Bineesh P Babu, Vishnu K P, Rajaneesh P T, Ajith P Sasi and Akhil K V v. State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: V.G. Arun
Judgment Date: 2021-01-07
Court Decision / Holding: The Criminal Appeal is dismissed with the above direction.
Final Disposition: Dismissed; appellants to surrender before Sessions Court, Kottayam and seek bail there, with the Sessions Court to decide on the bail on surrender.

Parties to the Case

Appellants / Petitioners

Bineesh P Babu
Vishnu K P
Rajaneesh P T
Ajith P Sasi
Akhil K V

Respondents

State of Kerala
ADDl.R2 Biji Mol P.K

Legal Representation & Advocates

Counsels for Petitioners

• T.P. Pradeep
• S. SreeDev
• P.K. Sathees Kumar

Counsels for Respondents

• J. Abhilash

Case Synopsis & Summary

This criminal appeal concerns five appellants challenging an order denying pre-arrest bail under the SC/ST (PoA) Act in a violent incident that occurred on 5 August 2018 at the de facto complainant’s ancestral home in Kumarakom, Kottayam. The appellants, accused in Crime No. 1312/2018, face multiple offences including unlawful assembly, rioting with deadly weapons, hurt, wrongful restraint, cruelty, criminal trespass, attempted disrobe, and offences under the SC/ST (PoA) Act read with Section 149 IPC. The FIR was registered after alleged delays, and the appellants argued the allegations were false, that Jerin and his associates attacked them first, that drugs and alcohol were consumed in the area, and that arrest was unnecessary; they contended that Section 18 of the SC/ST PoA Act acts as a bar to anticipatory bail, citing Basheer v. State of Kerala to support their position. The State and the complainant’s defense argued for denial of bail due to the seriousness of the alleged offences and the protection afforded to the SC community under the Act, including allegations that police inaction and political influence affected earlier action. The High Court held that while Section 18 imposes a constraint on anticipatory bail, Basheer’s ratio does not apply here given different facts; it nonetheless noted the delay in registering the FIR and directed the appellants to surrender before the Sessions Court, with bail applications to be considered on surrender.

Provisions of Law Cited

Section 143 IPCSection 147 IPCSection 294(b) IPCSection 323 IPCSection 325 IPCSection 341 IPCSection 447 IPCSection 506(i) IPCSection 149 IPCSection 3(1)(r)(s) of the SC/ST (PoA) Act, 1989Section 18 of the SC/ST (PoA) Act, 1989Section 156(3) Cr.P.C.Section 307 IPCSection 438 Cr.P.C.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contend that the allegations are false and that Jerin and his companions attacked them first; there were delays in FIR registration; the incident involved alleged drug/alcohol use; arrest was unnecessary and Section 18 of the SC/ST (PoA) Act acts as a bar to anticipatory bail. They rely on Basheer v. State of Kerala to urge that anticipatory bail could be granted in appropriate circumstances or, at least, surrender with bail application before the Sessions Court.

Contentions of Respondents

The State and the complainant’s side argued that the appellants are not entitled to pre-arrest bail due to the seriousness of the offences and the protection for the SC community under the SC/ST (PoA) Act; allegations include aggravated assault and intimidation, and delays in police action were pointed out to defend keeping the appellants in custody.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Basheer v. State of Kerala	2020 (2) KLT 790	Distinguished	The High Court noted Basheer’s ratio is not applicable to the instant case due to different facts and context, particularly regarding anticipatory bail under the SC/ST PoA Act.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 07TH DAY OF JANUARY 2021 / 17TH POUSHA, 1942** ## **CRL.A.No.823 OF 2019** **CRMP 1449/2019 DATED 09-05-2019 OF SESSIONS COURT, KOTTAYAM CRIME NO.1312/2018 OF Kumarakom Police Station , Kottayam** ## **APPELLANT/S:** |**1**|**BINEESH.P.BABU**| |---|---| ||**AGED 26 YEARS**| ||**S/O.BABU, PANDARAPATHIL HOUSE, KANJIRAM P.O.,**| ||**KOTTAYAM.**| |**2**|**VISHNU.K.P.,**| ||**AGED 28 YEARS**| ||**S/O.PONNAPPAN, KUMBALANKERRY HOUSE, KANJIRAM**| ||**P.O., KOTTAYAM.**| |**3**|**RAJANEESH.P.T.,**| ||**AGED 30 YEARS**| ||**S/O.THANKAPPAN, PALATHINKAL HOUSE, KANJIRAM**| ||**P.O., KOTTAYAM.**| |**4**|**AJITH P.SASI,**| ||**AGED 23 YEARS**| ||**S/O.SASI, PALATHINKAL HOUSE, KANJIRAM P.O.,**| ||**KOTTAYAM.**| |**5**|**AKHIL.K.V.,**| ||**AGED 26 YEARS**| ||**S/O.VIJAYAN, VADAKKECHIRA HOUSE, KANJIRAM P.O.,**| ||**KOTTAYAM.**| **BY ADVS. SRI.T.P.PRADEEP SRI.S.SREEDEV SRI.P.K.SATHEES KUMAR** **Crl.Appeal No.823 of 2019** 2 ## **RESPONDENT/S:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH**| ||**COURT OF KERALA, ERNAKULAM.**| |**2**|**ADDL.R2 BIJI MOL P.K**| ||**NALLUVACKAL HOUSE, KILIROOR THIRUVAPPU,**| ||**KUMARAKOM, KANJIRAM P.O, KOTTAYAM.**| ||**IMPLEADED AS ADDITIONAL R2 AS PER ORDER DATED**| ||**19/11/2020 IN CRL.MA 1/2020.**| **R2 BY ADV. SRI.J.ABHILASH** ## **OTHER PRESENT:** ## **SR.PP.C.S.HRITHWIK** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15-** **12-2020, THE COURT ON 07-01-2021 DELIVERED THE FOLLOWING:** **Crl.Appeal No.823 of 2019** 3 ## **JUDGMENT** Dated this the 07[th] day of January, 2021 **Appellants are the accused in Crime No.1312 Of 2018 registered at the Kumarakom Police Station for offences punishable under Sections 143, 147, 294(b), 323, 325, 341, 447 and 506(i) r/w 149 of IPC and Section 3(1)(r)(s) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 ('the SC/ST (PoA) Act' for short).** **2. The prosecution allegation is that, at about 5.00 p.m. on 05.08.2018, the accused, with intention to cause bodily hurt to the de facto complainant's son (Jerin), formed themselves into an unlawful assembly armed with deadly weapons like chopper and iron rod and trespassed into the ancestral house of the de facto complainant/second respondent and assaulted Jerin. In spite of Jerin attempting to run away from the spot, he was** **Crl.Appeal No.823 of 2019** 4 **chased by the assailants and attacked brutally. When the de facto complainant tried to intervene, the accused caught hold of her churidar and attempted to disrobe her and abused the de facto complainant and Jerin, who belong to the Scheduled Caste, by calling their caste name. Even though appellants approached the Sessions Court seeking pre-arrest bail under Section 438, that application was dismissed by the impugned order. Hence, the appeal.** **3. Heard Sri.T.P.Pradeep, learned Counsel for the appellants, Sri.C.S.Hrithwik, learned Senior Public Prosecutor and Sri.J.Abhilash, learned Counsel for the second respondent.** **4. Learned Counsel for the appellants submitted that the allegations based on which crime is registered against the appellants, are patently false. It is submitted that Jerin and friends were found using drugs and consuming** **Crl.Appeal No.823 of 2019** 5 **alcohol in the first appellant's neighbourhood and when their action was questioned by the first appellant, Jerin and friends brutally attacked him. Since the first appellant suffered injuries at the hands of Jerin and friends, he was rushed to hospital. Enraged by the high handed action of Jerin and others, people of the locality, who had assembled at the spot, thrashed the assailants. Based on the first appellant's complaint, Crime No.838 of 2018 was registered at the Kumarakom Police Station against Jerin and others on 06.08.2018 itself for offences under Sections 341, 294(b), 323, 324, 308 r/w 34 of IPC. Crime No.1312 of 2018, at the instance of the second respondent was registered much later, that too on a private complaint filed by her being forwarded to the Police under Section 156(3) Cr.P.C. According to the learned Counsel, the inordinate delay in registering the FIR itself proves the falsity of** **Crl.Appeal No.823 of 2019** 6 **the allegations. The learned Counsel contended that these aspects, though pointed out before the learned Sessions Judge, were not taken into consideration. It is argued that the alleged crime having taken place on 05.08.2018, custodial interrogation of the appellants is not required and no purpose will be served by their arrest and remand to custody. Drawing attention to Annexure B certificate, it is submitted that the first appellant also belong to the Scheduled Caste and hence, cannot be prosecuted for offences under the SC/ST (PoA) Act.** **5. The learned Public Prosecutor as well as the learned Counsel for the second respondent refuted the contentions and argued that the appellants are not entitled for pre-arrest bail in view of the prohibition contained in Section 18 of the SC/ST (PoA) Act. According to the learned Counsel for the second respondent, the appellants** **Crl.Appeal No.823 of 2019** 7 **had brutally attacked Jerin and in spite of the Police being informed, no crime was registered against them due to political intervention. The learned Counsel submitted that, even after registering the crime, the Police has not taken efforts to arrest the appellants. It is pointed out that Jerin had suffered fracture to his nasal bone and the Police ought to have incorporated the offence under Section 307 IPC also.** **6. In reply, learned Counsel for the appellants submitted that Section 18 of the Act is not an absolute bar against grant of pre-arrest bail. In support of this contention, reliance is placed on the decision of this Court in** _**Basheer v. State of Kerala [2020 (2) KLT 790].**_ **Finally it is submitted that even if this Court is not inclined to grant pre-arrest bail, the appellants may be permitted to surrender and seek bail before the jurisdictional court.** **Crl.Appeal No.823 of 2019** 8 **7. In spite of the strenuous arguments put forth by the learned Counsel for the appellants, I am of the firm opinion that this is not a case for granting anticipatory bail, especially in view of the embargo contained in Section 18 of the Act. The facts in** _**Basheer**_ **are entirely different and therefore, the ratio of that decision cannot be made applicable to the instant case. At the same time, it has to be noted that serious offences are alleged against Jerin and others in Crime No.838 of 2018 registered against them at Kumarakom Police Station. Further, there is some merit in the contention that the instant crime was registered much after the alleged incident.** **8. Therefore, while rejecting the challenge against the impugned order and the prayer for anticipatory bail to the appellants are permitted to surrender before the Sessions Court, Kottayam and to move an application for bail with advance** **Crl.Appeal No.823 of 2019** 9 **notice to the Public Prosecutor and the second respondent. In such event, the learned Sessions Judge may consider the bail application on the date of surrender and pass appropriate orders thereon.** **The Criminal Appeal is dismissed with the** **above direction.** **Sd/V.G.ARUN JUDGE** Scl/07.01