Dr. Rejeesh R. v. M.A. Raveendran and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY, THE 19TH DAY OF MAY 2020 / 29TH VAISAKHA, 1942** ## **CRL.A.No.228 OF 2020** **AGAINST THE ORDER IN CRMP 963/2019 IN CRIME NO.841/2019 PASSED BY THE COURT OF THE JUDGE, SPECIAL COURT FOR SC/ST (PREVENTION OF ATTROCITIES) ACT, MANNARKKAD** ## **APPELLANT/DE FACTO COMPLAINANT:** **DR.REJEESH.R. AGED 35 YEARS S/O.RAVEENDRAN, REJEESH BHAVAN, CMC 17, CHERTHALA P.O., CHERTHALA, ALAPPUZHA, KERALA-685 524.** **BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.P.J.JOE PAUL SRI.MANU SRINATH SRI.RAJAN G. GEORGE** ## **RESPONDENTS/ACCUSED:** **1 DR.M.A.RAVEENDRAN AGED 64 YEARS S/O.AYYAPPAKUTTY, HOD, GENERAL MEDICINE, GOVERNMENT MEDICAL COLLEGE HOSPITAL, PALAKKAD-678 013. 2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. (CRIME NO.841/2019 OF TOWN SOUTH POLICE STATION, PALAKKAD). R1 BY ADV. SRI.S.RAJEEV R1 BY ADV. SRI.V.VINAY R1 BY ADV. SRI.D.FEROZE R1 BY ADV. SRI.K.ANAND (A-1921)** **SRI RAMESH CHAND-PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18-03-2020, THE COURT ON 19-05-2020 DELIVERED THE FOLLOWING:** Crl.Appeal No.228/2020 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.Appeal No.228 of 2020 ---------------------------------------Dated this the 19[th] day of May, 2020 ## **J U D G M E N T** This appeal is filed under Section 14A(2) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'the Act'). 2. The appellant is the de facto complainant and the first respondent is the accused in the case registered as Crime No.841/2019 of the Town South Police Station, Palakkad under Section 3(1)(u) of the Act. 3. The case was registered against the first respondent on the basis of the first information statement given to the police by the appellant. The material averments in the first information statement are as follows: The appellant is working as a Lecturer in the Palakkad Government Medical College. He is a person who Crl.Appeal No.228/2020 3 belongs to a scheduled caste. The first respondent is the Head of Department of General Medicine in the college. He is a person who does not belong to any scheduled caste or scheduled tribe. On 20.6.2019, at about 11.00 hours, a departmental meeting was conducted in the college. Many Associated Professors of the college attended that meeting. In the meeting, the first respondent made a statement as follows: _”72% of students in the college are persons who belong to scheduled castes and scheduled tribes. They are students who have secured above the rank of one lakh. They are students of fourth grade. Even if they are tutored seriously, they would not be able to understand anything. If they make any complaint, the job of the teachers would be lost. Therefore, it is only necessary to teach them accordingly_ ”. The statement so made by the first respondent was with the intention to insult persons who belong to scheduled castes and scheduled tribes. 4. The first respondent made application before the Special Court for granting him anticipatory bail in the case. As per the impugned order, the learned Special Judge allowed the 4 Crl.Appeal No.228/2020 application and granted him pre-arrest bail. Being aggrieved, this appeal is filed by the de facto complainant under Section 14A(2) of the Act. 5. Heard the learned counsel for the appellant and the first respondent and also the learned Public Prosecutor. Perused the case diary. 6. Learned counsel for the appellant contended that, the learned Special Judge granted anticipatory bail to the first respondent ignoring the bar under Sections 18 and 18A(2) of the Act. Learned counsel for the appellant further contended that, the learned Special Judge did not consider, whether the allegations raised against the first respondent, prima facie, attract the offence punishable under Section 3(1)(u) of the Act. 7. _Per contra,_ learned counsel for the first respondent contended that the complaint against the first respondent was made by the appellant with the malafide intention to prevent his appointment as the Principal of the college. Learned counsel for the first respondent would also contend that the statement made by the first respondent in the departmental meeting was Crl.Appeal No.228/2020 5 with a view to improve the quality of education in the college and not with the intention to promote enmity, ill-will or hatred against persons who belong to scheduled castes or scheduled tribes. 8. Learned Public Prosecutor has submitted that, after completing the investigation of the case, the competent officer has filed final report against the first respondent in the Special Court, alleging commission of an offence punishable under Section 3(1)(u) of the Act. 9. Section 18 of the Act states that, nothing in Section 438 of the Code of Criminal Procedure shall apply in relation to any case involving arrest of any person on an accusation of having committed an offence under the Act. Section 18A(2) of the Act provides that, the provisions of Section 438 of the Code shall not apply to a case under the Act, notwithstanding any judgment or order or direction of any Court. 10. Sections 18 and 18A(2) of the Act create a bar to grant anticipatory bail. However, a duty is cast on the Court to verify the averments in the first information statement or the complaint Crl.Appeal No.228/2020 6 and to find out whether an offence under the Act has been prima facie made out (See **Vilas Pandurang Pawar v. State of Maharastra : AIR 2012 SC 3316** ). If the averments in the complaint do not make out a prima facie case against the accused under the provisions of the Act, the bar created by Sections 18 and 18A(2) of the Act shall not apply (See **Prathvi Raj Chauhan v. Union of India : AIR 2020 SC 1036** ). Notwithstanding the incorporation of Section 18A(2) in the Act, the power of the Special Court or the High Court to decide whether the allegations raised against the accused, on their face value, attract the ingredients of the offences under the Act, is not taken away. The court has got power to decide whether there is real accusation against a person of having committed an offence under the Act. Judicial scrutiny is permissible to examine facts of a case to find out whether, _prima facie_ , an offence under the Act has been committed or not by a person, before refusing him the benefit of anticipatory bail. If it is found by the Court that a _prima facie_ case is not made out against the accused and that the allegations against the accused do not attract any offence Crl.Appeal No.228/2020 7 under the Act, the bar under Sections 18 and 18A(2) of the Act against granting anticipatory bail, does not come into play (See **Binesh v. State of Kerala : 2020 (1) KHC 240: 2020 (1) KLT 328** ). 11. Learned counsel for the appellant contended that, the learned Special Judge did not specifically consider whether the allegations raised against the first respondent, prima facie, constitute the ingredients of an offence punishable under Section 3(1)(u) of the Act. Learned counsel would contend that the learned Special Judge has made an attempt to probe into the mind of the first respondent and to reach a conclusion that the first respondent had only good intention in making the statement in the departmental meeting. 12. I find considerable force in the aforesaid contention raised by the appellant. On the basis of surmises and conjectures, the learned Special Judge has taken pains to probe into the mind of the accused and to make a positive conclusion that it was with good intention that the accused made the statement. The question of intention must depend on the totality Crl.Appeal No.228/2020 8 of facts and circumstances. Knowledge of the consequences and an act with such knowledge may legitimately raise the presumption regarding the requisite culpable intention. Every person must normally be assumed to intend the reasonable consequences of his conduct. At the stage of granting anticipatory bail, when the entire evidence has not been collected, it would be premature for a court to come to a conclusion that the offender had no culpable intention. It is a matter to be probed into in detail at the stage of weighing the evidence after the trial. 13. While considering the application for bail, scope for appreciation of evidence and other material on record is limited. Court is not expected to indulge in critical analysis of the evidence on record. When a provision has been enacted in the Act to protect the persons who belong to the scheduled castes and the scheduled tribes and a bar has been imposed in granting anticipatory bail, the provision in the Act cannot be easily brushed aside by elaborate discussion on the evidence (See **Vilas** **Pandurang Pawar v. State of Maharastra : AIR 2012 SC** Crl.Appeal No.228/2020 9 ## **3316)** . 14. Now, final report has been filed in the case against the accused. At this stage, this Court does not propose to consider the entire statements of witnesses and the materials collected by the investigating officer during the investigation to find out whether a prima facie case has been made out against the accused for an offence punishable under Section 3(1)(u) of the Act. If such exercise is taken by this Court it is likely to cause prejudice not only to the first respondent but also to the appellant in the trial of the case. Therefore, what this court proposes to do is only to find out, whether the allegations raised against the first respondent in the first information statement, prima facie constitute the ingredients of an offence punishable under Section 3(1)(u) of the Act 15. Section 3(1)(u) of the Act states that, whoever, not being a member of a scheduled caste or a scheduled tribe, by words either written or spoken or by signs or by visible representation or otherwise promotes or attempts to promote feelings of enmity, hatred or ill-will against members of the Crl.Appeal No.228/2020 10 scheduled castes or the scheduled tribes shall be liable to the punishment prescribed. 16. In order to attract the offence punishable under Section 3(1)(u) of the Act, the accused should have, by words or by signs or by visible representation, promoted or made attempt to promote feelings of enmity, hatred or ill-will against members of the scheduled castes or the scheduled tribes. Promoting or attempting to promote feelings of enmity, hatred or ill-will against persons who belong to scheduled castes or scheduled tribes is the gist of the offfence. 17. In the instant case, the statement allegedly made by the first respondent, cannot certainly promote feelings of enmity or ill-will against members of the scheduled castes or the scheduled tribes. At any rate, in the first information statement, the appellant has not stated that the words spoken to by the first respondent in the meeting had the effect of promoting feelings of enmity or ill-will against members of the scheduled castes or the scheduled tribes. 18. Then, the only remaining question is whether the 11 Crl.Appeal No.228/2020 statement allegedly made by the first respondent in the departmental meeting had the effect of promoting feelings of hatred against members of the scheduled castes or the scheduled tribes. The statement made by the first respondent conveys an idea or message that the students who belong to scheduled castes or scheduled tribes are educationally very backward and that they are fourth grade students who are incapable of understanding anything, even if they are tutored or taught well. The effect of the statement made by the first respondent has to be judged by the standards of the persons who had heard it. The first respondent has made the alleged statement in a departmental meeting. It was not a public meeting. The persons who participated in the meeting were Associated Professors and the teachers of the college. They are persons well educated. In my view, prima facie, the statement of the first respondent, was not likely to promote any feelings of hatred against students who belonged to the scheduled castes or the scheduled tribes. 19. In other words, prima facie, the averments in the first Crl.Appeal No.228/2020 12 information statement do not attract the offence punishable under Section 3(1)(u) of the Act. If that be so, the bar under Sections 18 and 18A(2) of the Act is not applicable to the facts of the present case. It follows that, the order of the learned Special Judge granting anticipatory bail to the first respondent is sustainable in law, though for reasons other than stated in the impugned order. 20. There is also another reason, which restrains this Court, from interfering with the impugned order. The impugned order granting anticipatory bail to the first respondent was passed on 27.11.2019. This appeal was filed on 12.2.2020. After completing investigation, final report has been filed in the competent court on 31.1.2020. The appellant has no case that, after the passing of the impugned order, the first respondent has in any manner misused his liberty by influencing, or threatening or intimidating the prosecution witnesses. Cancellation of bail is a harsh order which interferes with the liberty of the individual and it shall not be lightly resorted to. It is trite law that cancellation of bail can be done only in cases where the order granting bail Crl.Appeal No.228/2020 13 suffers from serious infirmities resulting in miscarriage of justice. In the instant case, the impugned order suffers from an infirmity for the reason that the learned Special Judge made an attempt to probe into the mind of the accused to ascertain whether his intention was good or bad. But, this Court, on independently considering the averments in the first information statement has found that, prima facie, an offence punishable under Section 3(1) (u) of the Act is not made out. In such circumstances, the impugned order of the court below, granting anticipatory bail to the first respondent, cannot be interfered with. The appeal is liable to be dismissed. 21. Consequently, the appeal is dismissed. However, it is made clear that whatever findings made by this Court in this judgment are based only on the basis of the averments contained in the first information statement and that such findings shall not influence the trial court while appreciating the evidence which may be adduced in the case. I also make it clear that, the trial court shall appreciate the evidence that may be adduced during the trial of the case, by ignoring whatever findings made by it in 14 Crl.Appeal No.228/2020 the impugned order regarding the intention of the accused in making the alleged statement. **R.NARAYANA PISHARADI, JUDGE** al/- Crl.Appeal No.228/2020 15 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** ## **ANNEXURE I** **TRUE COPY OF FIRST INFORMATION REPORT IN CRIME NO.841/2019 BY THE TOWN SOUTH POLICE STATION, PALAKKAD ALONG WITH THE FIRST INFORMATION STATEMENT DATED 16.11.2019.** ## **ANNEXURE II** **CERTIFIED COPY OF THE ORDER DATED 27.11.2019 IN CRL.MP NO.963/2019 IN CR.NO.841/2019 PASSED BY THE COURT OF THE JUDGE, SPECIAL COURT FOR SC/ST(POA) ACT, MANNARKAD.** ## **RESPONDENTS' EXHIBITS: NIL** TRUE COPY PS TO JUDGE