Criminal Appeal Nos. 92 & 95 of 2024: Nithin Antony v. State of Kerala & Rahul Ravi; Evins Antony & Agish K.A v. State of Kerala & Rahul Ravi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 20[TH] DAY OF FEBRUARY 2024 / 1ST PHALGUNA, 1945** ## **CRL.A NO. 92 OF 2024** **CRIME NO.1591/2023 OF MULAVUKAD POLICE STATION, ERNAKULAM AGAINST THE ORDER/JUDGMENT IN CRMC 2850/2023 OF SESSIONS/SPECIAL COURT FOR SCHEDULED CASTES AND SCHEDULED TRIBES (PREVENTION OF ATROCITIES) ACT, 1989, ERNAKULAM DIVISION** ## **APPELLANT/ACCUSED NO.1:** NITHIN ANTONY, AGED 32 YEARS, S/O ANTONY, KURISINGIAL HOUSE, VYPIN, AZHEEKAL.P.O., PUTHUVYPE, ERNAKULAM., PIN - 682508 BY ADV V.K.DINESH KUMAR ## **RESPONDENTS/STATE/DEFACTO COMPLAINANT:** 1 STATE OF KLERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2 RAHUL RAVI, AGED 32 YEARS, S/O RAVI, PALLATHU HOUSE,CHERUVYPPU KARA, KUZHIPALLY VILLAGE, AYYAMBILLY P.O., ERNAKULAM., PIN – 681501 BY ADV SRI.G.SUDHEER, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 20.02.2024, ALONG WITH CRL.A.95/2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A Nos.92 & 95 of 2024 2 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 20[TH] DAY OF FEBRUARY 2024 / 1ST PHALGUNA, 1945 CRL.A NO. 95 OF 2024** **CRIME NO.1591/2023 OF MULAVUKAD POLICE STATION, ERNAKULAM AGAINST THE ORDER/JUDGMENT CRMC 2896/2023 OF SESSIONS/SPECIAL COURT FOR SCHEDULED CASTES AND SCHEDULED TRIBES (PREVENTION OF ATROCITIES) ACT, 1989, ERNAKULAM** **DIVISION** ## **APPELLANTS/ACCUSED NOS.2 AND 3:** 1 EVINS ANTONY, AGED 33 YEARS, S/O ANTONY PAUL, KAYTHAVALAPPIL HOUSE, AZHEEKKAL.P.O.,MALIPURAM, ERNAKULAM., PIN - 682511 2 AGISH K.A, AGED 35 YEARS, S/O ANTREWS, AGED 35 YEARS, KURISHINGAL HOUSE, PUTHUVYPU,ELAMKUNNAPUZA, AZHEEKAL.P.O.,ERNAKULAM., PIN - 682508 BY ADV V.K.DINESH KUMAR ## **RESPONDENTS/STATE/DEFACTO COMPLAINANT:** 1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM., PIN - 682031 2 RAHUL RAVI, AGED 32 YEARS, S/O RAVI, PALLATHU HOUSE,CHERUVYPPU KARA, KUZHIPALLY VILLAGE, AYYAMBILLY P.O., ERNAKULAM, PIN – 681501 BY ADV SRI.G.SUDHEER, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 20.02.2024, ALONG WITH CRL.A.92/2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A Nos.92 & 95 of 2024 3 ## K.BABU, J. -------------------------------------- ## Criminal Appeal Nos.92 & 95 of 2024 --------------------------------------Dated this the 20[th] day of February, 2024 ## JUDGMENT These two appeals are filed under Section 14-A of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. The order dated 19.10.2023 in Crl.M.C No.2850/2023 and the order dated 30.10.2023 in Crl.A No.2896/2023 passed by the Sessions/Special Court for Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Ernakulam Division are under challenge in these appeals. The appellant in Crl.A No.92/2024 is accused No.1 and the appellants in Crl.A No.95/2024 are accused Nos.2 and 3 respectively in Crime No.1591/2023 of Mulavukad Police Station. 2. The appellants are alleged to have committed the offences punishable under Sections 341, 323, 324, 308 and 506 read with Section 34 of IPC and Sections 3(1)(r), 3(1)(s) and 3(2)(va) of the SC/ST Act. 3. The prosecution allegations are as follows: Crl.A Nos.92 & 95 of 2024 4 The defacto complainant (respondent No.2) belongs to scheduled caste. The appellants are working under the defacto complainant. The defacto complainant questioned the appellants when they failed to discharge their official duties. Due to this enmity, on 12.09.2023 around 5.00 p.m the appellants and the other accused wrongfully restrained the defacto complainant and his friend while they were returning to their home and humiliated him by calling his caste name in public view. The defacto complainant got down from his vehicle. Accused No.1 wrongfully confined him. Accused No.3 beat him on his head using iron pipe. The defacto complainant evaded it by resisting with his hand. He sustained injuries on his eyebrow. Accused No.2 inflicted injuries to him using a stone and humiliated him by calling his caste name. Accused No.4 also humiliated him by calling his caste name. The accused criminally intimidated the defacto complainant and thus committed the offences. 4. The appellants preferred the applications under Section 438 Cr.PC before the Trial Court. The learned Sessions Judge rejected the applications. Crl.A Nos.92 & 95 of 2024 5 5. Notice was served on respondent No.2. 6. Heard the learned counsel for the appellants and the learned Public Prosecutor. 7. The learned counsel for the appellants submitted that the allegations levelled by the prosecution are false. 8. The learned Public Prosecutor submitted that the applications seeking anticipatory bail are barred under Section 18 of the Act. 9. The learned Public Prosecutor further submitted that the custodial interrogation of the appellants is required as the weapons allegedly used are to be recovered. 10. The learned counsel for the appellants submitted that the custodial interrogation of the appellants is not required in view of the allegations levelled by the prosecution. 11. I have gone through the case diary. The appellants and the other accused are alleged to have committed the offences inter alia under Sections 3(1)(r) and 3(1)(s) of the Act. In the FIS and the other materials placed before the Court, the defacto complainant has specifically alleged the ingredients to constitute the offence Crl.A Nos.92 & 95 of 2024 6 under the Act. The prosecution could make out a prima facie case for the applicability of the penal provisions of the Act. Therefore, the bar contained in Section 18 of the Act shall apply. 12. The appellants are also alleged to have committed the offences including attempt to murder. The prosecution placed the materials to show that the appellants used deadly weapons. 13. 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 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 Crl.A Nos.92 & 95 of 2024 7 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.” 14. Having considered the entire circumstances, I am of the view that the appellants are not entitled to anticipatory bail. Therefore, I find no reason to interfere with the impugned orders. The appellants shall appear before the learned Special Judge within one week from this day. If the appellants file application seeking regular bail, the learned Special Judge shall consider and dispose of the same, preferably on the date of consideration itself. On receipt of copy of the application, the learned Public Prosecutor shall serve notice to the victim through the SHO concerned. Sd/K.BABU, JUDGE KAS Crl.A Nos.92 & 95 of 2024 8 ## **APPENDIX OF CRL.A 92/2024** PETITIONER ANNEXURES Annexure 1 TRUE COPY OF FIR IN CRIME NO 1591/2023 OF MULAVUKAD POLICE STATION Crl.A Nos.92 & 95 of 2024 9 ## **APPENDIX OF CRL.A 95/2024** PETITIONER ANNEXURES Annexure 1 TRUE COPY OF FIR IN CRIME NO.1591/2023 OF MULAVUKAD POLICE STATION