Crl.Appeal No. 538 of 2023: Shameem v. State of Kerala & Neethu P. Mani

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 31[ST] DAY OF MAY 2023 / 10TH JYAISHTA, 1945 CRL.A NO. 538 OF 2023** **Crl.M.C.No.181/2023 OF SESSIONS COURT, THODUPUZHA APPELLANT/S:** C H SHAMEEM AGED 43 YEARS S/O HASSAN, SRAMBICKAL HOUSE, VALARA P O, IRUMBUPALAM, MANNAMKANDAM VILLAGE, IDUKKI DISTRICT -, PIN - 685561 BY ADVS. S.RAJEEV V.VINAY M.S.ANEER SARATH K.P. PRERITH PHILIP JOSEPH ANILKUMAR C.R. ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 NEETHU P MANI AGED 32 YEARS W/O RATHEESH P.R, PUTHENPURAKAL HOUSE, IRUMBUPLALAM, CHILITHODE, VALARA, MANNMKANDAM IDUKKI, PIN - 685561 BY ADV V.K.DINESH KUMAR ## **OTHER PRESENT:** SR.PP.RENJITH GEORGE **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29.05.2023, THE COURT ON 31.05.2023 DELIVERED THE FOLLOWING:** Crl.Appeal No.538 of 2023 -2- ## **JUDGMENT** Dated this the 31[st] day of May, 2023 The appellant, a senior teacher in the L.P School, Irimbupalam is the sole accused in Crime No.196 of 2023 registered for offences punishable under Sections 354 B and 294(b) of IPC and Sections 3(1)(s), 3(1)(r) and 3(2)(va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015. 2. The crime is registered based on the second respondent's complaint that she was humiliated and intimidated by the appellant and an attempt made to disrobe her by pulling the shawl of her dress, thereby outraging her modesty. Even though appellant approached the Special Court seeking anticipatory bail, that application was dismissed finding the offences under the SC/ST (PoA) Act have been prima facie made out and hence, the prohibition under Section 18A of the Act being applicable. Hence, this Crl.Appeal No.538 of 2023 -3- appeal. 3. Learned Counsel for the appellant contended that the allegations are patently false and ill-motivated. It is submitted that, even though the second respondent was not appointed in the LP School in any capacity, she was managing the affairs of the school, at the behest of the Headmaster. On the appellant was being transferred and appointed as permanent teacher in the school, he questioned the role of the second respondent. This resulted in to the second respondent becoming inimical towards the appellant. Due to her animosity, the second respondent initially submitted Annexure I complaint on 16.02.2023 stating that, on 15.02.2023 evening, the appellant had abused and intimidated her. On being advised that the allegations in Annexure I are not sufficient to attract the offences under the SC/ST (PoA) Act, the second respondent gave a statement to the Crl.Appeal No.538 of 2023 -4- police on 21.02.2023 wherein, for the first time, she alleged that, on 15.02.2023, the appellant had humiliated and intimidated her and had attempted to disrobe her. The manner in which the second respondent improvised on her earlier complaint, by itself, is sufficient indication of the falsity of the allegations. It is contended that merely by reason of a person belonging to Scheduled Caste or Scheduled Tribe being abused, offences under the SC/ST (PoA) Act will not be attracted. For that, the insult or intimidation should be for the reason that the de facto complainant is a member of a Scheduled Caste or Scheduled Tribe. Relying on the decision in _**Arul P.Sugathan and others v. State of Kerala**_ _**and another [2021 (1) KHC 126]**_ , it is contended that Section 18A is not an absolute bar against grant of anticipatory bail and if no _prima facie_ case is made out or if the complaint is found to be _prima facie mala fide_ , the court can grant Crl.Appeal No.538 of 2023 -5- pre-arrest bail. Referring to the decision in _**Sri Gulam Mustafa v. State of Karnataka and**_ _**another [2023 LiveLaw (SC) 421]**_ , it is contended that while instituting the FIR invoking provisions of a very stringent statute like the SC/ST (PoA) Act, the officers are duty bound to be vigilant and should be satisfied that the provisions they seek to invoke _prima facie_ apply to the case at hand. 4. Learned Public Prosecutor submitted that, after detailed investigation, a report was submitted before the Special Court for deleting the offences under Sections 354B and 294(b) IPC and Sections 3(1)(s) and 3(2)(va) of SC/ST (PoA) Act and to continue the investigation with respect to the offence under Section 3(1)(r) of the Act. It is contended that, even with respect to the offence under Section 3(1)(r), the prohibition under Section 18A would apply and therefore, the prayer for pre-arrest bail is Crl.Appeal No.538 of 2023 -6- liable to be rejected. 5. Learned Counsel for the second respondent submitted that the appellant is an influential person, as would be evident from the deletion of all offences other than the offence under Section 3(1)(r). It is contended that the seriousness of the allegations should deter this Court from granting anticipatory bail. The allegation being that the appellant had humiliated the second respondent, a person belonging to the Scheduled Caste, and attempted to disrobe her in front of her students. The fact that the appellant is a teacher increases the gravity of the crime. Grant of pre-arrest to such a person will give a wrong message to the society. 6. A perusal of the Special court's order rejecting the application for pre-arrest bail shows that, as on the date of issuance of the order, the police was conducting investigation Crl.Appeal No.538 of 2023 -7- into all the offences for which the crime was registered. After the application for anticipatory bail was rejected by the Special Court, the investigating officer filed a report seeking to delete all offences other than the offence under Section 3(1)(r) of the SC/ST (PoA) Act. As such, the consideration in this appeal is confined to the question whether the offence under Section 3(1)(r) is _prima facie_ made out or not. For the offence to be attracted, the accused must have intentionally insulted or intimidated a member of a Scheduled Caste or Scheduled Tribe in any place within public view. Dilating on this aspect, the Supreme Court in in _**Hitesh Verma v. State of Uttarakhand and another [(2020) 10 SCC 710]**_ has held that the the ingredient necessary for attracting the offence under Section 3(1)(r) is intentional insult and intimidation with an intent to humiliate the member of a Scheduled Caste or a Scheduled Tribe. Crl.Appeal No.538 of 2023 -8- In this context, Annexure I complaint filed by the second respondent, on the very next day of the incident assumes relevance. Therein, the second respondent has not alleged that she was insulted and intimidated for the reason that she belongs to the Scheduled Caste. On the other hand, Annexure I contains only a vague statement that the appellant was keeping the second respondent at a distance for the reason that she belongs to Scheduled Caste. Of course, in the subsequent complaint made after 5 days, the second respondent had made the allegations required for attracting the offences under the Act. Pertinently, the police found most of the allegations to be incorrect and filed a report to delete all offences other than the one under Section 3(1)(r). This, in my view, indicates the possibility of false accusation having been made, even with respect to the offence under Section 3(1)(r). Being so, I find the appellant to be Crl.Appeal No.538 of 2023 -9- entitled for pre-arrest bail, despite the prohibition under Section 18A. In the result, the criminal appeal is allowed and the investigating officer in Crime No.196 of 2023 of Adimaly Police station is directed to release the appellant on bail, in the event of his arrest, on the appellant executing a bond for Rs.25,000/- (Rupees twenty five thousand only) with two solvent sureties for the like amount. The appellant shall report before the investigating officer on the first Monday of every month for three months or till the final report is filed, whichever is earlier. Sd/- ## **V.G.ARUN JUDGE** Scl/ Crl.Appeal No.538 of 2023 -10- ## **APPENDIX OF CRL.A 538/2023** PETITIONER ANNEXURES Annexure I A COPY OF THE COMPLAINANT DATED 16.02.2023