Jayan P. and Others v. State of Kerala and Sunil P.C.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **WEDNESDAY,THE 13[TH] DAY OF DECEMBER 2023/22ND AGRAHAYANA, 1945 CRL.APPEAL NO. 1844 OF 2023** **AGAINST THE ORDER DATED 21.11.2023 CRMC 1951/2023 OF** **SESSSIONS COURT, KOZHIKODE** **APPELLANTS/ACCUSED NOS.2, 3, 5, 4 & 1:** - **1 JAYAN P., AGED 65 YEARS S/O GOVINDAN, PUTTAT HOUSE ERANIHIKKAL P.O KOZHIKODE TALUK, PIN – 673303.** - **2 JIGIL P., AGED 30 YEARS S/O JAYAN P, PUTTAT HOUSE ERANIHIKKAL P.O KOZHIKODE TALUK, PIN – 673303.** - **3 AGEESH M., AGED 37 YEARS S/O VASU M KOKOLITHAZHATH, ERANHIKKAL P.O KOZHIKODE TALUK, PIN – 673303.** - **4 AKHILESH M., AGED 42 YEARS S/O VASU M KOKOLITHAZHATH, ERANHIKKAL P.O KOZHIKODE TALUK, PIN – 673303.** - **5 GIRISH P., AGED 52 YEARS, S/O IMBICHI, PUTTAT HOUSE, ERANHIKKAL P.O KOZHIKODE TALUK, PIN – 673303.** **BY ADVS. SHARAN SHAHIER STEPHY MARY SAJI ITTY PAULSON TREESA SHAJI** 2 Crl.Appeal No.1844 of 2023 ## **RESPONDENTS/STATE & DEFACTO COMPLAINANT:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031.** - **2 SUNIL P C S/O CHANDRAN, CHADRAKANTHAM HOUSE, ERANHIKKAL P.O KOZHIKODE TALUK, PIN – 673303.** - **R1 BY SMT.MAYA M.N., PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 08.12.2023, THE COURT ON 13.12.2023 DELIVERED THE FOLLOWING:** 3 Crl.Appeal No.1844 of 2023 ## **P.G. AJITHKUMAR, J.** **----------------------------------------------------------Crl.Appeal No.1844 of 2023** **----------------------------------------------------------Dated this the 13[th] day of December, 2023** ## **JUDGMENT** This is an appeal filed under Section 14A of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 [SC/ST (POA) Act]. 2. The petitioners are accused in Crime No.866 of 2023 of Elathur Police Station. That crime was registered alleging offences punishable under Section 506 read with Section 34 of the Indian Penal Code, 1860 (IPC) and Sections 3(1)(f) and 3(1)(s) of the SC/ST (POA) Act. The allegation constituting the aforesaid offences are that the petitioners, who belonged to an upper caste, obstructed the pathway being used by the de facto complainant to reach his house with the knowledge that he belongs to a Scheduled Caste. It was also alleged that the petitioners erected a fence to block the pathway and the de facto complainant was threatened to kill and also hurled abusive and ridiculing words stating his caste name. 4 Crl.Appeal No.1844 of 2023 3. The appellants filed Crl.M.C.No.1951 of 2023 before the Sessions Court, Kozhikode. As per the order dated 21.11.2023, the Sessions Court dismissed their application for anticipatory bail. Aggrieved by the said order, this appeal has been filed. 4. Heard the learned counsel for the appellants and the learned Public Prosecutor. 5. Despite giving notice to the de facto complainant, he did not choose to appear before the Court. 6. Annexure A is a copy of I.A.No.2 of 2023 in O.S.No.393 of 2023 pending before the Munsiff’s Court-I, Kozhikode. Annexure B is a copy of the order dated 04.10.2023 of the Munsiff restraining the de facto complainant and a few others from trespassing into the property of one Smt.Draupadi, which according to the appellants, is the property in dispute. It is the contention of the appellants that in retaliation to the said civil dispute, the 2nd respondent lodged a false complaint against the appellants. 5 Crl.Appeal No.1844 of 2023 7. The aforesaid submissions of the learned counsel for the appellants were controverted by the learned Public Prosecutor. It is further submitted that in the investigation, causing of obstruction in the pathway used by the de facto complainant and his relatives and also abusing and threatening them by the appellants have been revealed. The learned Public Prosecutor accordingly submitted that the bar under Section 18 of the SC/ST (POA) Act gets attracted in this case and hence no anticipatory bail can be granted to the appellants. 8. From the F.I. statement or the report of the investigating officer, which are made available for my perusal, it is not able to find that the de facto complainant and his relatives were abused by calling their caste name within public view. If so, it cannot prima facie be said that an offence under Section 3(1)(s) of the SC/ST (POA) Act was committed by the appellants. 9. As stated, a civil suit between the parties concerning the pathway in dispute is pending. There is an 6 Crl.Appeal No.1844 of 2023 order of temporary injunction in that suit against the de facto complainant and others. It is in respect of that pathway, there occurred the alleged incident, which resulted in registration of the present crime. An offence under Section 3(1)(f) of the SC/ST (POA) Act will be attracted if the obstruction is in respect of a property owned, possessed or allotted to a member of the Scheduled Caste or a Scheduled Tribe. When the suit between the parties is pending before the civil court, it is possible to find prima facie that the alleged act of obstructing the pathway is an offence under Section 3(1)(f) of the SC/ST Act. 10. In **Subhash Kashinath Mahajan v. State of Maharashtra [(2018) 6 SCC 454],** the Apex Court after considering the provisions of the SC/ST Act and various decisions including the one in **N.T.Desai v. State of Gujarat [1997 (2) GLR 942],** issued a few guidelines for dealing with the applications for anticipatory bail, arrest of public servant and quashing of FIRs about offences under the SC/ST Act. In **Union of India v. State of Maharashtra [(2020) 4 SCC** 7 Crl.Appeal No.1844 of 2023 **761],** a three-judge Bench of the Apex Court reviewed the aforesaid decision and directions Nos. iii and iv in that decision were recalled. Consequently, direction No.v was held to fade away. Direction No.ii however remains which reads: “ii) There is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide. We approve the view taken and approach of the Gujarat High Court in **Pankaj D Suthar** (supra) and **Dr.NT Desai** (supra) and clarify the judgments of this Court in **Balothia** (supra) and **Manju Devi** (supra);” 11. A Three judge bench of the Apex Court in **Prathvi** **Raj Chauhan v. Union of India [(2020) 4 SCC 727],** observed that if a prima facie case has not been made out attracting the provisions of SC/ST Act, the bar created by Section 18 on anticipatory bail is not attracted. The Apex Court reiterated the said principle in **Haji Iqbal v State of UP and Others [AIR 2023 SC 3964]** . The Apex Court also explained how the prosecution case has to be approached when there is an allegation that the complaint was instituted with the ulterior motive of wreaking vengeance. It was held 8 Crl.Appeal No.1844 of 2023 that if there is an allegation that the prosecution was launched with the ulterior motive of wreaking vengeance and proves manifestly frivolous or vexatious, the court owes a duty to look into the FIR with care and a little more closely. It was also observed that once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc, then he would ensure that the complaint is very well drafted with all necessary pleadings. Bearing the above in mind, the complaint in this case and the attending circumstances are to be appreciated. 12. Viewed the facts and circumstances of this case, which are adverted to above, and in the light of the law laid down in the aforesaid decisions, bar under Section 18 of the SC/ST (POA) Act does not apply to this case. Therefore, the appellants can be granted anticipatory bail. Accordingly, this appeal is allowed. The impugned order is set aside. In the event of arrest, the investigating officer shall, after interrogation and other processes of investigation, release the appellants on bail on the execution of bonds for Rs.50,000/- 9 Crl.Appeal No.1844 of 2023 (Rupees fifty thousand only) each, with two solvent sureties for the like amount each, to the satisfaction of the investigating officer, and on the following conditions: - (i) The appellants shall not influence or intimidate the defacto complainant or witnesses or tamper with evidence; - (ii) They shall appear before the investigating officer as and when called for; and - (iii) During the bail period, they shall not get involved in any offence. In case of breach of the bail conditions, the prosecution shall be at liberty to apply for cancellation of the bail before the jurisdictional court. It is made clear that the observations made above are to decide the bail application only. Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr 10 Crl.Appeal No.1844 of 2023 ## **APPENDIX OF CRL.A 1844/2023** **PETITIONER ANNEXURES ANNEXURE A A COPY THE INJUNCTION IA 2/2023 IN OS NO. 393/2023 DATED 04.10.2023 PENDING BEFORE THE MUNSIFF'S COURT I KOZHIKODE ANNEXURE B THE TRUE COPY OF THE ORDER PASSED IN IA 2/2023 IN OS NO. 393/2023 DATED 04.10.2023 ANNEXURE C CERTIFIED COPY OF THE ORDER IN BAIL APPLICATION FILED BY THE APPELLANTS IN CRLMC 1951/2023 BEFORE THE SESSION COURT KOZHIKODE DATED 21/11/2023**