Biju and others v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` WEDNESDAY, THE 29[TH] DAY OF MAY 2024 / 8TH JYAISHTA, 1946 ``` ``` CRL.A NO. 835 OF 2024 ``` ``` CRIME NO.226/2024 OF Peringome Police Station, Kannur AGAINST THE ORDER/JUDGMENT DATED 17.05.2024 IN CRMC NO.875 OF 2024 OF SESSIONS COURT, THALASSERY APPELLANT/S: ``` - **`1 BIJU AGED 43 YEARS`** ``` S/O.KUNHAPPAN, KELOTH HOUSE, KODANNUR.P.O., PERINGOME, PAYYANNUR TALUK, KANNUR DISTRICT,, PIN - 670304 ``` - **`2 SUJITH MON AGED 36 YEARS`** ``` S/O.SOLAMAN, MADHU MANDIRAM, CHELAK, KODANNUR.P.O., PERINGOME, PAYYANNUR TALUK, KANNUR DISTRICT, PIN - 670304 ``` - **`3 MADHUSOODANAN AGED 47 YEARS S/O.AMBU, KOOTHUR, K.P.NAGAR, KODANNUR.P.O., PERINGOME, PAYYANNUR TALUK, KANNUR DISTRICT,, PIN - 670304`** - **`4 MANESH MOHAN AGED 36 YEARS`** - **`S/O.MOHANAN, SREENARAYANA SADAN, KUPPOL, KODANNUR.P.O., PERINGOME, PAYYANNUR TALUK, KANNUR DISTRICT,, PIN - 670304`** - **`5 SUDHEESH.S AGED 33 YEARS S/O.SOLAMAN, MADHU MANDIRAM, CHELAK, KODANNUR.P.O., PERINGOME, PAYYANNUR TALUK, KANNUR DISTRICT,, PIN - 670304 BY ADVS.`** ``` K.R.ARUN KRISHNAN DEEPA K.RADHAKRISHNAN JISSMON A KURIAKOSE ``` Crl.A No.835 of 2024 ..2.. ``` SANAL C.S SIDHARTHAN M.T. VISHAK K.V.(K/2921/2023) ``` ## **`RESPONDENT/S:`** - **`1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031`** - **`2 SHYAMJITH T P AGED 27 YEARS`** - **`S/O PRAKASH T K THENGANAN HOUSE,MADAKKAMPOYIL, PERINGOM, KANNUR,, PIN – 670303`** ``` BY GOVERNMENT PLEADER SRI G SUDHEER ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 29.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.A No.835 of 2024 ..3.. ## **K.BABU, J** **------------------------------------------------Crl.A No.835 of 2024 ------------------------------------------------Dated this the 29[th] day of May, 2024** ## **JUDGMENT** This is an appeal filed under Section 14A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 [for short, ‘SC/ST (POA) Act’]. The challenge in this appeal is to the order dated 17.05.2024 in Crl.M.C.No.875/2024 passed by the Sessions Court, Thalassery. 2. The appellants are accused Nos. 1 to 5 in Crime No.266/2024 of Peringome Police Station, Kannur. They are alleged to have committed the offences punishable under sections 143, 147, 148, 341, 323, 324, 427, 506 r/w 149 of the Indian Penal Code and sections 3(1)(s) and 3(2) (va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Prosecution case Crl.A No.835 of 2024 **==> picture [20 x 9] intentionally omitted <==** 3. On 03.05.2024 at 07.00 PM near Madakkampoyil Plywood Factory at Peringome Amsom, appellant Nos.1 to 5 wrongfully restrained the defacto complainant who belongs to Scheduled Caste community and his friend and voluntarily caused hurt to him with hands and sticks. Appellant No.1 also abused the victim by calling his caste name. 4. I have heard the learned counsel for the appellants, the learned Public Prosecutor and respondent No.2, who appeared in person. 5. The learned counsel for the appellants submitted that the prosecution failed to prima facie establish the ingredients to attract the offences under the SC/ST (POA) Act. The learned counsel for the appellants further submitted that on 03.05.2024 at 5.30 PM the victim had assaulted appellant No.1 at the scene where a motor accident occurred in which a motor bike hit against the car driven by him. Appellant No.1 filed a complaint against the victim. The submission of the learned counsel Crl.A No.835 of 2024 **==> picture [20 x 9] intentionally omitted <==** for the appellants is that the present crime has been registered as a counter blast to the said incident. 6. The learned Public Prosecutor opposed the bail plea of the appellants on the ground that some of the appellants have criminal antecedents. 7. Respondent No.2, the victim appeared in person. He opposed the prayer in the appeal. He admitted than an incident happened at 05.30 PM on 03.05.2024, but he had not committed any acts, as alleged by the appellants. 8. The Case Diary is made available. I have gone through the First Information Statement and the related documents. Admittedly, the incident alleged by the appellants occurred at 05.30PM on 03.05.2024. His specific case is that the victim assaulted appellant No.1 in connection with a motor accident in which his car was involved. 9. In _**Prathvi Raj Chauhan v. Union of India**_ [(2020) 4 SCC 727], the Supreme Court held that the Crl.A No.835 of 2024 **==> picture [20 x 9] intentionally omitted <==** 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. 10. 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 Crl.A No.835 of 2024 ..7.. or Scheduled Tribe community, by 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 againstScheduled 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 Crl.A No.835 of 2024 ..8.. 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 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 Crl.A No.835 of 2024 **==> picture [20 x 9] intentionally omitted <==** Officer. Indubitably, such a course of action is necessary to rule out the possibility of false implication”. 11. The appellants have established that they are living in inimical terms with the victim. The possibility of false implication cannot be ruled out. 12. Having considered the circumstances brought on record on the touch stone of the precedents mentioned above, I am of the considered view that the bar under Sections 18 and 18A of the SC/ST (PA) Act is not applicable to the facts of the case. 13. The offences alleged under the Indian Penal Code are bailable. Hence the offence under section 3(2) (va) of the SC/ST (PA) Act is also bailable. 14. 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 Crl.A No.835 of 2024 ..10.. 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 Crl.A No.835 of 2024 ..11.. 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.” ## 15. 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). Crl.A No.835 of 2024 ..12.. 16. 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. Having considered the entire circumstances, I am of the view that the appellants are entitled to anticipatory bail. In the result, - (i) The Criminal Appeal is allowed. - (ii)The order dated 17.05.2024 dismissing Crl.M.C No.875 of 2024 stands set aside. - (iii)The appellants shall appear before the Investigating Officer on 12.06.2024 between - 10.00 AM and 11.00 AM for interrogation. Crl.A No.835 of 2024 ..13.. - (iv)The Investigating Officer is directed to release the appellants on bail, in the event of their arrest, on their executing bond for Rs.1,00,000/- (Rupees One Lakh only) each with two solvent sureties each for the like sum. - (v)The appellants shall not influence the witnesses or tamper with the evidence. - (vi) The petitioner shall fully co-operate with the investigation, including subjecting himself to `deemed custody’, as observed in _**Gurbaksh Singh Sibbia & Ors. v. State of Punjab**_ [(1980) 2 SCC 565] and _**Sushila Aggarwal & Others v. State (NCT of Delhi) and Ors.**_ [AIR 2020 SC 831), for the purpose of discovery or identification, if any. - (vii)The appellants shall appear before the Investigating Officer on all Saturdays Crl.A No.835 of 2024 **==> picture [26 x 9] intentionally omitted <==** between 10.00AM and 11.00AM till the Final Report is filed. **Sd/-** **K.BABU JUDGE** kkj