CRL.A.No.559 of 2020

**“CR”** **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **THURSDAY, THE 22ND DAY OF OCTOBER 2020/30TH ASWINA,1942** ## **CRL.A.No.559 OF 2020** ## **B.A.(T) No.541 of 2020 OF SESSIONS JUDGE, THRISSUR** **- APPELLANT/S/PETITIONERS/ACCUSED NOS. 1 3:** **1 ARUL P SUGATHAN AGED 42 YEARS S/O.P.SUGATHAN, VAISHNAVAM, NATTAKAM P.O., KOTTAYAM DISTRICT. 2 DR. P.SUGATHAN, AGED 70 YEARS VAISHNAVAM, NATTAKAM P.O., KOTTAYAM DISTRICT. 3 PRABHAVATHY, AGED 69 YEARS W/O. DR.P.SUGATHAN, VAISHNAVAM, NATTAKAM P.O., KOTTAYAM DISTRICT. BY ADVS. SRI.P.VIJAYA BHANU (SR.) SRI.P.M.RAFIQ SRI.M.REVIKRISHNAN SRI.AJEESH K.SASI SRI.V.C.SARATH SRI.VIPIN NARAYAN SMT.POOJA PANKAJ SRUTHY N. BHAT SHRI.ABEL TOM BENNY RESPONDENT/S/STATE & DEFACTO COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031** **2 SREEKUMARI, AGED 39 YEARS D/O.KOCHUNNI, PARAMBAN HOUSE, P.O.CHERPU, THAYAMKULAGARA, THRISSUR DISTRICT-681561.** **R2 BY ADV. SRI.N.D.ARUN DAS R2 BY ADV. SMT.M.C.CHITHRAKALA R2 BY ADV. SRI.P.K.PRETHEEP KUMAR** **SMT. SREEJA .V, PP,** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.559 OF 2020** **2** ## **JUDGMENT** The appellants are the accused and the second respondent is the informant in Crime No.167 of 2020 of Chirappu Police Station, registered for the offences punishable under Sections 323, 498A, 506 and 294(b) IPC and Section 3 (1) (r) (s) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 (for short “the Act”). 2. The prosecution allegation can be briefly stated thus:- The second respondent married the first appellant on 24.04.2019 in accordance with Hindu rites and ceremonies and thereafter, she was taken to **CRL.A.No.559 OF 2020** **3** her Matrimonial Home on the very same day. Ever since the marriage, the second respondent was treated with mental and physical cruelty by the appellants. The second respondent is a member of Scheduled Caste whereas the appellants do not belong to Scheduled Caste/Scheduled Tribe. 3. The appellants filed application under Section 438 Cr.P.C. before the Special Court concerned, which was dismissed by the Special Court as per order dated 14.07.2020 in B.A.No.541/2020, against which this appeal has been filed. 4. Heard the learned Senior Counsel Sri. Vijayabhanu.P, for the appellants, the learned Counsel Sri. N.D. Arundas for the second respondent and the **CRL.A.No.559 OF 2020** **4** learned Public Prosecutor Smt. Sreeja.V. 5. Perused the case diary. 6. The learned Senior Counsel Sri. Vijayabhanu. P has argued that since the allegations in this case are _prima facie malafide_ , the bar under Section 18 of the Act is not applicable and hence the appellants are entitled to be granted the relief under Section 438 Cr.P.C. On the other hand, the learned Counsel Sri. N.D. Arundas has argued that since there is express bar under Section 18 of the NDPS Act for the application of Section 438 Cr.P.C, this Court has no jurisdiction in this case to grant the relief under Section 438 Cr.P.C. to the appellants, particularly when there are allegations against the appellants **CRL.A.No.559 OF 2020** **5** constituting the offences under the Act. The learned Public Prosecutor Smt. Sreeja.V. also supported the argument of the learned Counsel Sri. N.D. Arundas. 7. The first question to be considered is as to whether there is absolute bar against the grant of anticipatory bail in cases under the Act. In order to consider the above question, it will be profitable to go through the provisions of Sections 18 and 18A of the Act. Section 18 of the Act is extracted hereunder:- **“18. Section 438 of the Code not to apply to persons committing an offence under the Act.-** Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having **CRL.A.No.559 OF 2020** **6** committed an offence under this Act.” Section 18A of the Act is extracted hereunder:- **“18-A. No enquiry or approval required.-** (1) For the purposes of this Act,- (a) preliminary enquiry shall not be required for registration of a First Information Report against any person; or (b) the investigating officer shall not require approval for the arrest, if necessary, of any person, against whom an accusation of having committed an offence under this Act has been made and no procedure other than that provided under this Act or the Code shall apply. (2) The provisions of section 438 of the Code shall not apply to a case under this Act, **CRL.A.No.559 OF 2020** **7** notwithstanding any judgment or order or direction of any Court.” 8. The Hon'ble Apex Court considered the object and purpose of Section 18 of the Act in detail and held in paragraph 83 in Subhash Kashinath Mahajan v. State of Maharashtra [2018 (2) KLT 33 (SC)] thus:- “83. Our conclusions are as follows: i) Proceedings in the present case are clear abuse of process of court and are quashed. 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 **CRL.A.No.559 OF 2020** **8** 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.N.T. Desai (supra) and clarify the judgments of this Court in Balothia (supra) and Manju Devi (supra); iii) In view of acknowledged abuse of law of arrest in cases under the Atrocities Act, arrest of a public servant can only be after approval of the appointing authority and of a non-public servant after approval by the S.S.P. which may be granted in appropriate cases if considered necessary for reasons recorded. Such reasons must be scrutinized by the Magistrate for permitting further detention. iv) To avoid false implication of an **CRL.A.No.559 OF 2020** **9** innocent, a preliminary enquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the Atrocities Act and that the allegations are not frivolous or motivated. v) Any violation of direction (iii) and (iv) will be actionable by way of disciplinary action as well as contempt. The above directions are prospective.” 9. Thereafter review petition was filed by the Union of India for reviewing the judgment in Subhash Kashinath (supra). The Three Judge Bench of the Apex Court in Union of India v. State of Maharashtra and Others [2019(5) KHC 57 (SC)] reviewed the judgment in Subhash Kashinath (supra) and held in paragraph 67 thus:- “Resultantly, we are of the considered **CRL.A.No.559 OF 2020** **10** opinion that direction Nos.(iii) and (iv) issued by this Court deserve to be and are hereby recalled and consequently we hold that direction No.(v) also vanishes.” It appears from Union of India (supra) that the Apex Court did not recall conclusion No.(ii) made in Subhash Kashinath (supra) 10. Section 18 A (1) was inserted owing to the decision of the Hon'ble Apex Court in Subhash Kashinath (surpa), which made it necessary to conduct a preliminary enquiry to avoid false implication of an innocent and also to obtain the approval of the appointing authority concerning a public servant and the S.S.P in the case of arrest of accused persons. The Hon'ble Apex Court had recalled the said direction as per the decision in Union of India (supra). **CRL.A.No.559 OF 2020** **11** 11. The Three Judge Bench of the Apex Court in Prithvi Raj Chauhan v. Union of India (UOI) and Others [2020 (2) KHC 423] held that the provisions which had been made in Section 18 A were rendered of academic use as they were enacted to take care of the mandate issued in Subhash Kashinath (supra), which no more prevails. The provisions were already there in Section 18 of the Act with respect to the anticipatory bail. 12. The Apex Court in Prithvi Raj Chauhan (supra) further held that if the complaint does not make out a _prima facie_ case for the applicability of the provisions of the Act, the bar created by Sections 18 and 18 A shall not apply. 13. As already mentioned above, Section 18 A **CRL.A.No.559 OF 2020** **12** was inserted owing to the direction Nos.3 and 4 issued in Subhash Kashinath (supra). However, the Apex Court as per the decision in Union of India (supra) recalled direction Nos.3 and 4 issued in Subhash Kashinath (supra). Since direction No.2 was not recalled, the said direction holds the field even now. Therefore, there is no absolute bar against grant of anticipatory bail in cases under the Act if no _prima facie_ case is made out or where on judicial scrutiny the complaint is found to be _prima facie mala fide._ 14. In the concurring judgment in Prithvi Raj Chauhan (supra), His Lordship Justice S. Ravindra Bhat held in paragraph 32.(20) thus:- “I would only add a caveat with the observation and emphasize that while **CRL.A.No.559 OF 2020** **13** considering any application seeking pre-arrest bail, the High Court has to balance the two interests: i.e. that the power is not so used as to convert the jurisdiction into that under S.438 of the Criminal Procedure Code, but that it is used and such orders made in sparingly very exceptional cases where no prima facie offence is made out as shown in the FIR, and further also that if such orders are not made in those classes of cases, the result would inevitably be a miscarriage of justice or abuse of process of law”. 15. The above discussion would make it clear that there is no absolute bar against the grant of anticipatory bail in cases under the Act. However, the said jurisdiction shall be exercised sparingly and only in very exceptional cases by the High Court. Where the court finds that no _prima facie_ case is made out or **CRL.A.No.559 OF 2020** **14** where on judicial scrutiny, the court finds that the complaint is _prima facie malafide_ , the court will be justified in passing an order granting pre-arrest bail, if the Court is further satisfied that if the pre-arrest bail is not granted in the case, the result would inevitably be miscarriage of justice or abuse of process of law. 16. Now the question to be considered is as to whether the present case falls under any of the said category of cases. 17. Admittedly, the first appellant is the husband and the second and the third appellants are the fatherin-law and the mother-in-law respectively of the second respondent. The learned Counsel for the second respondent has argued that the second **CRL.A.No.559 OF 2020** **15** respondent was forced to swear an affidavit prior to the marriage, which itself would show the treatment of the appellants to the second respondent. The appellants produced a copy of the said affidavit as Annexure-G. Annexure-G would show that the second respondent had sworn-in an affidavit before a notary public prior to the marriage, wherein she had stated that she was informed by the appellants that the first appellant is having blindness in one of his eyes and also that the first appellant is mentally challenged. It is further revealed from the affidavit that the second respondent had fully understood the physical and mental condition of the first appellant and she voluntarily signed the affidavit. On going through Annexure-G, it appears that the second respondent **CRL.A.No.559 OF 2020** **16** was required to swear such an affidavit to avoid the second respondent contending after the marriage that the second respondent was not informed that the first appellant is physically and mentally challenged. When viewed in that angle, this Court does not find anything unnatural in getting such an affidavit from the second respondent and in the said circumstances, the same cannot be construed as a circumstance to hold that the appellants had the intention to treat the second respondent with cruelty. 18. It is clear from the above said affidavit and the contentions in the complaint that the intention of the 2[nd] and the 3[rd] appellants was to provide a family life to the first appellant, who is mentally and physically **CRL.A.No.559 OF 2020** **17** challenged. 19. The Second respondent filed Annexure B complaint before the Sessions Court, Thrissur. The learned Sessions Judge forwarded the said complaint to the police for investigation and report under Section 156 (3) Cr.P.C. Accordingly, the above crime was registered. In Annexure B complaint, it is alleged that even on the very first day, when the second respondent tried to join with the appellants for the dinner, she was not permitted to take dinner with them. She had to take dinner only after the completion of dinner by the appellants. The further allegation is that she had to collect food from the servant and ate the same at the kitchen at the place set apart for the servants. She was **CRL.A.No.559 OF 2020** **18** also not permitted to take plates being used by the appellants. It is alleged that she was permitted to use only the plates, which were kept separately for the servants. So many other allegations are also made in Annexure B complaint. However, I do not think it necessary to extract the said allegations in this judgment. 20. It appears that the intention of the second and the third appellants was to provide a family life to the first appellant, who is mentally and physically challenged. This being the situation, it is beyond the prudence to conceive that the second and the third a ppellants would treat the second respondent on the first day itself as alleged in the complaint. 21. It has been submitted by the learned Counsel **CRL.A.No.559 OF 2020** **19** for the appellants that the second respondent was not prepared to look after the first appellant and that her intention was only to grab money from the appellants. The learned Counsel for the appellants brought to the notice of this Court with regard to the averment in Annexure-B complaint that one of the reasons for her to agree for this marriage was the financial condition of the appellants. In order to support the contention of the appellants that the second respondent was not prepared to look after a person like the first appellant, the learned Counsel has brought to the notice of this Court paragraph 3 of Annexure B complaint wherein it is stated that her only brother, who is having mental retardation, is living in a mercy home. It is stated in paragraph 3 of Annexure B Complaint that she is **CRL.A.No.559 OF 2020** **20** having only one brother, who is having mental retardation and that brother is living in a mercy home. 22. It appears that the mentally retarded brother of the second respondent was not residing with the second respondent even prior to her marriage with the first appellant. It appears from Annexure-B complaint that the said mentally retarded brother of the second respondent is residing in a mercy home. Therefore, the contention of the appellants that the second respondent was not even prepared to look after her own brother, who is mentally retarded, appears to be _prima facie_ correct. It is not disputed that the first appellant is mentally and physically challenged. It is also not disputed that the other appellants are aged and educated. Since the **CRL.A.No.559 OF 2020** **21** intention of the second and the third respondents was to provide a family life to the first appellant, who is mentally and physically challenged, it is not _prima facie_ believable that the second and the third appellants would do anything detrimental to the interest of the first appellant. In the said circumstances, the above mentioned allegations raised against the second and the third appellants in Annexure-B complaint with regard to their behaviour towards the second respondent cannot be _prima facie_ believed. The other allegations made in Annexure-B complaint also _prima facie_ appears to be _malafide_ on judicial scrutiny. It is not disputed that divorce case is pending between the parties before the Family Court concerned. On a judicial scrutiny of Annexure-B complaint, it appears that the allegations in Annexure- **22** **CRL.A.No.559 OF 2020** B complaint are _prima facie malafide_ . The second appellant is aged 70 years and the third appellant is aged 69 years. The first appellant is mentally and physically challenged. Considering the facts and circumstances of the case, including the age of the second and the third appellants, and also taking into consideration of the fact that the first appellant is mentally and physically challenged, I am of the considered view that if pre-arrest bail is not granted to the appellants, the result would inevitably be abuse of process of law. In the said circumstances, the appellants are entitled to pre-arrest bail. For the said reason, the order impugned cannot be sustained. In the result, this appeal stands allowed, setting **CRL.A.No.559 OF 2020** **23** aside the order impuged and the court below is directed to release the appellants on bail in the event of their arrest in connection with Crime No.167 of 2020 of Chirappu Police Station, on condition of each of the appellants executing a bond for Rs.50,000/(Rupees Fifty Thousand Only) each with two solvent sureties each, each for the like sum to the satisfaction of the Investigating Officer, before whom the appellants shall surrender within fifteen working days, if not arrested in the meantime and subject to the following further conditions. (i) The appellants shall report before the Investigating Officer as and when required by the Investigating Officer for interrogation. **CRL.A.No.559 OF 2020** **24** (ii) The appellants shall not intimidate or influence the witnesses or in any way tamper with the investigation. (iii) The appellants shall co-operate with the investigation. I make it clear that no observation in this judgement shall be construed as expression on merits as the observation, if any, made in this judgement was only for the purpose of disposing of this appeal. **Sd/-** **B.SUDHEENDRA KUMAR** **JUDGE** RK/22.10.2020