Binu S. Nair; Indira Devi; Bindu S. Nair v. State of Kerala represented by Public Prosecutor and Priya G.S.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **MONDAY, THE 27[TH] DAY OF NOVEMBER 2023 / 6TH AGRAHAYANA,** ## **1945** ## **CRL.A NO. 1605 OF 2023** **CRIME NO.1342/2023 of Medical College Police Station,** ## **Thiruvananthapuram** **CRMP 61/2023 OF SPECIAL JUDGE COURT FOR TRIAL OF SC/ST** ## **CASES, THIRUVANANTHAPURAM** ## **APPELLANTS/ACCUSED 1 TO 3:** - **1 BINU S. NAIR AGED 39 YEARS S/O.INDIRA DEVI RESIDING AT "BINU BHAVANAM", MANNADI P.O, KADAMPANADU, PATHNAMTHITTA, PIN - 691530** - **2 INDIRA DEVI AGED 72 YEARS W/O.SIVARAMAN NAIR RESIDING AT "BINU BHAVANAM", MANNADI P.O, KADAMPANADU, PATHNAMTHITTA, PIN - 691530** - **3 BINDHU S. NAIR AGED 36 YEARS W/O.HARIKUMAR RESIDING AT "NAVANEETHAM", MANNADI P.O, KADAMPANADU, PATHNAMTHITTA, PIN - 691530 BY ADVS. SASTHAMANGALAM S. AJITHKUMAR V.S.THOSHIN SATHEESH MOHANAN SREEJITH S. NAIR MAHIMA** ## **RESPONDENTS/STATE/DEFACTO COMPLAINANT:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031** - **2 PRIYA G.S. AGED 33 YEARS** 2 Crl.Appeal No.1605 of 2023 **W/O.BINU S. NAIR RESIDING AT PULLIYIL VEEDU, TC-6/326, THRUVICKKAL, MEDICAL COLLEGE P.O, THIRUVANANTHAPURAM, PIN - 695011 BY ADVS. George Mathew KARAMAYIL M.D.SASIKUMARAN(S-237) ELSA DENNY PINDIS(E-28) SUNIL KUMAR A.G(K/000741/2003) MATHEW K.T.(K/001047/2018) GEORGE K.V.(K/000060/2019) STEPHY K REGI(K/001025/2020) MEDHA B.S.(K/001625/2023)** **SMT.seena c.-GOVERNMENT PLEADER** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 22.11.2023, THE COURT ON 27.11.2023 DELIVERED THE FOLLOWING:** 3 Crl.Appeal No.1605 of 2023 ## **P.G. AJITHKUMAR, J.** **--------------------------------------------------Crl.Appeal No.1605 of 2023 ---------------------------------------------------Dated this the 27[th] day of November, 2023** ## **JUDGMENT** This is an appeal under Section 14A of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (SC/ST Act). The appellants are the accused in Crime No.1342 of 2023 of the Medical College Police, Thiruvananthapuram. They filed Crl.M.P.No.61 of 2023 before the Special Court for trial of offences under SC/ST (POA) Act, Nedumangad, seeking anticipatory bail. That petition was dismissed as per the order dated 19.10.2023. Challenging that order, this appeal has been filed. 2. Heard the learned counsel for the appellants and the learned Public Prosecutor. Despite giving notice, the 2[nd] respondent/de facto complainant did not choose to appear before this Court. 3. The 2[nd] respondent is the wife of the 1[st] appellant. Appellants 2 and 3 are mother and sister of the 1[st] appellant. The 1[st] appellant married the 2[nd] respondent on 11.07.2019. 4 Crl.Appeal No.1605 of 2023 They have a child. The 2[nd] respondent belongs to a Scheduled Caste, whereas the appellants do not. The 2[nd] respondent filed a complaint before the Kerala State Commission for Scheduled Caste and Scheduled Tribe alleging that she was assaulted by the 1[st] appellant and that she was subjected to harassment and ridicule on account of her caste. The said complaint was forwarded to the police and that resulted in registration of crime No.1342 of 2022 alleging offences punishable under Sections 498A of the Indian Penal Code, 1860 (IPC) and under Section 3(1)(c) of the SC/ST Act. Going by the allegations in the First Information Statement and the FIR the offence that constitutes under Section 3(1)(r) and/or Section 3(1)(s) and not under Section 3(1)(c) of the SC/ST Act. 4. The court below, after hearing both sides, took the view that the materials on record _prima facie_ revealed commission of the offence under the SC/ST Act and therefore there is bar to entertain the application for anticipatory bail. That resulted in dismissal of the application. 5. The learned counsel for the appellants would submit that the dispute is essentially and fully relating to the 5 Crl.Appeal No.1605 of 2023 matrimonial relationship between the 1[st] appellant and the 2[nd] respondent and the complaint was lodged with the ulterior motive of harassing the appellants. It is also submitted that the way in which the crime was registered itself shows the falsity of the allegations. The learned counsel further would submit that the bar created by Section 18 of the SC/ST Act shall not be a tool for putting innocent persons behind bars. If the materials on record are considered in a proper perspective, in the view of the learned counsel, it could only be said that no offence under the SC/ST Act is revealed and therefore there is no bar for granting anticipatory bail to the appellant. 6. The learned Public Prosecutor, on the other hand, would submit that the 2[nd] respondent was harassed and ridiculed by the appellants in the presence of others on several occasions, and therefore, the offence under the SC/ST Act gets attracted. 7. In **Vilas Pandurang Pawar v. State of Maharashtra [(2012) 8 SCC 795]** , the Apex Court held that 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 6 Crl.Appeal No.1605 of 2023 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 intimidation with intent to humiliate by calling with caste name, the accused persons are not entitled to anticipatory bail. Moreover, while considering 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. 8. This principle was followed by this Court **Ahammedkutty Pothiyil Thottiparambil v. Union of India and others [MANU/KE/1783/2023]** . This Court explained the position of law that Section 18 does not apply to cases where there is no _prima facie_ case or patent false implication or when the allegation is motivated for extraneous reasons. It was observed that in essence, Section 18 of the SC/ST Act does not bar absolutely the grant of anticipatory bail. It is explained,- “20. xx xx xx As already noticed, the question considered in Subhash Kashinath Mahajan was whether there is an absolute bar in the SC/ST Act against grant of anticipatory 7 Crl.Appeal No.1605 of 2023 bail and the question was answered in the negative. A close and meticulous reading of the decision of the Apex Court in Subhash Kashinath Mahajan would indicate that the reasons in essence, on the basis of which the Apex Court held that the SC/ST Act does not bar absolutely the grant of anticipatory bail, are the following: i) The provisions of the SC/ST Act need to be given a purposive interpretation in the context of its background and its object to achieve the purpose of law. ii) In the background of the prevailing social conditions, if perpetrators of atrocities against members of SC/ST communities are granted anticipatory bail, they would not only threaten and intimidate the victims and prevent or obstruct them from prosecuting the offenders, but would also misuse their liberty and terrorise the victims and prevent investigation; iii) In statutes where an identical provision excluding the application of Section 438 of the Code exists, there are restrictions on accused for being released on regular bail also, whereas there is no such restriction in the SC/ST Act in the matter of releasing the accused on regular bail. The position in SC/ST Act is that after rejecting an application under Section 438 of the Code, the court can grant regular bail immediately after the arrest and there is no logical rationale behind the situation of putting a fetter on grant of anticipatory bail when there is no such restriction for grant of regular bail. iv) It has been judicially acknowledged that there 8 Crl.Appeal No.1605 of 2023 have been instances of abuse of the provisions of the Act for settling private disputes. There are also instances of complaints being lodged against public servants/quasijudicial/judicial officers with oblique motive for satisfaction of vested interests. v) The Act has become an instrument to blackmail or to wreak personal vengeance. The Act is also being used to deter public servants from performing their bona fide duties. Consequently, innocent citizens are termed as accused, which is not intended by the legislature. As such if exclusion of the application of Section 438 Of the Code is not limited to genuine cases, there will be no protection to innocent citizens.” 9. In **Prathvi Raj Chauhan v. Union of India and others [(2020) 4 SCC 727]** a three-Judge of the Apex Court explained how the provisions of the SC/ST Act are to be approached. It was held that if the complaint does not make out a _prima facie_ for applicability of the provisions of the SC/ST Act, the bar created under Section 18 shall not apply. 10. Therefore, the endeavor shall be to find whether the allegations in the F.I. statement and materials collected by the investigation agency made out a _prima facie_ case regarding commission of an offence under the SC/ST Act. From the allegations in the F.I.statement what reveals is that the 1[st] 9 Crl.Appeal No.1605 of 2023 appellant harassed and manhandled the 2[nd] respondent. There is allegation that not only the 1[st] appellant, but others also behaved in such a manner that the dowry given was insufficient. Those acts predominantly are in the nature of matrimonial cruelty and cannot be connected to the provisions under the SC/ST Act. Of course, there is allegation that the 2[nd] respondent was harassed by appellants 2 and 3 stating her caste name. But from her complaint, it cannot be seen that such harassment was perpetrated in the presence of any member of public. Other than members of the family, nobody was a witnessed to any such ridicule or harassment. In such circumstances, it cannot _prima facie_ be said that an offence under Section 3(1)(r) or 3(1) (s) of the SC/ST Act has been constituted. 11. The offences alleged against the 1[st] appellant include an offence under Section 323 of the IPC also. Being the husband, the 1[st] appellant certainly knows the caste of the 2[nd] respondent. When such an offence is committed, that further amounts to an offence under Section 3(2)(va) of the SC/ST Act. From a perusal of the case diary, it is revealed that such an offence has also been added and a report in that regard was 10 Crl.Appeal No.1605 of 2023 submitted. Taking all such aspects into that account, I am of the opinion that insofar as the appellants 2 and 3 are concerned, the materials on record are insufficient to make out _prima facie_ an offence under the SC/ST Act. Whereas, materials are sufficient to show _prima facie_ that the 1[st] appellant has committed offences under the SC/ST Act. In the said circumstances, this appeal is allowed in part and the application for anticipatory bail as regards the 1[st] appellant is dismissed. Application of Appellant Nos.2 and 3 for anticipatory bail is allowed. In the event of the appellants 2 and 3 being arrested, they shall be released on bail on the execution of a bond for Rs.50,000/- (Rupees fifty thousand only) each, with two solvent sureties for the like amount each, to the satisfaction of the investigating officer, and on the condition that they shall appear before the investigating officer as and when called for. Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr