Iqbal and Mujeeb v. State of Kerala

## **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.1228 OF 2019** **CRL.M.P 688/2019 DATED 18-10-2019 OF SPECIAL COURT FOR SC/ST(POA) ACT, MANNARKKAD** **CRIME NO.338/2019 OF HEMAMBIKA NAGAR POLICE STATION, PALAKKAD** ## **PETITIONERS/ACCUSED 1 & 2:** **1 IQBAL, AGED 43 YEARS, S/O.PAREETH, THAZHEMURALI, INDUSTRIAL ESTATE, PALAKKAD. 2 MUJEEB, AGED 45 YEARS, S/O.PAREETH, THAZHEMURALI, INDUSTRIAL ESTATE, PALAKKAD. BY ADV. SRI.L.RAJESH NARAYAN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY DEPUTY SUPERINTENDENT OF POLICE, PALAKKAD DISTRICT, HEMAMBIKA NAGAR POLICE STATION, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 020.** ## **SRI.T.R.RENJITH, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 06.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## ALEXANDER THOMAS, J. -------------------------------------Crl.Appeal No. 1228 of 2019 -------------------------------------Dated this the 6[th] day of November, 2019 ## J U D G M E N T Being aggrieved by the impugned order dated 18.10.2019 rendered by the Special Court concerned in rejecting the plea of the appellants for grant of anticipatory bail, the appellants herein have preferred the instant Criminal Appeal under Sec.14A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, as amended [SC/ST (POA) Act for short]. The appellants herein have been arrayed as the two accused in the instant Crime No.338/2019 of Hemambika Nagar Police Station, Palakkad, for offences punishable under Secs.143, 147, 148, 323, 324, 341, 354, 427, 448, 452 r/w 149 of the IPC and Secs.3(1)(r)(s)(w)(l) & 3(2)(va) of the SC/ST (POA) Act. The said crime has been registered on the basis of FIS given by the lady defacto complainant on 30.9.2019 at about 7 pm in respect of the alleged incidents which have happened on 29.9.2019 at about 12.30 pm. 2. The brief of the prosecution case is that, on 29.9.2019 Crl.Appeal No. 1228 of 2019 **==> picture [19 x 9] intentionally omitted <==** at about 12.30 pm on seeing the accused persons placing septic pipe over the disputed property, when the defacto complainant who belongs to Scheduled Caste had questioned the same and the accused persons had beaten her using a stick, and A2 had called her using her caste name and thereafter the accused persons trespassed into the house of the defacto complainant and A1 had torn her blouse and humiliated her by calling her caste name,etc. 3. The counsel for the appellants would urge that the abovesaid allegations are absolutely false and fabricated, and the truth of the matter is other way round. Further that, there are property disputes going on between the father of the appellants and the lady defacto complainant, and in respect of the original suit proceedings and the appeal suit which has emanated there from, the father of the appellants has now filed regular second appeal RSA No.639/2018 before this Court, wherein this Court had admitted the appeal and granted stay of further proceedings by order dated 6.7.2018 in relation to a suit for specific performance which was allowed by the trial court and modified in appeal. The abovesaid lady defacto complainant “Kalyani” and her son and daughter-in-law about whom reference is made in the impugned FIS are the defendants in the said Crl.Appeal No. 1228 of 2019 **==> picture [19 x 9] intentionally omitted <==** original suit which was initially decreed in favour of the father of the appellants and later modified in appeal and now pending as regular second appeal in this Court, wherein the appellants' father has also obtained interim order from this Court on 6.7.2018. Further it is pointed out that the lady defacto complainant and her son and daughter-in-law have frequently created disruptions in the peaceful enjoyment of the property by the appellants' father and has resulted in the interference and obstructions and the appellants' father again filed yet another civil suit as O.S. No. 138/2019 before the Munsiff Court, Palakkad, for injunction and the said Court as per Anx.A3 order dated 9.4.2019 has granted interim injunction order whereby the lady defacto complainant, her son and daughter-in-law, who are the defendants therein, have been restrained. It is pointed out by the appellants that it is only as a counterblast to the abovesaid civil proceedings which have been successfully by the appellants' father that the lady defacto complainant and her family members have devised an ingenious method of raising false allegations in the instant criminal proceedings with an evil motive that the appellants' should be denied even bail. Accordingly it is urged by the appellants' counsel that since the impugned criminal proceedings are taken by malafides Crl.Appeal No. 1228 of 2019 **==> picture [19 x 9] intentionally omitted <==** and extraneous and ulterior considerations, not even a prima facie case of substance under the abovesaid Act is disposed in the instant case, and therefore bar under Sec.18 & Sec.18A of the abovesaid Act in the consideration of the anticipatory bail plea will not apply in this case and this Court may grant anticipatory bail to the appellants, etc. 4. The learned Prosecutor has strongly opposed the plea for anticipatory bail and has pointed out that the abovesaid statutory bar will apply in this case. 5. It has been held by this Court in various decisions as in _**Jishnu v. State of Kerala** [_ _**2019(1) KLT 432** ]_ that if a person is able to show prima facie that he has not committed any atrocity against a member of a Scheduled Caste and Scheduled Tribe and that the allegation was malafide and prima facie false and that no case was made out, then there is no justification in holding that the bar under Sec.18 & Sec.18A would apply in those cases. Further it also has been held therein that unilateral allegation by any individual belonging to any caste and when such allegations are clearly motivated and false cannot be accepted as gospel truth to deprive a person of his liberty without an independent scrutiny. It will be profitable to refer to paragraphs 6 & 8 of the abovesaid decision of this Court in _**Jishnu's**_ Crl.Appeal No. 1228 of 2019 ..6.. ## case supra in _**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._ **==> picture [273 x 10] intentionally omitted <==** _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.”_ 6. After hearing both sides and after careful evaluation of the facts and circumstances of the case, it is seen that a spate of civil litigative proceedings have been initiated by the father of the appellants against the defacto complainant, her son and daughter-inlaw, in respect of a subject property which arose out of a dispute Crl.Appeal No. 1228 of 2019 **==> picture [19 x 9] intentionally omitted <==** regarding specific performance and the plaintiff could succeed in the suit and in the first appeal the matter was modified, and later now the matter is pending as regular second appeal before this Court in which interim order has also been granted to the father of the appellants. Further the father of the appellants have even been driven to file yet another civil suit as O.S. No.138/2019 before the Munsiff Court, Palakkad, wherein interim injunction had already been granted by the said Court as per Anx.A3 order dated 9.4.2019. Therefore there is strong force in the abovesaid contentions raised by the appellants that the abovesaid impugned criminal proceedings got registered on 29.9.2019 is only a is only a counter blast to the abovesaid civil proceedings that has so far been successfully prosecuted by the appellants father against the lady defacto complainant and her close relatives. There is also force in the submission made by the counsel for the appellants that, when matters stand so and the father of the appellants could succeed in the civil litigative efforts then ordinarily no reasonable and intruded man would go to the extend of raising any quarrel to the other side by calling caste name etc, and that these relevant circumstances would also indicate prima facie that the false allegations have been made out of malafide and extraneous ..8.. Crl.Appeal No. 1228 of 2019 considerations. Taking into consideration these cumulative factual aspects, this Court is inclined to take the view that prima facie the impugned criminal proceedings appear to be came up by malafides and ulterior considerations and the same would have been initiated only as a counterblast to the civil litigative proceedings set in motion by the father of the appellants against the lady defacto complainant, her son and daughter-in-law, etc as mentioned herein above. The abovesaid view has been rendered by this Court for the limited purpose of the consideration of anticipatory bail plea. Hence, going by the abovesaid dictum laid down by this Court in the aforementioned decisions, this Court is constrained to take the view that the bar under Sec.18 & Sec.18A of the abovesaid Act would not apply, as there is no prima facie case of substance as per the SC/ST (POA) Act is disclosed in the instant case, and therefore the abovesaid statutory bail would not apply. In other words, this Court is empowered under Sec.438 of the Cr.P.C. to consider the plea for anticipatory bail made by the appellants on merits. 7. Taking into account these aspects, it is ordered in the interest of justice that in the event of the appellants being arrested by police in connection with the abovesaid crime, they shall be released Crl.Appeal No. 1228 of 2019 ..9.. on bail on their separately executing bonds for Rs.40,000/- each and on their separately furnishing two solvent sureties each for the like sum, both to the satisfaction of the Investigating Officer concerned. However, the grant of bail will be subject to following conditions:- - _i. The appellants shall not involve in any criminal offences of similar nature._ - _ii. The appellants shall fully co-operate with the investigation._ - _iii. The appellants shall report before the Investigating Officer as and when required in that connection._ - _iv. The appellants shall not influence witness or shall not tamper or attempt to tamper evidence in any manner, whatsoever._ If there is any violation of the abovesaid conditions by the appellants then the jurisdictional court concerned stand hereby empowered, to consider the plea for cancellation of bail at the appropriate time. With these observations and directions, the above Criminal Appeal will stand disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG Crl.Appeal No. 1228 of 2019 ..10.. ## **APPENDIX** ||**APPENDIX**| |---|---| |**PETITIONER'S/S**|**EXHIBITS:**| |**ANNEXURE A1**|**TRUE TRANSCRIPT OF THE FIS DATED 30/9/2019.**| |**ANNEXURE A2**|**TRUE COPY OF THE PLAINT DATED 26/3/2019.**| |**ANNEXURE A3**|**TRUE EXTRACT OF THE PROCEEDINGS.**| |**ANNEXURE A4**|**CERTIFIED COPY OF THE ORDER DATED**| ||**18/10/2019 IN CRL.M.P.NO.688/2019 OF THE**| ||**HON'BLE SPECIAL JUDGE OF SC/ST(POA) ACT,**| ||**MANNARKKAD IN CRIME NO.338/19 OF HEMAMBIKA**| ||**NAGAR POLICE STATION.**|