Jishnu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 08TH DAY OF JANUARY 2019 / 18TH POUSHA, 1940** ## **CRL.A.No. 1458 of 2018** **AGAINST THE ORDER/JUDGMENT IN CRL.M.C NO.1638/2018 OF D.C. & SESSIONS COURT, THRISSUR DATED 24-11-2018** **** CRIME NO.205/2017 OF MATHILAKOM POLICE STATION, THRISSUR** ## **APPELLANT/ACCUSED:** **JISHNU, AGED 23 YEARS, S/O. AYYAPPAN, THAYATTUPARAMBIL HOUSE, VEKKODDESOM, VEMBALLUR, MATHILAKAM, THRISSUR DISTRICT.** **BY ADV. SRI.D.VIMAL DEV** ## **RESPONDENT/S:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI-31.** **BY SRI. AMJAD ALI SR. PP.** **** CRIME NO.205/2017 OCCURRING IN THE CAUSE TITLE OF THE JUDGMENT DATED 08/01/19 IN CRL.A. 1458/2018 IS CORRECTED AS CRIME NO.231/2018 AS PER ORDER DATED 18/02/19 IN CRL.M.A.1/19 IN CRL.A 1458/18.** **SD/(ASSISTANT REGISTRAR)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 08.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **CRL.A.No. 1458 of 2018** **2** ## **JUDGMENT** The appellant is the accused in Crime No.231 of 2018 of the Mathilakam Police Station, registered under Sections 323, 354(c), 509, 506(1) of the IPC and Section 3(1)(w)(i)(ii) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015. He approached the learned Sessions Judge and sought for protection under Section 438 of the Cr.P.C. The learned Sessions Judge by the impugned order rejected the petition holding that Section 438 can have no application in a crime registered under the provisions of Act 33 of 1989. The above order is under challenge in this appeal filed under Section 14A of the Act. 2. The above Crime was registered on 15.3.2018, based on information furnished by a lady aged about 40 years. According to her, the appellant is her neighbour and is previously known to her. Sometime in the month of July, 2016, the appellant managed to record a video using his mobile phone while the de facto complainant was taking her bath in the privacy of her bathroom. Later, he confronted her with the above video and started misbehaving. She had to warn **CRL.A.No. 1458 of 2018** **3** him. After a few days, the appellant approached her and started threatening her with the videotape. He then started demanding money. She initially borrowed a sum of Rs.25,000/- and handed it over to him. He persisted with his demands and requested for a sum of Rs.50,000/-. She managed to procure the money and handed it over to him along with some gold. In the month of March, 2017, he again approached her and demanded a sum of Rs.20,000/-. The de facto complainant approached the mother of the appellant and took a loan and handed over the money to the appellant. He again demanded a sum of Rs.50,000/- and the said amount was also procured and the same was handed over. In the fag end of her complaint, she would state that she is a member of the Scheduled Caste community and that she had to encounter some bad experience from the appellant on that account as well. 3. The learned counsel appearing for the appellant would vehemently contend that none of the provisions of Act 33 of 1989 would be attracted. It is further submitted that the long delay of more than 2 years in setting the law in motion without any cogent explanation would destroy the very credibility of the allegations levelled by the de facto complainant. He would further refer to Annexure-A3 FIR in Crime No.205 of 2017 registered at the instance **CRL.A.No. 1458 of 2018** **4** of the de facto complainant on 1.2.2017 against one Karthikeyan. Similar allegation of infringement of the provisions of Act 33 of 1989 has been levelled against the said accused as well. He further points out that if, in fact, an incident of the nature alleged had taken place in the year 2016, the de facto complainant would necessarily have lodged the complaint much earlier, particularly when, she has got another crime registered against the aforesaid Karthikeyan on 1.2.2017. Finally, the learned counsel submitted that the perusal of the F.I.Statement would not show that the act was committed by the appellant with a view to exploit the de facto complainant knowing that she is a member of a Scheduled Caste. He would also refer to the judgment of the Apex Court in **Subhash Kasinath Mahajan (Dr.) v. State of Maharashtra and Another** [2018 (2) KHC 207] and it was contended that extensive guidelines have been issued by the Apex Court taking note of the abuse of the provisions of the Act and it was held that 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. Reliance was also placed on **Vilas Pandurang Pawar and Another v. State of Maharashtra** [AIR 2012 SC 3316] to bring home his point that a duty is cast on the court to verify the averments **CRL.A.No. 1458 of 2018** **5** in the complaint and find out whether the offence under the Act has been prima facie made out. 4. The learned Public Prosecutor, on instructions, submitted that the Act 33 of 1989 was amended and by virtue of the amendment, the invocation of powers under Section 438 of the Cr.P.C. has been barred notwithstanding the pronouncement of the Apex Court in **Subhash Kasinath Mahajan (Dr.)** (supra). 5. I have considered the submissions advanced. 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 Section 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 **CRL.A.No. 1458 of 2018** **6** who are prima facie perpetrators of the crime. 7. In the instant case, the complaint would reveal that the incident had taken place in the month of July, 2016. All that is mentioned in the complaint is that the appellant is her neighbour and they used to have constant interaction. There is only a vague statement in the complaint that the de facto complainant is a member of the Scheduled Caste. She has no case that she was abused or harassed sexually or otherwise by exploiting her status as a member of the Scheduled Caste community. Furthermore, in respect of an incident which took place in the month of July, 2016, the law was set in motion after about 2 years. The petitioner has also been able to show that this is not an isolated case insofar as the de facto complainant is concerned. A year prior to the lodging of the FIR in the instant case, and, if the version of the de facto complainant is believed, while she was being sexually harassed by the appellant, she had lodged a complaint against one Karthikeyan on 1.2.2017 alleging violation of the provisions of Act 33 of 1989. If, in fact, the allegation against the appellant was true, one would have expected her to lodge a complaint against him as well. However, she waited for more than a year thereafter to set the law in motion. The contention of the learned counsel that there were monetary transactions between the parties **CRL.A.No. 1458 of 2018** **7** and the provisions of the Act was invoked by the de facto complainant to intimidate and threaten him and to ensure that he is locked up in jail cannot be brushed aside. 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, Section 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. 9. In the case on hand, I am of the view that the court below was not justified in denying an order of pre-arrest bail to the appellant. The order passed by the court below is set aside. The court below is directed to enlarge the appellant on anticipatory bail **CRL.A.No. 1458 of 2018** **8** by imposing appropriate conditions, which the court below may deem fit and proper. This appeal is allowed. ## **SD/-** **RAJA VIJAYARAGHAVAN V., JUDGE** avs //TRUE COPY// P.A. TO JUDGE **CRL.A.No. 1458 of 2018** **9** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1** **THE COPY OF THE FIR IN CRIME NO. 231/2018 OF MATHILAKAM POLICE STATION, THRISSUR DISTRICT** **ANNEXURE A2 THE COPY OF THE FIS STATEMENT GIVEN BY THE DE-FACTO COMPLAINT IN CRIME NO. 231/2018 OF MATHILAKAM POLICE STATION, THRISSUR DISTRICT** **ANNEXURE A3 THE COPY OF THE FIR IN CRIME NO. 205/2017 OF MATHILAKAM POLICE STATION, THRISSUR DISTRICT** **ANNEXURE A4 THE COPY OF THE FIS STATEMENT GIVEN BY THE DE-FACTO COMPLAINT IN CRIME NO. 205/2017 OF MATHILAKAM** **ANNEXURE A5** **THE CARBON COPY OF THE ORDER IN CRL.M.C. NO. 1638/2018 OF THE HONBLE SESSIONS COURT, THRISSUR DATED 24.11.2018** **RESPONDENT'S/S EXHIBITS:** **NIL**