences punishable under sections 143, 147, 341,435, 506(i) read with section 149 IPC and section 3(1)(x) of the Act is presently under investigation. 4. An application for impleadment was filed by de facto complainant seeking permission for hearing B.A.No.5157/2013 3, her also. That application was allowed ordering her impleadment as additional third respondent. 5. I heard learned counsel for petitioner, learned counsel for additional third respondent and also learned Public Prosecutor. 6. Relying on number of judicial pronouncements learned counsel for petitioners contended that the bar under section 18 of the Act is not absolute and an accused proceeded for an offence of atrocity under the Act can maintain an application for anticipatory bail showing that no such offence on the allegations raised is disclosed in the case. Learned counsel has relied on **K.Mallesham v. State of A.P (1999 Crl.L.J.324), Om Parkash Sharma v. Union Territory Chandigarh (2001 (4) Crimes 208), Mukesh Kumar Saini and others v. State (Delhi Administration)(2001 Crl.L.J.4587), Chikkappa and others v. State of Karnataka (2002 KHC 2058),N.B.Gungarakoppa and others v. State of Karnataka (2002 Crl.L.J. 3311),Shyam Singh &** B.A.No.5157/2013 4, **another v. State of M.P.(2006(2)Crimes 161,** **Ramasamy and another v. State by Inspector of Police (1997(2) Crimes 684), Bhupendra Das Vaishnava and another v. State of Chhattisgarh** **(2006(3) Crimes 590),** to contend that entertaining of an application under section 438 of the Code is not totally barred by section 18 of the Act where an offence of atrocity is included alone or with other penal offences, and, the court has to lift the veil to ascertain and form a conclusion whether the accusation prima facie constitute an offence of atrocity under the Act. Allegations stated in the first information statement of de facto complainant, according to counsel, impute only that accused persons abused the de facto complainant and members of her family with caste name, but do not show that it was done 'in public view.' To constitute an offence of atrocity under section 3(1)(x) of the Act, learned counsel contends that intentional insult or intimidation ## B.A.No.5157/2013 5, with intent to humiliate a member of a scheduled caste or scheduled tribe at a place within public view has to be made out. De facto complainant and members of her family were called by their caste name, that alone, was her case to allege an 'atrocity', which by itself does not satisfy the essential ingredient under section 3(1)(x) of the Act, is the submission of counsel to urge that an application for anticipatory bail by petitioners (A1 and A2)is not barred by section 18 of the above Act. Relying on some annexures produced with the petition, learned counsel contended that the case has been foisted against petitioners and other accused persons on false allegations, and, with respect to the property where the shed was situate, civil disputes are pending between the parties and an order of interim injunction had been passed in favour of petitioners in a suit filed by them. An application for anticipatory bail had been moved by petitioners previously with the third accused but later it was withdrawn since proceedings against B.A.No.5157/2013 6, third accused were dropped by police is the submission of counsel. A previous application was filed does not disentitle petitioners to prosecute the present petition, according to the counsel. 7. Application is opposed by learned Public Prosecutor and also learned counsel appearing for additional third respondent, de facto complainant. Learned Public Prosecutor has also made available the Case Diary for my perusal. 8. Petitioners 1 and 2 are involved in several crimes registered at Manjeri Police Station for various penal offences, and proceedings under section 107 of the Code of Criminal Procedure and also under the Kerala Police Act had been taken against them, is the submission of learned Public Prosecutor. They are also involved in a crime registered for offence under the Money Lenders Act in which third accused in the crime is a co- accused, is the further submission of learned Public Prosecutor. Through fradulent means some documents of transfer were created by first B.A.No.5157/2013 7, petitioner, a money lender, over the property which belonged to the father of de facto complainant, and, setting of fire to the shed enjoyed by de facto complainant and members of her family was done by the accused to deprive them of their property, is the submission of learned counsel for de facto complainant. Petitioners are rich and highly influential persons, and first petitioner is doing business of money lending submits the counsel. Petitioners are involved in several crimes,is the further submission of counsel relying on some annexures produced along the application moved for impleadment of de facto complainant. 9. Petitioners are proceeded as accused for an 'offence of atrocity' under the Act. Entertainability of their application has to be considered first before proceeding with the enquiry whether exercise of discretion for grant of such relief is called for in the facts of the case. Section 18 of the Act reads thus:- B.A.No.5157/2013 8, **18. “Section 438 of the Code not to apply to persons committing an offence under the Act--Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.”** Legality of the above section had been impeached on the ground that it is an infringement to 'right to life' guaranteed under Article 21 of the Constitution of India. That challenge was repelled by apex court in **State of M.P and** **another v. Ram Kishna Balothia and another (AIR** **1995 SC 1198)** holding that anticipatory bail is essentially a statutory right and not an ingredient of right to life. Non- applicability of anticipatory bail to certain special category of offences, it has been held, cannot be B.A.No.5157/2013 9, considered as violative of Article 21 of the Constitution of India. The question then is whether Section 18 of the Act cause an absolute bar in entertaining an application for anticipatory bail where a person is proceeded against on the allegation of committing an offence of atrocity under that Act. 10. The above question is no longer res integra. The apex court after examining Section 18 of the Act in **Vilas Pandurang Pawar and another v. State of Maharashtra & Others (2012 (8) SCALE 577)** has laid down the parameters to be followed in adjudging an application for anticipatory bail moved by a person suspected or accused of an offence of atrocity under the Act. It has been held that section 18 of the Act creates a specific bar in the grant of anticipatory bail, and so when a person is accused of an offence registered under the Act no court shall entertain an application for B.A.No.5157/2013 10, anticipatory bail from him unless it is satisfied prima facie that such an offence has not been made out. Enquiry to examine whether a prima facie case has been made out showing an offence of atrocity or not, is also very limited, has also been emphasised by the apex court. In the above decision dilating on the above aspects apex court has held thus: **“8.Section 18 of the SC/ST Act** **creates a bar for invoking Section 438 of the Code. However, a duty is cast on the court to verify the averments in the complaint and to find out whether an offence under section 3(1) of the SC/ST Act** **has been prima facie made out. In other words, if there is a specific averment in the complaint, namely, insult or** **==> picture [323 x 622] intentionally omitted <==** **----- Start of picture text -----**<br> |||||| |---|---|---|---|---| |B.A.No.5157/2013|11,| |intimidation|with|intent|to| |humiliate|by|calling|with| |caste|name,|the|accused| |persons are not entitled to| |anticipatory bail.| |9. The scope of Section 18 of| |the|SC/ST|Act|read|with| |Section 438 of the Code is| |such|that|it|creates|a| |specific bar in the grant of| |anticipatory bail. When an| |offence is registered against| |a person under the provisions| |of the SC/ST Act, no Court| |shall|entertain|application| |for anticipatory bail, unless| |it prima facie finds that such| |an offence is not made out.| |Moreover,|while|considering| **----- End of picture text -----**<br> **==> picture [431 x 621] intentionally omitted <==** **----- Start of picture text -----**<br> |||||||| |---|---|---|---|---|---|---| |B.A.No.5157/2013|12,| |the|application|for|bail,| |scope|for|appreciation|of| |evidence and other material on| |record is limited. Court is| |not|expected|to|indulge|in| |critical|analysis|of|the| |evidence on record. When a| |provision has been enacted in| |the Special Act to protect the| |persons|who|belong|to|the| |Scheduled|Castes|and|the| |Scheduled Tribes and a bar has| |been imposed in granting bail| |under Section 438 of the Code,| |the provision in the Special| |Act cannot be easily brushed| |aside by elaborate discussion| |on the evidence.”| |Decisions|rendered|by|Delhi|High|Court|in| **----- End of picture text -----**<br> B.A.No.5157/2013 13, **Dr.R.K.Sangwan & another v. State (2009(112) DRJ 473 (DB),and Orissa High Court in Ramesh Prasad Bhanja & Others v. State of Orissa (1996** **Cri.L.J.2743)** granting pre arrest bail to the accused who were charged for the offence of atrocity under the Act are referred to in the above decision making it clear that they cannot be accepted as precedent. The apex court has held that a duty is cast upon the court to look into the averments in the complaint to examine whether an offence of atrocity is prima facie made out or not. 11. Petitioners have not produced copy of the first information statement given by de facto complainant which led to registration of the crime for the 'offence of atrocity' under the Act against them with other penal offences. A copy of the statement with FIR has been produced by additional third respondent- de facto complainant. De facto complainant has alleged that when the accused B.A.No.5157/2013 14, persons set fire to the shed after pouring petrol she and other members of her family intervened, but they were wrongfully restrained. They were also criminally intimidated and the accused called them their caste name. Mere calling of caste name would not constitute an offence under section 3(1) (x) of the Act is the case of petitioners to contend that no offence of atrocity even prima facie has been made against them. Calling of caste name must be at a place within public view and it should have been done intentionally to insult or to intimidate with intent to humiliate a member of the scheduled caste or scheduled tribe, to constitute, the offence of atrocity under section 3(1)(x) of the Act. That is totally absent in the averments made in the statement of de facto complainant is the case of petitioners. Whether offence of atrocity under the Act is prima facie disclosed on the statement is the question to be looked into. Perusing the First Information Statement of de facto complainant, it is seen, the B.A.No.5157/2013 15, allegations imputed over the setting fire of shed enjoyed by her and other members of her family, who are members of a scheduled caste, after pouring of petrol over that structure by accused persons, who are not members of scheduled caste or scheduled tribe, prima facie constitute an offence under section 3 (2)(iii) of the Act, which reads thus:- 3. Punishments for offences of atrocities--(1)xx xx xx (2)Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe-- (i) xx x xx xx **==> picture [261 x 11] intentionally omitted <==** (iii) commits mischief by fire or any explosive substance intending to cause or knowing it to be likely that he will thereby cause damage to any property belonging to a member of a Scheduled Caste or a Scheduled Tribe, B.A.No.5157/2013 16, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to seven years and with fine;. Crime was registered for the offence under section 3(1)(x) of the Act alone, cannot be the basis for examining whether any offence of atrocity under section 3 of the Act has been made out prima facie on the statement given by de complainant. Specific bar in Section 18 of the Act interdicting the entertaining of an application for anticipatory bail invoking the provision of Section 438 of the Code cannot be by-passed solely on the basis of offence of atrocity noted by police in registering the crime, but, only on satisfaction that no offence of atrocity under section 3 of the Act has been made out on the allegations raised in the complaint. That being so, I find the application for anticipatory bail moved by petitioners against whom the allegations set out in the complaint make out a prima facie B.A.No.5157/2013 17, case for the offence of atrocity under section 3 (2)(iii) of the Act,is not entertainable. 12. After looking into the Case Diary produced also, I do not find any merit in the case canvassed by petitioners for filing the present application after withdrawal of a previous application moved by them with the third accused. Previous application filed with third accused was withdrawn since the police removed that accused from the crimne is the reason stated to file the present petition. That case canvassed is shown to be factually incorrect and third accused continues to be an accused in the crime. Further more, the reason so canvassed for prosecuting an application for anticipatory bail afresh, which is a discretionary relief, after dismissal of previous petition as withdrawn, is totally meritless. No party has the right to move successive applications for the discretionary relief under section 438 of the Code before the same court after dismissal of a previous B.A.No.5157/2013 18, application, whether it be on merits or on dismissal as withdrawn. Petition is dismissed. Sd/- S.S.SATHEESACHANDRAN JUDGE /true copy/ P.S to Judge tpl/-