Jimmy Joseph v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **FRIDAY, THE 25[TH] DAY OF AUGUST 2023 / 3RD BHADRA, 1945** ## **CRL.A NO. 1264 OF 2023** **AGAINST THE ORDER IN CRL.M.C. NO.628/2023 OF THE SPECIAL COURT FOR THE TRIAL OF SC/ST (PREVENTION OF ATROCITIES ACT 1989, THODUPUZHA DATED 07.08.2023 IN CRIME NO.703/2022 OF UPUTHARA POLICE STATION,** ## **IDUKKI** ## **APPELLANT/ACCUSED NO.3:** **JIMMY JOSEPH AGED 52 YEARS (SENIOR GRADE FOREST DRIVER, IDUKKI WILDLIFE SANCTUARY) S/O JOSEPH CHAKKO, VADAKKAN (H), KAANJIYAAR P.O, PIN - 685511 BY ADVS. V.V.NANDAGOPAL NAMBIAR PREEJA. P.VIJAYAN SMITHA (EZHUPUNNA) CHITRA JOHNSON** ## **RESPONDENTS/STATE & DEFACTO COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2 SARUNSAJI S/O SAJIMON, PUTHENPURAKKAL, KANNAMPADY MULLA BHAGAM, MATHAYIPPARA KARA, UPPUTHARA VILLAGE, IDUKKI, PIN - 685505** ## **PP - M P PRASANTH** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 25.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A No. 1264 of 2023 2 ## **JUDGMENT** ## **Dated this the 25[th] day of August, 2023** This appeal has been filed under Section 14A of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, (hereinafter referred to as “the SC/ST (POA) Act” for convenience) at the instance of the 3[rd] accused in Crime No.703/2022 of Upputhara Police Station, Idukki where the prosecution alleges commission of offences punishable under Sections 120B, 167, 195, 204, 211, 341, 348, 465, 294(b), 506(i), 330 and 201 read with 34 of IPC as well as under Section 3(1)(P), 3(1) (S), 3(2)(i), 3(2)(i)(ii), 3(2)(vii) and 3(2)(va) of the SC/ST (POA) Act. 2. Heard the learned counsel for the appellant and the learned Public Prosecutor. Though notice was served upon the defacto complainant as mandated under Section 15 A(3) of the SC/ST (POA) Act and the learned Public Prosecutor placed memo showing service of notice, the defacto complainant did not appear. Crl.A No. 1264 of 2023 3 3. The prosecution case runs on the premise that the accused, in their capacity as Forest officials, had inspected the autorickshaw of the second respondent at the Vanmavu Checkpost in Kizhukkanam Section of Idukki Wildlife Sanctuary at about 9.00 am on 20.09.2022. On inspection, the second respondent was found carrying wild animal meat in his autorickshaw. Thereupon, OR No.1 of 2022 was registered as per Form 1 and report submitted to the Judicial First Class Magistrate Court, Kattappana, alleging commission of offences under Sections 9, 2(16), 2(20), 51(1), 57, 39(1)(6) and 39(3) and Section 429 IPC r/w 34 IPC r/w Sec.56 of the Wild Life Protection Act and Section 61(A) of the Kerala Forest Act. Accordingly, the second respondent was arrested and later remanded to judicial custody till 03.10.2022. Thereafter, as per Annexure A8 order dated 26.09.2022, the custody of the second respondent was given to the Forest Officer for one day. The second respondent was later granted bail on 01.10.2022. The second respondent being a member of the Scheduled Tribe, the tribal leaders and political parties Crl.A No. 1264 of 2023 4 started agitations, alleging that the second respondent was falsely implicated in O.R.No.1/2022 and he was tortured by the forest officials. Much after the second respondent's release, Annexure A1 crime was registered against the appellant and twelve others. Even though appellant moved an application for regular bail before the Special Court, it was dismissed as per Annexure A6 order viz. order in Crl.M.C. No.628/2023 dated 07.08.2023. Now Annexure A6 order is under challenge in this appeal. 4. It is submitted submitted by the learned counsel for the appellant that initially the anticipatory bail plea at the instance of the appellant was dismissed by the Special Court. Thereafter the appellant along with accused Nos. 1, 2, 4 and 6 to 8 filed bail application vide Crl.A. No.817/2023 before this Court. While dismissing the anticipatory bail plea at the instance of accused Nos. 1 to 3, this Court granted anticipatory bail to accused Nos. 4, 6, 7 and 8 by Annexure.A3 order. It is submitted by the learned counsel for the appellant that there are change in circumstances since the investigation has been completed. Crl.A No. 1264 of 2023 5 5. The learned Public Prosecutor opposed grant of bail and submitted that the investigation is going on where arrest and custodial interrogation of the appellant are necesssary. He also submitted that, this Court as per Annexure.A3 order already dismissed the earlier appeal filed by the appellant disallowing anticipatory bail at the instance of accused Nos. 1 to 3, since arrest and custodial interrogation of them are necessary in the facts of the given case. The petition filed for the second time for anticipatory bail before the Special Court after dismissal of the appeal arising from the 1[st] order is misconceived and the same could not be allowed. He also submitted that in this matter, the bar under Section 18 and 18A of the SC/ST (POA) Act would squarely apply. 6. Insofar as grant of anticipatory bail in crimes involving offences under the SC/ST (POA) Act is concerned, the law is well settled. Even after introduction of Section 18A of the SC/ST Act by way of amendment, the Apex Court held in **Prathvi Raj Chauhan v. Union of India(UOI) & Ors., [AIR 2020 SC 1036]** that when the Crl.A No. 1264 of 2023 6 prosecution allegations if constitute _prima facie_ materials to find the commission of offence under the SC/ST Act, grant of anticipatory bail is barred. 7. On perusal of Annexure.A3 order, this Court considered the seriousness of the offence in paragraph No. 8 of the order and found that accused Nos. 1 to 3 cannot be released on anticipatory bail and granted anticipatory bail to accused Nos. 4, 6, 7 and 8. There is no change in the circumstances since investigation of the crime alleging serious offences is continuing, where prosecution case is well made out against the 3[rd] accused and as such grant of anticipatory bail is bared under Section 18 and 18A of the SC/ST (POA) Act. 8. Therefore, dismissal of the 2[nd] bail application by the Special Judge is perfectly in order. The same does not require any interference at the hands of this Court. Accordingly, the criminal appeal stands dismissed. The appellant/3[rd] accused is directed to surrender before the Investigating Officer within three Crl.A No. 1264 of 2023 7 days from today. On failure to surrender, as directed, the Investigating Officer is directed to arrest the appellant/3[rd] accused and proceed with the investigation, without fail. ## **Sd/-** **A. BADHARUDEEN JUDGE** SK Crl.A No. 1264 of 2023 8 ## **APPENDIX OF CRL.A 1264/2023** **PETITIONER ANNEXURES : ANNEXURE A1 TRUE COPY OF FIR IN CRIME NO. 703/2022 OF UPPUTHARA POLICE STATION ANNEXURE A2 TRUE COPY OF FORM NO.1 UNDER SECTION 52 OF KERALA FOREST ACT 1961 IN OR NO. 1/2002, FILED BEFORE JFCM COURT, KATTAPANA ANNEXURE A3 TRUE COPY OF THE JUDGMENT IN CRL APPEAL NO: 817/2023 DATED 27.06.2023 ANNEXURE A4 TRUE COPY OF THE DISCHARGE SUMMARY DATED 29.05.2023 ANNEXURE A5 MEDICAL CERTIFICATE ISSUED FROM THE DEPARTMENT OF NEURO SURGERY DATED 22/06/2023 ANNEXURE A6 FREE COPY OF THE ORDER DATED 07.8.2023 IN CRL.MC NO: 628/2023 OF THE SPECIAL COURT FOR THE TRIAL OF SC/ST (PREVENTION OF ATROCITIES) ACT 1989, THODUPUZHA ANNEXURE A7 A TRUE COPY OF THE JUDGEMENT IN CRL.APPL NO 1157/2022 DATED 9.12.2022** ## **RESPONDENTS ANNEXURES : NIL**