Crl.A. 1753 of 2023

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **TUESDAY, THE 5[TH] DAY OF DECEMBER 2023 / 14TH AGRAHAYANA,** ## **1945** ## **CRL.A NO. 1753 OF 2023** **CRIME NO.1131/2020 OF Kumily Police Station, Idukki CRMC NO.866/2023 OF DISTRICT COURT & SESSIONS** ## **COURT,THODUPUZHA** ## **APPELLANTS/PETITIONER 1 TO 4/ACCUSED NOS 1 TO 4:** - **1 MR.K.D.OUSEPH , AGED 58 YEARS** - **S/O.DEVASSY, RESIDING AT KARIMATHI HOUSE, CHOVVARA KARA, CHENGAMANAD VILLAGE, AVANAMKODU, ALUVA TALUK, ERNAKULAM DISTRICT, PIN - 688571** - **2 MR.K.P.SANU @ JOHN KUTTAN, AGED 53 YEARS S/O.PUSHKARAN, RESIDING AT KOCHUTHARAYIL HOUSE , DYMOCK P.O., VANDIPERIYAR, PERIYAR VILLAGE, IDUKKI DISTRICT, PIN - 685533** - **3 MR.KUMAR P, AGED 32 YEARS S/O.PALRAJ, RESIDING AT ESTATE QUARTERS, HML MOONGALAAR ESTATE, DYMOCK, PERIYAR VILLAGE, IDUKKI DISTRICT. (HAVING PERMANENT ADDRESS AT MANALAI DIVISION, LOCKHART ESTATE, DEVIKULAM P.O., MUNNAR, IDUKKI -, PIN - 685613** **4 MR.RAJAN A, AGED 61 YEARS S/O.AYYAPPAN PILLAI, ANAKUZHI PUTHUVAL, DYMOCK, PERIYAR VILLAGE, IDUKKI DISTRICT,PIN - 685533 BY ADVS. P.MARTIN JOSE P.PRIJITH THOMAS P.KURUVILLA R.GITHESH AJAY BEN JOSE MANJUNATH MENON SACHIN JACOB AMBAT HARIKRISHNAN S. S.SREEKUMAR (SR.)** 2 Crl.A.1753 of 2023 ## **RESPONDENT/S:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** - **2 THE DEPUTY SUPERINTENDENT OF POLICE KATTAPANA IDUKKI DISTRICT-, PIN - 685508** - **3 MR.PRAKASH, AGED 40 YEARS S/O.MANICKAM, HML ANAKUZHI ESTATE, DYMOCK, PERIYAR VILLAGE, IDUKKI DISTRICT-, PIN - 685533** ## **SMT. SEENA C.-GOVERNMENT PLEADER** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 29.11.2023, THE COURT ON 05.12.2023 DELIVERED THE FOLLOWING:** 3 ## Crl.A.1753 of 2023 ## **P.G. AJITHKUMAR, J.** **----------------------------------------------------------Crl.Appeal No.1753 of 2023** **----------------------------------------------------------Dated this the 5[th] day of December, 2023** ## **J U D G M E N T** The appellants are the accused in Crime No.1131 of 2020 of Kumily Police Station. Their application for anticipatory bail was dismissed by the Special Court for the trial of offences under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 2015 (SC/ ST Act), Thodupuzha. That order is under challenge in this appeal filed under Section 14A of the SC/ST Act. 2. Crime No.1131 of 2020 was registered based on a statement of the 3[rd] respondent. He belongs to a scheduled caste. His parents were the labourers in Moongalaar estate. They retired from service. They were in occupation of a quarters in the estate. The 3[rd] respondent claims that since that quarters was dilapidated, another one was allotted to them by the manager of the estate, where he along with members of his family and parents were residing. There was assurance that the 3[rd] respondent would be provided with 4 ## Crl.A.1753 of 2023 employment in the estate. It is alleged that the appellants with the object of evicting the 3[rd] respondent and members of his family forcibly demolished the building and in that course the 3[rd] respondent, his wife, children and parents sustained injuries. The further allegation is that the 3[rd] respondent was abused and intimidated by calling his caste name. 3. Appellants filed Crl.M.C.No.866 of 2023 seeking anticipatory bail. The special court after considering the facts of the case in the light of the law laid down by this court in **Basheer K.M and Others v Rajani K.T and Others [2022** **(6) KHC 619]** , dismissed the petition. The appellants assail the said order. 4. Heard the learned Senior Counsel appearing for the appellants and the learned Public Prosecutor. 5. On receipt of the notice, the 3[rd] respondent appeared in person and submitted his objections. 6. The offences alleged against the appellants are punishable under Sections 451, 294(b), 323 r/w 34 of the IPC and Sections 3(i)(r),(s), (z) and Section 3(2)(va) of the SC / ST Act. The learned senior counsel for the appellants 5 ## Crl.A.1753 of 2023 would submit that from the materials on record it is evident that the appellants who are the manager and members of staff in the estate took action for eviction of unauthorized occupation of the quarters building occupied by the 3[rd] respondent through lawful means and the 3[rd] respondent with the ulterior motive of compelling the appellants to employ him in the estate foisted the case. It is pointed out that the complaint which was lodged more than one month after the date of the alleged incident was investigated into and found to be false. A final report was submitted to that effect. Thereafter, a further investigation was taken out and therefore the appellants are apprehending arrest. It is submitted that other than a dispute, as mentioned above, no incident as alleged by the 3[rd] respondent had occurred and therefore, this is a case, where the bar under Section 18 of the SC / ST Act does not apply. Whereas the court below, on a wrong understanding of the facts dismissed the petition. 7. What the 3[rd] respondent submitted is that immediately after the incident, he had approached the police 6 ## Crl.A.1753 of 2023 with his complaint, but in consideration of the assurance by the 1[st] appellant that he would be provided employment, he did not pursue his complaint. He also stated that he as well as his mother and children sustained injuries in the incident for which they underwent treatment. It is also stated that the appellants very clandestinely attempted to demolish the building and that too with the knowledge that he is a member of a scheduled caste. 8. The learned Public Prosecutor made available for the perusal the case diary and objected grant of bail to the appellants stating that in the further investigation, sufficient materials are collected to show the commission of the offence by the appellants. 9. In **Subhash Kashinath Mahajan v. State of Maharashtra[(2018) 6 SCC 454],** the Apex Court after considering the provisions of the SC/ST Act and various decisions including the one in **N.T.Desai v. State of Gujarat [1997(2)GLR 942],** issued a few guidelines for dealing with the applications for anticipatory bail, arrest of public servant and quashing of FIRs concerning offences 7 ## Crl.A.1753 of 2023 under the SC/ST Act. In **Union of India vs State of Maharashtra [2020(4) SCC 761],** a three-judge Bench of the Apex Court reviewed the aforesaid decision and directions Nos. iii and iv in that decision were recalled. Consequently, direction No.v was held to fade away. Direction No.2 however remains which reads: “ii) There is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide. We approve the view taken and approach of the Gujarat High Court in **Pankaj D Suthar** (supra) and **Dr.NTDesai** (supra) and clarify the judgments of this Court in **Balothia** (supra) and **Manju Devi** (supra);” 10. A Three judge bench of the Apex Court in **Prathvi Raj Chauhan vs. Union of India[ (2020) 4 SCC 727],** observed that if a prima facie case has not been made out attracting the provisions of SC/ST Act, the bar created by Section 18 on anticipatory bail is not attracted. The Apex Court reiterated the said principle in **Haji Iqbal v State of UP and Others [AIR 2023 SC 3964]** . The Apex Court also explained how the prosecution case has to be approached when there is an allegation that the complaint was instituted 8 ## Crl.A.1753 of 2023 with the ulterior motive of wreaking vengeance. It was held that if there is an allegation that the prosecution was launched with the ulterior motive of wreaking vengeance and proves manifestly frivolous or vexatious, the court owes a duty to look into the FIR with care and a little more closely. It was also observed that once the complainant decides to proceed against the accused with an ulterior motive, for wreaking personal vengeance, etc, then he would ensure that the complaint is very well drafted with all necessary pleadings. 11. Keeping the above in mind, the complaint in this case and the attending circumstances are to be considered. From the materials on record, it is evident that the 3[rd] respondent and members of his family occupy the quarters in the estate without any authority. The estate management even filed a suit for excluding them from the quarters. In the FI statement itself, it is stated that he initially did not pursue his complaint. The investigation conducted initially culminated in a finding that the complaint was false. Indisputably, the 1[st] appellant was the manager and other 9 ## Crl.A.1753 of 2023 appellants were the members of the staff in the estate. It is submitted that appellants 2 to 4 already left the service in the estate. It indicates that the appellants did not have any personal interest in the matter of evicting the 3[rd] respondent from the quarters. Therefore it is not possible to find that the appellants committed the alleged acts of offence intending to cause any harm or hurt to the 3[rd] respondent or the members of his family. From the wound certificates available in the case diary, it is seen that there was no serious injury to any person. Conspicuously, there is no mention of assault by any of the appellants in the would certificate also. In such circumstances, I am of the view that it is not possible to find prima facie that the appellants have committed offences under the SC/ST Act as alleged, which follows that bar under Section 18 of the SC/ST Act does not apply to this case. 12. Considering the nature of the offence, custodial interrogation of the appellants is not required. Therefore the appellant can be granted anticipatory bail. Accordingly, this appeal is allowed. The impugned order is set aside. The 10 Crl.A.1753 of 2023 appellants are directed to surrender before the investigating officer within two weeks. After interrogation and in the event of them being arrested, they shall be released on bail on the execution of bonds for Rs.50,000/- (Rupees fifty thousand only), with two solvent sureties for the like amount each, to the satisfaction of the investigating officer, and on the following conditions: - (i) They shall not influence or intimidate the defacto complainant or witnesses or tamper with evidence; - (ii) They shall appear before the investigating officer as and when called for; and - (iii) During the bail period, they shall not get involved in any offence. In case of breach of the bail conditions, the prosecution shall be at liberty to apply for cancellation of the bail before the jurisdictional court. It is made clear that the observations made above are to decide the bail application only. Sd/- ## **P.G. AJITHKUMAR, JUDGE** PV 11 Crl.A.1753 of 2023 ## **APPENDIX OF CRL.A 1753/2023** ## **PETITIONER ANNEXURES** **Annexure 1 TRUE COPY OF COMPLAINT DATED 01-09-2020 GIVEN BY THE 2ND APPELLANT TO THE 1ST APPELLANT.** - **Annexure II TRUE COPY OF THE LETTER DATED 02-092020 ALONG WITH COVERING LETTER ISSUED BY THE 1ST APPELLANT FORWARDING ANNEXURE-I** **Annexure III TRUE COPY OF FIR IN CRIME NO.1131 OF 2020 OF KUMILY POLICE STATION. Annexure IV TRUE COPY OF REFER REPORT DATED 17-022021 FILED BY THE 2ND RESPONDENT BEFORE THE SESSIONS COURT, THODUPUZHA.** - **Annexure V TRUE COPY OF THE OBJECTION TO ANNEXUREIV REFER REPORT AS CRL.M.P.NO.593 OF 2022 DATED 09-03-2022 FILED BY THE 3RD RESPONDENT** **Annexure VI TRUE COPY OF ORDER IN SPECIAL COURT DATED 07-09-2023 ALLOWED CRL.M.P.NO.2386 OF 2023** - **Annexure VII TRUE COPY OF THE PLAINT IN O.S NO.274 OF 2020 FILED BEFORE THE MUNSIFFS COURT, PEEREMEDU.** - **Annexure VIII TRUE COPY OF THE MEMORANDUM OF BAIL APPLICATION AS CRL.M.C NO. 866 OF 2023 FILED BEFORE THE SPECIAL COURT, THODUPUZHA.** **Annexure IX CERTIFIED COPY OF THE ORDER DATED 1511-2023 IN CRL.M.C NO. 866 OF 2023 OF THE SPECIAL COURT, THODUPUZHA.**