CRL.A No.1012 of 2022 (High Court of Kerala, Ernakulam)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **THURSDAY, THE 17[TH] DAY OF NOVEMBER 2022 / 26TH KARTHIKA,** **1944** ## **CRL.A NO. 1012 OF 2022** **AGAINST THE ORDER DATED 28.09.2022 IN** **CRL.M.P.NO.4066/2022 ON THE FILE OF SESSIONS JUDGE,** ## **PATHANAMTHITTA** **CRIME NO.1250 OF 2021 OF PATHANAMTHITTA POLICE STATION ON THE FILE OF DISTRICT AND SESSIONS JUDGE(SPECIAL COURT FOR SC/ST (POA) CASES, PATHANAMTHITTA** ## **APPELLANTS/PETITIONERS/ACCUSED NOS.5 & 6 :** **1 RAHUL KRISHNAN @ KANNAN, AGED 29 YEARS, S/O.UNNIKRISHNAN NAIR, SARASWATHI VILASAM, ELAPPUPARA PO , V KOTTAYAM VILLAGE, PATHANAMTHITTA DISTRICT, PIN - 689656 2 RAKESH KRISHNAN AGED 29 YEARS S/O.RADHAKRISHNAN, REVATHI BHAVANAM, ELAKOLLOOR PO , PRAMADAM VILLAGE, PATHANAMTHITTA DISTRICT, PIN - 689691 BY ADVS. M.T.SURESHKUMAR SHRI.R.RANJITH,SC,KOOVAPPADY GRAMA PANCH SMITHA PHILIPOSE P.R.JAYASANKAR DARSAN SOMANATH MANJUSHA K SREELAKSHMI SABU** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT :** **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** Crl.Appeal No.1012 of 2022 -:2:- **2 PRASAD, AGED 52 YEARS, S/O GOPALAN, PANACKAL VEEDU, MYLADUMPARA, KUMBAZHA P.O., PATHANAMTHITTA DISTRICT, PIN-689653 3 THULSI, AGED 44 YEARS, W/O.PRASAD, PANACKAL VEEDU, MYLADUMPARA, KUMBAZHA P.O, PATHANAMTHITTA DISTRICT, PIN - 689653 BY ADVS. SRI.JOSE ANTONY BY SRI.RENJIT GEORGE, SR.PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 17.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.Appeal No.1012 of 2022 -:3:- ## **A.BADHARUDEEN, J.** **-------------------------------------------------------Crl.Appeal No.1012 of 2022 -------------------------------------------------------Dated this the 17[th] day of November, 2022** ## **J U D G M E N T** This is an appeal filed under Section 14A of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989((hereinafter will be referred as SC/ST Act for convenience). In this appeal, the accused Nos.5 and 6 in Crime No.1250 of 2021 on the file of the Pathanamthitta Police Station challenges Annexure-A6 order passed by the Special Judge, Pathanamthitta under the SC/ST Act dismissing the anticipatory bail plea moved by the appellants. 2. One among the victims appeared on last posting and submitted that she did not know the involvement and identity of the present petitioners in Crl.Appeal No.1012 of 2022 -:4:- the crime. 3. At this juncture, on the previous posting date, the learned Public Prosecutor pointed out that another injured, who sustained serious injuries and fracture in this occurence, has been in Central Prison, Thiruvananthapuram and the appellants not disclosed this fact before this Court and they influenced the wife of this man. In view of this submission, today, the presence of the person/the victim, who has been in jail, was secured through online mode and he submitted that the proceedings shall go on and the appellants are also included in the overt acts. He also opposed grant of anticipatory bail to the appellants. 4. In this context, it is submitted by the learned Public Prosecutor that the other lady, who is the wife of the person in jail, was won over by some payment and in fact, very serious offences are alleged -:5:- Crl.Appeal No.1012 of 2022 and therefore, anticipatory bail cannot be granted. 5. The learned counsel for the appellants pressed for grant of anticipatory bail to the appellants raising plea of innocence. He would submit that the appellants may be permitted to surrender before the trial court. 6. The prosecution allegation in brief is that the accused, who do not belong to Scheduled Caste or Scheduled Tribe community, formed themselves into an unlawful assembly with the knowledge of being members thereof, armed with deadly weapons like wooden lath and granite pieces, trespassed into the courtyard of the defacto complainant, who is a member of Hindu Kurava (Scheduled Caste), named, Panackal House with building No.XVI/126 situated at Myladumpara in Pathanamthitta Village at 16.30 Crl.Appeal No.1012 of 2022 -:6:- hours on 21-08-2021. In prosecution of the common object into an unlawful assembly, the 1[st] accused uttered obscene words, as the defacto complainant got out into the courtyard, the 1[st] accused pelted a piece of granite at his face and made him fall on the ground, the 1[st] accused beat him with a piece of lath on the left hand and all over the body and causing fracture to the left hand and dislocation of three teeth on the left upper side and injury to the bone, while the 2[nd] accused beat the defacto complainant with a lath on his back, as the defacto complainant's wife came to defend, she was also beaten with a lath by the 1[st] accused and injured her hand, the 3[rd] accused pelted stone and wounded the leg of the defacto complainant while the 1[st] accused uttered obscene words and the accused Nos. 4 to 7 pelted stones at the defacto complainant and his wife, in furtherance of their common intention and thereby committed offences punishable u/ss. 143, 147, 148, Crl.Appeal No.1012 of 2022 -:7:- 447, 294(b), 324 and 326 IPC r/w Sec.149 of IPC and Sec. 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act. 7. It is to be noted that grant of anticipatory bail in cases involving offences under the SC/ST Act is specifically barred, as pointed out by the learned Public Prosecutor, in view of the mandate of Sections 18 and 18A of the SC/ST Act. 8. It has been settled by the Supreme Court in **Prathvi Raj Chauhan v. Union of India (UOI) and Others** [2020 (2) KHC 423 : AIR 2020 SC 1036 : (2020) 4 SCC 727 : MANU/SC/0157/2020] and it was held that as far as the provision of Section 18-A and anticipatory bail is concerned, the judgment of Mishra,J. has stated that in cases where no prima facie materials exist warranting arrest in a complaint, the court has the inherent power to direct a pre-arrest bail. Therefore, the law is no more res integra on the point, when the Crl.Appeal No.1012 of 2022 -:8:- prosecution allegation make a prima facie, anticipatory bail cannot be granted. 9. Since the law is settled on the point that when there is a prima facie case, anticipatory bail in cases involving offences under Section 18 and 18A of SC/ST Act, is specifically barred. In the case on hand, on no stretch of imagination, this Court could hold that there is no _prima facie_ case so as to take this case as one outside the orbit of the bar under Section 18 and 18A of the SC/ST Act. This is the reason why the learned Special Judge also dismissed the anticipatory bail application. 10. In this case, going by the Case Diary, it could be seen that the accused herein, who are not members of the Scheduled Castes or the Scheduled Tribes, brutally manhandled the victims and they sustained very serious injuries including fracture. Thus, it has to be held that the offences under the IPC Crl.Appeal No.1012 of 2022 -:9:- as well as the offence under Section 3(2)(v) of the SC/ST Act are well made out and further, a prima facie case under the SC/ST Act also is made out. 11. Apart from that, since the offence under Section 326 of IPC is alleged, arrest and custodial interrogation are essential to accomplish successful investigation and eventful prosecution. In such a case, the bar under Sections 18 and 18A of the SC/ST Act would squarely attract and therefore, anticipatory bail, as canvassed, cannot be granted. It is on this premise, the learned Special Judge dismissed the anticipatory bail application at the instance of the appellants and the said order does not suffer from any infirmity or illegality, warranting interference by this Court. In the result, the appeal is dismissed, since the same is devoid of any merits. The appellants can Crl.Appeal No.1012 of 2022 -:10:- surrender before the police and proceed under law. Sd/- **A. BADHARUDEEN JUDGE** rkj Crl.Appeal No.1012 of 2022 -:11:- ## **APPENDIX OF CRL.A 1012/2022** |**PETITIONER ANNEXURES**|**PETITIONER ANNEXURES**| |---|---| |**ANNEXURE A1**|**TRUE COPY OF THE FIR AND FIS IN CRIME**| ||**NO. 1250 OF 2021 OF PATHANAMTHITTA**| ||**POLICE STATION**| |**ANNEXURE A2**|**TRUE COPY OF THE COMPLAINT ALONG WITH**| ||**POSTAL RECEIPT DATED 17-11-2021**| |**ANNEXURE A3**|**TRUE COPY OF THE REPRESENTATION DATED**| ||**27-7-2022 ALONG WITH THE POSTAL**| ||**RECEIPT SUBMITTED TO THE DISTRICT**| ||**POLICE CHIEF**| |**ANNEXURE A4**|**TRUE COPY OF THE REPRESENTATION**| ||**SUBMITTED BY THE 2ND PETITIONER DATED**| ||**27-7-2022 ALONG WITH COPY OF THE**| ||**POSTAL RECEIPT**| |**ANNEXURE A5**|**TRUE COPY OF THE ORDER DATED 2-9-2022**| ||**IN BA NO.6314/2022 BEFORE THIS**| ||**HON'BLE COURT**| |**ANNEXURE A6**|**CERTIFIED COPY OF THE ORDER IN CRL.MP**| ||**NO. 4066 OF 2022 ON THE FILE OF THE**| ||**SESSIONS COURT, PATHANAMTHITTA, WHICH**| ||**IS THE SPECIAL COURT OF SC/ST POA ACT**|