Hima v. Hemand and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN TUESDAY, THE 11[TH] DAY OF APRIL 2023 / 21ST CHAITHRA, 1945** **CRL.A NO. 320 OF 2023** **AGAINST THE ORDER/JUDGMENT IN CRMC 314/2023 OF DISTRICT COURT &** **SESSIONS COURT, ERNAKULAM** ## **APPELLANT/DEFACTO COMPLAINANT:** HIMA, AGED 33 YEARS W/O.SALIMKUMAR, AUSSERI HOUSE, THRIKKADAPPILLY DESOM, CHERAI, PALLIPPURAM, ERNAKULAM, PIN - 683514 BY ADVS. C.A.CHACKO C.M.CHARISMA ## **RESPONDENTS/PETITIONERS & RESPONDENT/ACCUSED & COMPLAINANT:** 1 HEMAND, AGED 18 YEARS S/O.MAHESH, THIRUTHI HOUSE, CHERAI, CHERAI.P.O., ERNAKULAM, PIN - 683514 2 MAHESH, AGED 50 YEARS S/O.VENU, THIRUTHI HOUSE, CHERAI, CHERAI.P.O., ERNAKULAM, PIN - 683514 3 VENU, AGED 71 YEARS S/O.NANU, THIRUTHI HOUSE, CHERAI, CHERAI.P.O., ERNAKULAM, PIN - 683514 4 STATION HOUSE OFFICER MUNAMBAM POLICE STATION, MUNAMBAM, ERNAKULAM-683515, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 5 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 BY ADV T.M.SUDHEER **OTHER PRESENT:** Crl.A.320/2023 2 SR.PP.RENJITH GEORGE THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 05.04.2023, THE COURT ON 11.04.2023 DELIVERED THE FOLLOWING: Crl.A.320/2023 3 ## **JUDGMENT** Dated this the 11[th] day of April, 2023 The appellant is the defacto complainant in Crime No. 86 of 2023, registered at the Munambam Police Station against respondents 1 to 3/accused, alleging commission of offences punishable under Sections 341, 323, 324 and 294(b) read with 34 of Indian Penal Code and Sections 3(1)(e), 3(1)(s) and 3(2)(va) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. 2. In her complaint, the appellant alleged that, at about 7.30 p.m. on 31.01.2023, the first respondent rode his bicycle through the road in front of the appellant's house in a rash and negligent manner. When the appellant's father-in-law asked the first respondent to ride slowly and carefully, since children were playing on the road, the first respondent verbally abused appellant's father-in-law and went back to his house. A little while later, he came to the spot along with respondents 2 and 3 and abused appellant's father-in-law in filthy language. They also pushed down her mother-in-law and brother-in-law, when Crl.A.320/2023 4 they tried to interfere. The 2[nd] respondent forcibly removed the dhoti of appellant's husband, caught hold of appellant's hair and humiliated her using her caste name. In the meanwhile, the first respondent removed a stick from the fence and beat on the head and hands of the appellant's father-in-law. 3. On registration of the crime, respondents 1 to 3 apprehended arrest and therefore, approached the Sessions Court with an application for anticipatory bail. The Sessions Court granted bail to the accused, on the premise that the only non-bailable offence is under Section 3(1)(s) of the PoA Act and the available materials are insufficient to attract that offence. This Crl.Appeal is filed seeking to set aside the order granting pre-arrest bail to respondents 1 to 3. 4. Heard, learned counsel for the rival parties and the Public Prosecutor. 5. Learned Counsel for the petitioner contended that the Sessions Court had committed grave illegality by granting anticipatory bail to the accused, without considering the impact of Section 18 of the PoA Act as also the gravity of the Crl.A.320/2023 5 offences. Further, the finding that the only non-bailable offence is Section 3(1)(s) of the Act is rendered without taking into account the other offences under Sections 3(1)(e) and 3(2)(va)of the SC/ST (PoA) Act. The fact that the appellant's father-in-law had sustained traumatic head injury and hemorrhage on the right temporal region and had to be treated as inpatient at the Medical College Hospital, Kottyam from 01.02.2023 to 05.02.2023, was also not considered. According to the learned counsel, going by the weapon used and gravity of the injury suffered, the offence under Section 326 IPC is also attracted. Reliance is placed on the decision in **Vilas Pandurang Pawar and Another v. State of Maharashtra and Others.** [(2012) 8 SCC 795] and **Bachu Das v. State of Bihar and Others** [(2014) 3 SCC 471] to contend that the court below was duty bound to verify and find out whether the averments in the complaint prima faice made out offence under Section 3 of the SC/ST (PoA) Act. 6. Learned counsel for the accused submitted that the court below having considered all relevant aspects, before Crl.A.320/2023 6 granting bail to respondents 1 to 3, no interference is warranted. It is contended that, even if the averments in the FI Statement are accepted, no offence under the SC/ST (PoA) Act is made out and the offences under the IPC are bailable. As such, the prohibition under Section 18 of the Act is not attracted. 7. Admittedly, the crime is registered for offences punishable under Sections 341, 323, 324 and 294(b) read with 34 of Indian Penal Code and Sections 3(1)(e), 3(1)(s) and 3(2)(va) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. Section 18 of the Act restricts the application of Section 438 of the Code in relation to any case involving the arrest of any person on an accusation of having committed an offence under the Act. In **Vilas Pandurang** (supra) the Apex Court had occasion to consider the bar under Section 18 in relation to offence under Section 3(1) of the Act. The contextually relevant portion of the judgment reads as follows; “ **9.** Section 18 of the SC/ST Act creates a bar for invoking Section 438 of the Code. However, a duty is cast on the court to verify the averments in the complaint and to find out whether an Crl.A.320/2023 7 offence under Section 3(1) of the SC/ST Act has been prima facie made out. In other words, if there is a specific averment in the complaint, namely, insult or intimidation with intent to humiliate by calling with caste name, the accused persons are not entitled to anticipatory bail. **10.** The scope of Section 18 of the SC/ST Act read with Section 438 of the Code is such that it creates a specific bar in the grant of anticipatory bail. When an offence is registered against a person under the provisions of the SC/ST Act, no court shall entertain an application for anticipatory bail, unless it prima facie finds that such an offence is not made out. Moreover, while considering the application for bail, scope for appreciation of evidence and other material on record is limited. The court is not expected to indulge in critical analysis of the evidence on record. When a provision has been enacted in the Special Act to protect the persons who belong to the Scheduled Castes and the Scheduled Tribes and a bar has been imposed in granting bail under Section 438 of the Code, the provision in the Special Act cannot be easily brushed aside by elaborate discussion on the evidence.” Thus, duty is cast on the court to verify the averments in the complaint and find out whether an offence under the Act is prima facie made out. 8. In the case at hand, the court below proceeded on the assumption that the only non-bailable offence is under Section 3(1)(s) of the Act. The assumption is factually Crl.A.320/2023 8 incorrect, since the respondents 1 to 3 are alleged to have committed offences under Sections 3(1)(e) and 3(2)(va) also. Consequently, the finding in the impugned order that the prohibition under Section 18 will not apply is rendered unsustainable. Further, the gravity of the injury sustained and nature of the weapon used are considered in the proper perspective. For the aforementioned reasons, the Crl.Appeal is allowed and the impugned order is set aside, reserving the liberty of respondents 1 to 3 to approach the Sessions Court with a fresh application for anticipatory bail. If such application is filed, the learned Sessions Judge shall pass a reasoned order, after referring to the observations in this order. **Sd/-** **V.G.ARUN** **JUDGE** sb Crl.A.320/2023 9 ## **APPENDIX OF CRL.A 320/2023** PETITIONER ANNEXURES Annexure A1 CERTIFIED COPY OF ORDER DATED 16/2/2023 IN CRL.M.C.NO.314/2023 OF SESSIONS COURT {SPECIAL COURT FOR SCHEDULED CASTES AND SCHEDULED TRIBES [PREVENTION OF ATROCITIES] ACT}, ERNAKULAM Annexure A2 TRUE COPY OF ACCIDENT REGISTER-CUM-WOUND CERTIFICATE OF PETITIONER'S FATHER-IN-LAW CHANDRAN ISSUED FROM TALUK HEAD QUARTERS HOSPITAL, NORTH PARAVUR DATED 31/1/2023 Annexure A3 TRUE COPY OF DISCHARGE SUMMARY ISSUED FROM GOVERNMENT MEDICAL COLLEGE, KOTTAYAM ALONG WITH CT SCAN REPORT OF HEAD OF PETITIONER'S FATHER-IN-LAW CHANDRAN