Crl.A. No.1659 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.1659 OF 2023** **CRIME NO.562/2023 of Vellayil Police Station, Kozhikode ORDER DATED 20.10.2023 IN CRMC 1753/2023 OF DISTRICT** **COURT & SESSIONS COURT,KOZHIKODE** ## **APPELLANT/PETITIONER/ACCUSED:** **XXX** **BY ADV. SUVIN.R.MENON** **RESPONDENT/RESPONDENT/STATE/COMPLAINANT AND DEFACTO COMPLAINANT:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031** - **2 STATION HOUSE OFFICER VELLAYIL POLICE STATION, KOZHIKODE, KERALA, PIN – 673005** - **3 YYY** **BY ADVS. S.K. SAJU NAVAS JAN A.(K/000408/2021)** **SMT.SEENA C.- GOVERNMENT PLEADER** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 27.11.2023, THE COURT ON 05.12.2023 DELIVERED THE FOLLOWING:** 2 Crl.A.No.1659 of 2023 ## **P.G. AJITHKUMAR, J.** **----------------------------------------------------------Crl.A.No.1659 of 2023 ----------------------------------------------------------Dated this the 5[th] day of December, 2023** ## **J U D G M E N T** This is an appeal under Section 14A of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (SC/ST Act). The appellant is aggrieved by the order dated 20.10.2023 of the Sessions Court (Special Court), Kozhikode, by which his application for anticipatory bail was dismissed. 2. The appellant is the sole accused in crime No.562 of 2023 of Vellayil Police Station. The offences alleged against him are punishable under sections 354, 354A(1)(i), 354C of the IPC and Section 3(1)(w)(i) and 3(2)(va) of the SC/ST Act. 3. The allegations against the appellant are that at about 7.50 a.m on 10.08.2023, while the defacto complainant who belongs to a scheduled caste was changing her dress in the security staff room at the Government General Hospital, Beach road, Kozhikode, the appellant came 3 Crl.A.No.1659 of 2023 out of the bathroom inside, hugged her from behind and kissed her with sexual intent. The appellant filed Crl. M.C No.1753 of 2023 seeking anticipatory bail. The de facto complainant-3[rd] respondent filed an objection opposing the petition. After hearing both sides, the court below found that the materials on record prima facie revealed commission of offences punishable under the SC/ST Act and therefore the appellant is not entitled to get anticipatory bail. The bar under section 18 of the SC/ST Act to grant anticipatory bail was found applicable to the case. 4. Heard the learned counsel for the appellant, the learned Public Prosecutor and the learned counsel for the 3[rd] respondent. 5. If the allegations levelled against the appellant in the FI statement are true, that constitutes offences under Section 354, 354A(1)(i), and Section 354C of the Indian Penal Code. The 3[rd] respondent being a member of the scheduled caste, the commission of the said offences against her would attract the provisions of Section 3(2)(va) of the SC/ST Act, provided the appellant knew her caste. Such an 4 Crl.A.No.1659 of 2023 act will also amount to an offence as described in Section 3(1)(w)(i) of the SC/ST Act. The learned counsel for the appellant would submit that the circumstances in which the crime was registered, the delay that occurred in complaining, and the fact that the 3[rd] respondent was terminated from service as security staff at the Government General Hospital before her complaints would indicate that she had complained with an ulterior motive of wreaking personal vengeance. The learned counsel would submit that had such an incident really occurred, the 3[rd] respondent certainly would have complained to the police immediately. When it is stated in the complaint itself that after due deliberation and consultation with members of her family and office bearers of the SC/ST organisation, the complaint was launched, the ill motive behind the complaint is quite explicit. It is accordingly, contended that the materials on record are prima facie insufficient to attract the provisions of the SC/ST Act and therefore, the appellant is entitled to get anticipatory bail. ## 6. In **Subhash Kashinath Mahajan v. State of** 5 Crl.A.No.1659 of 2023 **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 about offences under the SC/ST Act. In **Union of India v. 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.ii 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.NT Desai** (supra) and clarify the judgments of this Court in **Balothia** (supra) and **Manju Devi** (supra);” 7. A Three judge bench of the Apex Court in **Prathvi Raj Chauhan v. Union of India [(2020) 4 SCC** **727],** observed that if a prima facie case has not been made 6 Crl.A.No.1659 of 2023 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 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. Bearing the above in mind, the complaint in this case and the attending circumstances are to be appreciated. 8. The incident was on 10.08.2023. The 3[rd] respondent complained on 05.10.2023. It is seen that she 7 Crl.A.No.1659 of 2023 complained before the lay secretary in the hospital on the same day about the misbehaviour by the appellant. However, she continued service as security staff in the hospital where the appellant was the security supervisor till 30.09.2023. After she left the service and there was no likelihood of her reemployment, she complained. Of Course, a few reasons are stated; she, after consulting with members of her family, colleagues and office bearers of SC/ST organisation, decided to lodge the complaint. Further, owing to the financial stringency she could not afford to complain till 30.09.2023, which would have resulted in termination of her employment. The nature of the allegations in the First Information Statement against the appellant is such that any ordinary prudent person would have complained immediately. The reasons stated by the 3[rd] respondent for the delay therefore lead to a prima facie finding that the commission of the offences under the SC/ST Act by the appellant is doubtful. The deliberation that took place before complaining to the police makes the genesis of the case more doubtful. Such explanations are matters for 8 ## Crl.A.No.1659 of 2023 decision at the trial. True, both of them were colleagues, but it is not known whether the appellant knew that the 3[rd] respondent was a member of a scheduled caste. It may not be possible at this stage to draw a presumption under Section 8(c) of the SC & ST Act . In the said circumstances, I am of the view that the bar under Section 18 of the SC & ST Act is not attracted to this case. 9. Considering the nature of the offences involved, 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. In the event of arrest, the investigating officer shall, after interrogation and other processes of investigation, release the appellant on bail on the execution of a bond 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) The appellant shall not influence or intimidate the defacto complainant or witnesses or tamper with evidence; 9 Crl.A.No.1659 of 2023 - (ii) He shall appear before the investigating officer as and when called for; and - (iii) During the bail period, he 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 10 Crl.A.No.1659 of 2023 ## **APPENDIX OF CRL.A 1659/2023** ## **PETITIONER ANNEXURES** ## **Annexure A1** ## **Annexure A2** **THE CERTIFIED COPY OF THE FIRST INFORMATION REPORT IN CRIME NO. 562 OF 2023 ON THE FILES OF VELLAYIL POLICE STATION ALONG WITH THE FIRST INFORMATION STATEMENT DATED 05.10.2023 THE FREE/ACCUSED COPY OF THE ORDER DATED 20.10.2023 OF THE COURT OF SESSIONS, KOZHIKODE IN CRIMINAL MISCELLANEOUS CASE NO. 1753 OF 2023**