Crl.Appeal Nos.1357/2022, 1375/2022, 1377/2022 and 1378/2022 v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **THURSDAY, THE 19[TH] DAY OF JANUARY 2023/29TH POUSHA, 1944** **CRL.A NO.1357 OF 2022** **AGAINST THE ORDER/JUDGMENT IN CMP 1804/2022 OF SPECIAL COURT (ATROCITIES AGAINST SC/ST), MANJERI IN CRIME NO.743/2022 OF THENJIPPALAM POLICE STATION, MALAPPURAM DISTRICT.** ## **APPELLANTS/ACCUSED:** 1 ARUN RAJ, AGED 22 YEARS, S/O. RAJAN, THODUVIL (H), PUTHIYATH PURAY, KUTTOR NORTH, ABDURAHIMAN NAGAR, MALAPPURAM DISTRICT, PIN – 676305. 2 UDAY RAJ, AGED 26 YEARS, S/O.RAJAN, THODUVIL (H), PUTHIYATH PURAY, KUTTOR NORTH, ABDURAHIMAN NAGAR, MALAPPURAM DISTRICT, PIN – 676305. 3 HARSHAD, AGED 25 YEARS, S/O.UMMER, PALAMADATHIL (H), E.K.PADI, KUNNAMANGALAM WEST (P.O), MALAPPURAM DISTRICT, PIN – 673571. 4 NIKHIL, AGED 26 YEARS, S/O.NARAYANAN, PATTALATHIL PUTHIYATH PURAYA, ABDURAHIMAN NAGAR, MALAPPURAM DISTRICT, PIN – 676305. BY ADVS. K.DILIP P.BABU KARTHIKEYAN. ## **RESPONDENTS/STATE/COMPLAINANT:** 1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031. 2 SAJEESH, AGED 28 YEARS, S/O.SUBRAMANIAN, AREAKATMATTIL (H), A.R.NAGAR, TIRURANGADI TALUK, MALAPPURAM DISTRICT, PIN – 676305. BY ADVS.SRI.G.SUDHEER, PUBLIC PROSECUTOR Crl.Appeal.Nos.1357, 1375, 1377 and 1378 of 2022 2 THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 19.01.2023, ALONG WITH CRL.A.1375/2022, 1377/2022 AND 1378/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 3 Crl.Appeal.Nos.1357, 1375, 1377 and 1378 of 2022 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **THURSDAY, THE 19[TH] DAY OF JANUARY 2023/29TH POUSHA, 1944** **CRL.A NO.1375 OF 2022** **AGAINST THE ORDER/JUDGMENT DATED 05.12.2022 IN CMP NO.1754/2022, 1755/2022 AND 1782/2022 OF SPECIAL COURT (ATROCITIES AGAINST SC/ST), MANJERI IN CRIME NO.847/2022 OF TIRURANGADI POLICE STATION, MALAPPURAM DISTRICT.** ## **APPELLANTS/ACCUSED NOS.1 AND 2:** 1 ARUN RAJ, AGED 22 YEARS, S/O. RAJAN, THODUVIL (H), PUTHIYATH PURAY, KUTTOR NORTH, ABDURAHIMAN NAGAR, MALAPPURAM DISTRICT, PIN – 676305. 2 UDAY RAJ, AGED 26 YEARS, S/O.RAJAN, THODUVIL (H), PUTHIYATH PURAY, KUTTOR NORTH, ABDURAHIMAN NAGAR, MALAPPURAM DISTRICT, PIN – 676305. BY ADVS. K.DILIP P.BABU KARTHIKEYAN. ## **RESPONDENTS/STATE/COMPLAINANT:** 1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031. 2 SASI, S/O.NEELAKANDAN, AREAKATT MATTIL (H), A.R.NAGAR, TIRURANGADI TALUK, MALAPPURAM DISTRICT, PIN – 676305. BY ADVS.SRI.G.SUDHEER, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 19.01.2023, ALONG WITH CRL.A.1357/2022, 1377/2022 AND 1378/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 4 Crl.Appeal.Nos.1357, 1375, 1377 and 1378 of 2022 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **THURSDAY, THE 19[TH] DAY OF JANUARY 2023 / 29TH POUSHA, 1944** **CRL.A NO.1377 OF 2022** **AGAINST THE ORDER/JUDGMENT CMP 1755/2022 OF SPECIAL COURT (ATROCITIES AGAINST SC/ST), MANJERI IN CRIME NO.847/2022 OF TIRURANGADI POLICE STATION, MALAPPURAM DISTRICT.** ## **APPELLANT/ACCUSED NO.3:** HARSHAD, AGED 25 YEARS, S/O.UMMER, PALAMADATHIL (H), E.K PADI, KUNNAMANGALAM WEST (P.O), MALAPPURAM DISTRICT, PIN – 673571. BY ADVS. K.DILIP P.BABU KARTHIKEYAN. ## **RESPONDENTS/STATE/COMPLAINANT:** 1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031. 2 SASI, AGE NOT KNOWN, S/O.NEELAKANDAN, AREAKATT MATTIL (H), A R NAGAR, TIRURANGADI TALUK., MALAPPURAM DISTRICT., PIN – 676305. BY ADVS.SRI.G.SUDHEER, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 19.01.2023, ALONG WITH 1357/2022, 1375/2022, AND 1378/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 5 Crl.Appeal.Nos.1357, 1375, 1377 and 1378 of 2022 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **THURSDAY, THE 19[TH] DAY OF JANUARY 2023 / 29TH POUSHA, 1944** **CRL.A NO.1378 OF 2022** **AGAINST THE ORDER/JUDGMENT IN CMP 1782/2022 OF SPECIAL COURT (ATROCITIES AGAINST SC/ST), MANJERI IN CRIME NO.847/2022 OF TIRURANGADI POLICE STATION, MALAPPURAM DISTRICT.** **APPELLANT/ACCUSED NO.4:** NIKHIL, AGED 26 YEARS, S/O.NARAYANAN, PATTALATHIL PUTHIYATH PURAYA, ABDURAHIMAN NAGAR, MALAPPURAM DISTRICT, PIN – 676305. BY ADVS. K.DILIP P.BABU KARTHIKEYAN. ## **RESPONDENTS/STATE/COMPLAINANT:** 1 STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031. 2 SASI, AGE NOT KNOWN, S/O.NEELAKANDAN, AREAKATT MATTIL (H), A R NAGAR, TIRURANGADI TALUK, MALAPPURAM DISTRICT., PIN – 676305. BY ADVS.SRI.RENJIT GEORGE, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 19.01.2023, ALONG WITH 1357/2022, 1375/2022, AND 1377/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.Appeal.Nos.1357, 1375, 1377 and 1378 of 2022 6 ## **COMMON JUDGMENT IN Crl.APPEAL Nos.1357/2022, 1375/2022, 1377/2022 AND 1378/2022** ## **Dated, this the 19[th] January, 2023** Crl.Appeal.No.1357/2022 is an appeal filed under Section 14A of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred as, 'SC/ST Act' for short). The appellants herein are the accused Nos.1 to 4 in Crime No.743/22 of Thenhipalam Police Station, where they alleged to have committed offences under Sections 120A, 298, 324, 352, 308 and 506 IPC and Sections 3(1)(r) and 3(1)(s) of the SC/ST Act read with Section 34 of Indian Penal Code. They impugn common order in Crl.M.P. Nos.1754/2022, 1755/2022 and 1782/2022 dated 05.12.2022 on the files of the learned Special Judge, under the SC/ST Special Court, Manjeri. 2. The prosecution case in Crime Crl.Appeal.Nos.1357, 1375, 1377 and 1378 of 2022 7 No.743/2022 in short, is as under: The appellants herein, who do not belong to Scheduled Caste or Scheduled Tribe community, on 28.08.2022 wrongfully restrained the defacto complainant, who is a member of Scheduled Caste community, called his caste name and abused. Apart from that, they stabbed the defacto complainant with a knife, when the same was defended by the friend of the defacto complainant, Sarathlal, the accused beat the defacto complainant with a beer bottle and also attempted to stab the friend of the defacto complainant with a knife, when one Jijish and warded off, the same caused injury on the nose of Sarathlal. This is the base on prosecution alleges commission of the above offences. 3. Crl.Appeal Nos.1375/2022, 1377/2022 and 1378/2022 are at the instance of the appellants 1, 2, 3 and 4 (they are the appellants in Crl.Appeal No.1357/2022). The appellants are Crl.Appeal.Nos.1357, 1375, 1377 and 1378 of 2022 8 accused Nos.1 to 4 in Crime No.847/2022 of Tirurangadi Police Station, where they alleged to have committed offences under Sections 120A, 298, 324, 325, 354, 451 and 506 IPC and Sections 3(1)(r) and (s) of the SC/ST Act. The prosecution allegation herein is that due to animosity towards the defacto complainant on the premise that he had reported the drug sale of the accused before the police, on 01.08.2022, the 1[st] accused abused the defacto complainant, who is a member of Scheduled Caste community. Thereafter, at 6:00 p.m., on 28.08.2022, accused Nos.1 to 4, who do not belong to Schedule Caste or Scheduled Tribes community, criminally trespassed into the house of the defacto complainant holding knife and beer bottles. Thereafter, they abused the wife of the defacto complainant by calling her caste name and caught hold on the hand of the defacto complainant and, thereby, outraged her modesty. When the minor 9 Crl.Appeal.Nos.1357, 1375, 1377 and 1378 of 2022 son of the defacto complainant tried to rescue the wife of the defacto complainant, the accused beat him with a beer bottle and also criminally intimidated him. This is the base on which prosecution alleges commission of above offences in these crimes. 4. Heard the learned counsel for the appellants as well as the learned Public Prosecutor. Adv. Sri.P.C.George appears for the defacto complainant. 5. Apprehending arrest at the hands of the Thenhipalam police in Crime No.743/2022, the appellants moved Anticipatory Bail application before the Special Court under the SC/ST Act. As per Annexure-1, viz., order in Crl.M.C. No.1804/2022, the learned Special Judge considered the rival contentions and finally dismissed the application holding that _prima facie_ case made out and, therefore, grant of Anticipatory Bail is specifically barred under Crl.Appeal.Nos.1357, 1375, 1377 and 1378 of 2022 ## 10 Sections 18 and 18A of the SC/ST Act. Similarly, the bail applications filed by the appellants in Crime No.847/2022 of Tirurangadi Police Station, also were dismissed. 6. While canvassing Anticipatory Bail to the appellants, after setting aside the orders impugned, the learned counsel for the appellants argued at length to contend that the entire allegations are false and the police did not register any crime _suo motu_ in these occurrences. He also pointed out that in both Crimes viz., Crime Nos.847/2022 and 743/2022 were registered on the basis of separate private complaints lodged by the defacto complainant before the Special Court. According to the learned counsel for the appellants, the prosecution records do not justify a _prima facie_ case and, therefore, appellants in these cases are liable to be released on Anticipatory Bail. 7. The learned counsel for the defacto Crl.Appeal.Nos.1357, 1375, 1377 and 1378 of 2022 11 complainant resisted the contention raised by the learned counsel for the appellants on the submission that these two crimes viz., Crime Nos.743/2022 and 847/2022, were registered on two separate occurrences on the same date at 6:00 p.m. and 6:30 p.m. at Thenhipalam police station and Tirurangadi police station, respectively. He also would submit that the first crime registered by the Tirurangadi police is pertaining to attack against the wife and minor son of the defacto complainant and also calling caste name of wife of the defacto complainant. Further, in the first occurrence, the accused caught hold on the defacto complainant's mother and, thereby, she sustained injuries. It is argued further that the first crime was registered when the appellants herein attacked the minor child and his mother, as submitted herein above, due to animosity arose out of an alleged instance, whereby the defacto 12 Crl.Appeal.Nos.1357, 1375, 1377 and 1378 of 2022 complainant believed to have informed the police about illegal possession and sale of Narcotic Substances by the appellants. According to him, in both crimes _prima facie_ case is well made out and, therefore, the bar under sections 18 and 18A of the SC/ST Act would apply. The learned counsel also submitted that police is in support of the appellants and they hesitated to register cases _suo motu_ , even though the defacto complainant given written complaint on the date of occurrence itself, narrating the two occurrences. 8. The learned Public Prosecutor, zealously opposed grant of Anticipatory Bail, to the appellants on the submission that, in both cases, a _prima facie_ case is well made out and, therefore, arrest and custodial interrogation are necessary to effectuate meaningful investigation and successful prosecution. 9. In these matters, police _suo motu_ not Crl.Appeal.Nos.1357, 1375, 1377 and 1378 of 2022 13 registered any crime. Thereafter, the defacto complainant filed separate private complaints before the learned Special Judge and, thereafter these crimes were registered and are now on investigation. 10. According to the learned counsel for the defacto complainant, even prior to that, the complainant filed a petition, on the date of occurrence itself, before the Circle Inspector, Thirurangadi narrating the occurrence. The learned counsel placed copy of the said petition. 11. On perusal of the Case Diary in Crime No.847/2022, copy of the said petition is available, being part of the Case Diary. In the complaint given by the defacto complainant, assault against the wife and minor child of the defacto complainant, after trespassing upon the house of the defacto complainant and other overt acts borne out from the police records precisely Crl.Appeal.Nos.1357, 1375, 1377 and 1378 of 2022 14 narrated. Therefore, the contention raised by the learned counsel for the defacto complainant that there is no delay in filing the complaint before the Special Court since the defacto complainant believed that police would _suo motu_ register case, acting on the complaint filed on 28.08.2022, appears to be convincing. Further, the contention raised by the appellants on the assertion that these cases are foisted also cannot be believed. In crime No.743/2022, there is allegation that Sarath and Sajeesh sustained injuries. The Case Diary contains copies of wound certificates in relation to Sarath as well as Sajeesh. The wound certificate of Sarath depicts that he sustained abrasion (1 x 0.1cm) and contusion on the nose as well as contusion on the right hand. Further, wound certificate of Sajeesh also shows abrasion (2 x 0.2cm) on the left lower back. Thus the overt acts and consequential injuries, though not serious in Crl.Appeal.Nos.1357, 1375, 1377 and 1378 of 2022 **==> picture [13 x 9] intentionally omitted <==** nature, could be seen from the wound certificates. Therefore, merely because of the fact that, these crimes were registered on the basis of private complaints lodged by the defacto complainant, it could not held that the allegations are false and, therefore, there is no _prima facie_ case. 12. Going by the statements of the defacto complainant and that of the witnesses in these crimes, in order to appraise the merit of these appeals pertaining to these crimes, there is no reason to hold that the allegation as to commission of offences including one under Section 3(1)(r) and 3(1)(s) of SC/ST Act are not made out _prima facie_ to hold that these are cases, where Anticipatory Bail can be granted in deviation from the statutory mandate under Sections 18 and 18A of the Act. 13. Even after amendment and incorporation of Section 18A, a three bench of the Apex Court Crl.Appeal.Nos.1357, 1375, 1377 and 1378 of 2022 16 considered the impact of Sections 18 and 18A ## _**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 prosecution allegation make a _prima facie,_ anticipatory bail cannot be granted. 14. Thus the law is settled that when there is a _prima facie_ case, Anticipatory Bail in cases involving offences under Sections 18 and 18A of SC/ST Act, is specifically barred. 15. In the case on hand, on no stretch of imagination, this Court hold that there is no Crl.Appeal.Nos.1357, 1375, 1377 and 1378 of 2022 **==> picture [13 x 9] intentionally omitted <==** _prima facie_ case so as to take this case as one outside the bar under Sections 18 and 18A of the SC/ST Act. Therefore, this is not a fit case for granting Anticipatory Bail. As such, the order impugned requires no inteference. Accordingly, Crl.Appeal Nos.1357/2022, 1375/2022, 1377/2022 and 1378/2022 are dismissed. Sd/- ## **A.BADHARUDEEN, JUDGE.** ww 18 Crl.Appeal.Nos.1357, 1375, 1377 and 1378 of 2022 ## **APPENDIX OF CRL.A 1357/2022** PETITIONERS' ANNEXURE: ANNEXURE1 FREE COPY OF THE ORDER IN CRL.M.P 1804/2022 ON THE FILES OF THE HON'BLE SPECIAL COURT FOR SC/ST (POA) ACT & NDPS CASES, MANJERI DATED 05/12/2022. 19 Crl.Appeal.Nos.1357, 1375, 1377 and 1378 of 2022 ## **APPENDIX OF CRL.A 1375/2022** PETITIONER'S ANNEXURES: ANNEXURE1 A TRUE COPY OF THE COMMON ORDER DATED 05/12/2022 IN CRL. M.P NO.1754/2022, 1755/2022 AND 1782/2022 ON THE FILES OF SPECIAL COURT FOR SC/ST (POA) ACT, MANJERI, IN CRIME NO.847/2022 OF TIRURANGADI POLICE STATION. ANNEXURE2 A TRUE COPY OF THE REGISTRATION DETAILS OF THE VEHICLE BEARING REGISTRATION NO. KL-34-D-8111 DATED NIL. 20 Crl.Appeal.Nos.1357, 1375, 1377 and 1378 of 2022 ## **APPENDIX OF CRL.A 1377/2022** PETITIONER'S ANNEXURE: ANNEXURE 1 TRUE COPY OF THE COMMON ORDER DATED 05/12/2022 IN CRL. M.P NO.1755/2022, ON THE FILES OF SPECIAL COURT FOR SC/ST (POA) ACT, MANJERI, IN CRIME NO. 847/2022 OF TIRURANGADI POLICE STATION. 21 Crl.Appeal.Nos.1357, 1375, 1377 and 1378 of 2022 ## **APPENDIX OF CRL.A 1378/2022** PETITIONER'S ANNEXURES: ANNEXURE 1 A TRUE COPY OF THE COMMON ORDER DATED 05/12/2022 IN CRL. M.P NO.1782/2022, ON THE FILES OF SPECIAL COURT FOR SC/ST (POA) ACT, MANJERI, IN CRIME NO. 847/2022 OF TIRURANGADI POLICE STATION.