Dr. M. Balagopalan and Girishkumar N. v. State of Kerala (CRL.A. No.1227 of 2019)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 06TH DAY OF NOVEMBER 2019 / 15TH KARTHIKA, 1941** ## **CRL.A.No.1227 OF 2019** **AGAINST THE ORDER/JUDGMENT IN CRMP 711/2019 DATED 23-10-2019 OF SPECIAL COURT-TRIAL OF OFFENCE UNDER SC/ST(POA)ACT1989, MANNA** **CRIME NO.314/2019 OF KALLADICODE POLICE STATION , Palakkad** ## **APPELLANTS/ACCUSED NOS. 1 AND 2:** **1 DR.M.BALAGOPALAN, AGED 65 YEARS S/O.RUGMINI AMMA, PAYTHRUKAM, VANCHIYURKALAM, KARIMBA (P.O.), PALAKKAD DISTRICT. 2 GIRISHKUMAR N., AGED 45 YEARS S/O.MANU, PUTHANKALAM VEEDU, KARIMBA P.O., PALAKKAD. BY ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.D.FEROZE SRI.K.ANAND (A-1921)** ## **RESPONDENT/STATE:** **STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031 (CRIME NO.314/2019 OF KALLADIKODE POLICE STATION, PALAKKAD DISTRICT).** **R1 BY GOVERNMENT PLEADER** ## **OTHER PRESENT:** **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 06.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.1227 OF 2019** **2** ## **ALEXANDER THOMAS, J. ----------------------------------------Cr.Appeal No.1227 of 2019 ----------------------------------------Dated this the 6[th] day of November, 2019** ## **JUDGMENT** Being aggrieved by the impugned order dated 23.10.2019 rendered by the Special Court for Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act cases, Mannarkad in the matter of rejection of the plea for anticipatory bail. The appellants have preferred the instant criminal appeal under Sec.14A of the SC/ST (POA) Act, 1989 as amended. 2. The appellants herein have been arrayed as the accused Nos. 1 and 2 among the 2 accused in the instant Crime No. 314/2019 of Kalladikode Police Station for the offences punishable under Secs. 341, 294(b), 506(i) and 34 of the IPC and Sec.3(1)(r)(s) of the SC/ST (Prevention of Atrocities) Act, 1989 as amended. The said case has been registered on the basis of the FIS given by the lady defacto complainant on 14.10.2019 at about 10.30 p.m. in respect of the alleged incidents which happened on 03.10.2019 at about 10 a.m. in the morning. 3. The brief of the prosecution case is that on 03.10.2019 at about 10 a.m. while the defacto complainant, who is the 1oth ward member of the local Grama Panchayat and one Sumalatha, who is the 3[rd] ward member of the Panchayat had reached near the burial ground of Kuniyamkadu for **CRL.A.No.1227 OF 2019** **3** supervising the cleaning works done by 'Thozhilurappu Padhathi' (æÄÞÝßÜáùMí ÉiÄß) workers, A1 and A2 had restrained and abused them using filthy language and humiliated the lady defacto complainant in public by calling her caste name and also had taken their photographs in mobile phones. It is stated to be an act done in connection with the dispute between A1 and the Grama Panchayat concerned regarding the burial ground etc. It is stated that the lady defacto complainant belongs to SC (Cheruma) community and that the appellants/accused persons did not belong to SC/ST community and that thereby the accused persons have committed the abovesaid offences. 4. Sri.K.K.Dheerendra Krishnan, learned counsel appearing for the appellants/accused would strongly urge that the abovesaid allegations are absolutely false and fabricated and that the truth of the matter is the other way around. It is pointed out that the 1[st] appellant herein is a retired Chief Scientist of the Kerala Forest Research Institute, Peechi, which is one of the nodal forest research institutions under the Science and Technology Department of the Government of Kerala and that he is presently working as the Director of Research, IRTC, Mundur and the 2[nd] appellant is working as Section Forest Officer at Palakkayam Forest Station, Mannarkad. 5. The appellants would point out that some persons at the instance of the Panchayat members of the local Grama Panchayat concerned had trespassed into the property of the 1[st] appellant and **CRL.A.No.1227 OF 2019** **4** Annexure-I injunction order dated 24.12.2018 was rendered by the Munsiff's Court, Mannarkkad in favour of the 1[st] appellant's son, who is the plaintiff therein and the defendants therein, who are stated to be the political supporters of the abovesaid Panchayat ward members. Annexure-II is the copy of the plaint in the abovesaid original suit O.S.No. 159/2018 filed before the Munsiff's Court in that regard, in which the said court has granted Annexure-I interim injunction order in favour of the 1[st] appellant's son. Further that on 01.10.2019, the 1[st] appellant's son filed Annexure-V, complaint to the Sub-Inspector of Police of Kalladikode Police Station complaining that efforts have been taken by some of the henchmen of the abovesaid Panchayat ward members to trespass into the subject property and in violation of Annexure-I interim injunction order dated 24.12.2018. Earlier, the 1[st] appellant's wife has filed Annexure-IV private criminal complaint as CMP No.444/2019 dated 31.01.2019 before the Judicial First Class Magistrate Court, Mannarkad as a protest complaint in respect of the refer report that is said to have been wrongly submitted by the Police in respect of the FIR in the crime initiated at the behest of the 1[st] appellant's wife. Annexure-III is the commission report dated 17.01.2019 submitted by the Advocate Commissioner appointed by the Munsiff Court, Mannarkad in the abovesaid original suit O.S.No.159/2018. Further the appellants would state that it is due to the political influence of the abovesaid local Panchayat committee members **CRL.A.No.1227 OF 2019** **5** that the FIR in respect of the crime was initiated at the behest of the 1[st] appellant's wife was referred as of civil nature, which compelled her to file Annexure-III protest complaint before the learned Magistrate. Subsequent to that, the 1[st] appellant has got information that some persons are making preparations for trespassing into the property, for which the son and wife of the 1[st] appellant had moved a complaint before the Sub-Inspector of Police, Kalladikode Police Station as per Annexure-V dated 01.10.2019 and Annexure-VI dated 04.01.2019, that it is only as a counter blast to the abovesaid civil court proceedings initiated at the behest of the 1[st] appellant wife and abovesaid the criminal proceedings initiated at her behest that the abovesaid false allegations has been made which has led to the registration of the impugned crime No.314/2019 of Kalladikode Police Station. 6. Accordingly, it is urged by the learned counsel for the appellants that the very initiation and inception of the impugned criminal proceedings in this case is tainted by malafides and ulterior considerations and have been made only to victimize and harass the appellants to put pressure on them so that the 1[st] appellant and his family members are forced to compromise in the abovesaid civil litigative proceedings and the criminal proceedings initiated by them. 7. Accordingly, the counsel for the appellants would urge that the bar under Secs.18 ad 18A of the SC/ST Act will not apply in this case as the proceedings are _prima facie_ tainted by malafides and ulterior **CRL.A.No.1227 OF 2019** **6** considerations and that therefore, this Court may grant anticipatory bail to the appellants. The learned Prosecutor has strongly opposed the plea for anticipatory bail and has pointed out that in view of the bar contained in the abovesaid provisions, this Court may not have the competence to consider the plea for grant of anticipatory bail on merits in this case. It is now well settled by judicial dicta in decisions as in _**Jishnu v. State of Kerala 2019 (1) KLT 432**_ that if a person is able to show prima facie he has not committed any atrocity against the member of SC/ST, that the allegations are _mala fide_ and _prima facie_ false and _mala fide_ , then there is no justification in holding that the bar under Sec.18 would apply in those cases. It will be profitable to refer paragraph 6 and 8 of the abovesaid decision rendered by this Court in _**Jishnu v. State of Kerala [2019 (1) KLT 432]**_ which reads as follows : _“6. If a person is able to show that prima facie, he has not committed any atrocity against the member of a Scheduled Caste and Scheduled Tribe and that the allegation was mala fide and prima facie false and that no case was made out, there is no justification in holding that the bar under S.18 would apply in those cases. Of course, the perpetrators of atrocities against members of the SC & ST cannot be and should not be granted anticipatory bail as there is every likelihood that the accused would terrorise them. However, the Apex Court has consistently held that innocent persons against whom there was no prima facie case for having violated the provisions of Act 33 of 1989 cannot be subjected to the same treatment as the persons who are prima facie perpetrators of the crime._ _8. As held by the Apex Court mere unilateral allegation by any individual belonging to any caste, when such allegation is clearly motivated and false, cannot be accepted as gospel truth to deprive a person of his liberty without an independent scrutiny. The exclusion of provision of anticipatory bail cannot possibly be treated as applicable when no case is made out or allegations are patently false or ill motivated. The protection of innocents against abuse of law is part of inherent jurisdiction of court being part of access to justice and to protect individual liberty against any oppressive action. At the same time, S.18 of the Act would apply in all its vigor in deserving cases where on evaluation of the prosecution allegation, the court finds the case to be prima facie genuine warranting custodial interrogation and pre-trial arrest and detention.”_ **CRL.A.No.1227 OF 2019** **7** 8. It is indisputable that the 1[st] appellant is a retired Chief Scientist of the Kerala Forest Research Institute, which is an eminent research institution under the Science and Technology Department and Forest Department of the Government of Kerala. After his retirement, he is now working as Director of Research, IRTC, Mundur. The 2[nd] appellant is a responsible officer in the Forest Department of the Government of Kerala. The property disputes are pending in the matter as can be seen from Annexure-II original suit, Annexure-I injunction order dated 24.12.2018. Criminal proceedings have also been set in motion by the wife of the 1[st] appellant, which has now led to Annexure-IV, protest complaint filed by her before the learned Magistrate. Two days prior to the incident in the instant said crime, the 1[st] appellant's son has submitted Annexure-V, complaint dated 01.10.2019 before the SI of Police, Kalladikode Police Station apprehending trouble being created by the political supporters of the abovesaid Panchayat committee members. At times, the task of this Court in evaluating the case to find out as to whether the bar under Secs.18 and 18A of the SC/ST (POA) Act, 1989 would apply or not, it is indeed quite arduous and difficult. But merely because at times, the terrain may be difficult, will not lead to situation that this Court will have to abdicate its constitutional and statutory duty to adjudicate the case in a fair and special manner and also to ensure that the liberties of citizens, who are otherwise arrayed as accused is not disproportionately or unreasonably curtailed. **CRL.A.No.1227 OF 2019** **8** 9. Taking note of the cumulative facts and circumstances of this case, this Court is inclined to take the view that the present criminal proceedings initiated against the appellants have arisen predominantly out of property disputes. The incident is said to have happened on 03.10.2019 whereas the FIR has been lodged only as late as on 14.10.2019. The abovesaid view has been rendered by this Court only for the limited purpose of consideration of the anticipatory bail plea. Civil proceedings and the criminal proceedings have already been initiated by the wife of the 1[st] appellant as stated hereinabove. In the light of these aspects, this Court is not in a position to accept the version projected in the impugned present FIR, so as to deny the consideration of the pleas of the petitioner. As the impugned criminal proceedings predominantly appear to be tainted by malafides and ulterior considerations and in view of the abovesaid legal principles already laid down by this Court in a series of cases, this Court is constrained to take the view that as the bar under Secs.18 and 18A of the SC/ST (POA) Act, 1989 will not apply in this case. Hence, this Court is empowered under Sec.436 of the Cr.P.C. to consider the plea of the appellants for grant of anticipatory bail on merits. The Sessions Court has gone wrong in not taking into account these crucial and relevant aspects of the matter. Accordingly, it is ordered in the interest of justice that the impugned order passed by the Special Court concerned will stand set aside. Further, it is ordered in the interest of justice that in the event of the **CRL.A.No.1227 OF 2019** **9** appellants being arrested by police in connection with Crime No.314/2019 of Kalladikode Police Station, then they shall be released on bail on their separately executing bonds for Rs.40,000/- (Rupees Forty Thousand only) each and on separately furnishing two solvent sureties for the likesum, both to the satisfaction of the Investigating Officer concerned. 10. Further it is ordered that it will be subject to following conditions:- _(1) The appellants shall not involve in any criminal offences of similar nature._ - _(2) The appellants shall fully co-operate with the investigation. (3) The appellants shall report before the Investigating Officer as and when required in that connection._ _(4) The appellants shall not influence witness or shall not tamper or attempt to tamper evidence in any manner, whatsoever._ _(5) If there is any violation of the abovesaid conditions by the appellants then the jurisdictional court concerned will stand hereby empowered, to consider the plea for cancellation of bail at the appropriate time._ With these observations and directions, the above Crl. Appeal will stand disposed of. Sd/- ## **ALEXANDER THOMAS, JUDGE** SKS **CRL.A.No.1227 OF 2019** **10** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE I** **TRUE COPY OF THE INJUNCTION ORDER ISSUED IN FAVOUR OF THE PETITIONER BY THE MUNSIFF'S COURT, MANNARKAD.** **ANNEXURE II** **TRUE COPY OF THE PLAINT IN OS NO.159/2018 BEFORE THE MUNSIFF'S COURT, MANNARKAD.** **ANNEXURE III** **TRUE COPY OF THE COMMISSION REPORT PREPARED BY THE ADVOCATE COMMISSIONER IN OS NO.159/2018.** **ANNEXURE IV** **TRUE COPY OF THE COMPLAINT IN CMP NO.444/2019 SUBMITTED BY THE WIFE OF THE FIRST APPELLANT BEFORE THE JUDICIAL MAGISTRATE OF FIRST CLASS, MANNARKAD.** ## **ANNEXURE V** **TRUE COPY OF THE COMPLAINT DATED 01/10/2019 LODGED BY THE SON OF THE FIRST APPELLANT BEFORE THE SUB INSPECTOR OF POLICE, KALLADIKODE, ALONG WITH RECEIPT DATED 01/10/2019.** ## **ANNEXURE VI** **TRUE COPY OF THE COMPLAINT FILED BY THE WIFE OF THE FIRST APPELLANT BEFORE THE SUB INSPECTOR OF POLICE, KALLADIKODE, ALONG WITH RECEIPT.**