Joby Augustine v. State of Kerala and Amrutha Muraly

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 5[TH] DAY OF AUGUST 2024 / 14TH SRAVANA, 1946 CRL.A NO. 1188 OF 2024 ``` ``` CRIME NO.516/2024 OF Hill Palace Police Station, ``` ``` Ernakulam ``` ``` AGAINST THE ORDER/JUDGMENT DATED IN CRMC NO.1813 OF 2024 OF DISTRICT COURT & SESSIONS COURT, ERNAKULAM APPELLANT/S: ``` ``` JOBY AUGUSTINE AGED 31 YEARS S/O K.P. AUGUSTINE, KAITHAKKATHARA HOUSE, KOPPARAMBU, EROOR P.O, THRIPUNITHURA, ERNAKULAM DISTRICT, PIN - 682306 ``` ``` BY ADVS. K.MOHAMMED RAFEEQ BIBIN MATHEW P.M.MATHEW AMARNATH R LAL SANALDEV E.P. VISHNUMAYA ANANDAN SONYMON ANTONY AJMAL V. KARIM ``` ## **`RESPONDENT/S:`** - **`1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM DISTRICT, PIN - 682031`** - **`2 STATION HOUSE OFFICER HILL PALACE POLICE STATION, ERNAKULAM DISTRICT, PIN - 682030`** Crl.A.No.1188 of 2024 2 ``` 3AMRUTHA MURALY AGED 47 YEARS W/O MURALI, KARTHEPARAMBIL HOUSE, KOPPARAMBU, EROOR P.O, ERNAKULAM DISTRICT, PIN - 682306 ``` ``` BY PUBLIC PROSECUTOR SRI G SUDHEER BY ADVS. PEETHAMBARAN C P KARTHIKA PEETHAMBARAN(K/003606/2022) ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 05.08.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.A.No.1188 of 2024 3 **K.BABU, J ------------------------------------------------Crl.A No.1188 of 2024 ------------------------------------------------Dated this the 5[th] day of August, 2024** ## **JUDGMENT** This is an appeal filed under Section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short ‘the Act’). The challenge in the appeal is to the order dated 28.06.2024 in Crl.M.C.No.1813 of 2024 passed by the Special Court for the trial of Offences under SC/ST(POA) Act, 1989, Ernakulam. 2. The appellant is the sole accused in Crime No.516/2024 of Hill Palace Police Station. The appellant is alleged to have committed offences punishable under Sections 354, 354A(1)(i), 447, 341, 323, 294 of IPC and Sections 3(1)(r), 3(1)(w)(i) and 3(2)(va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. Crl.A.No.1188 of 2024 4 ## - Prosecution case: 3. The appellant is not a member of the Scheduled Caste or Scheduled Tribe. The victim/respondent No.3 is a member of the Scheduled Caste community. They are neighbours. On 08.06.2024 around 5.00p.m. at Kopparambu junction at Eroor in Nadama Village of Ernakulam District, the appellant assaulted her intending to outrage her modesty. He intentionally insulted her with intent to humiliate and touched her without her consent with sexual overtures knowing that she belonged to a Scheduled Caste. When the victim escaped from the scene of occurrence, the appellant followed and trespassed into her residence, showered abusive words towards her and voluntarily caused hurt to her. 4. I have heard the learned counsel for the appellant, the learned Public Prosecutor and the learned counsel appearing for respondent No.3/victim. Crl.A.No.1188 of 2024 5 5. The learned counsel for the appellant raised the following contentions in support of the bail plea:- (a) The prosecution failed to establish the ingredients of the offences under the Act and therefore the bar under Section 18 of the Act is not applicable. (b)The delay in the registration of the FIR makes the prosecution case doubtful. (c)The appellant also belongs to a Scheduled Caste. 6. The learned counsel for the appellant further submitted that though the victim alleged the offence under Section 323 IPC, no Wound Certificate has been made available to substantiate this allegation. 7. The learned Public Prosecutor submitted that the prosecution has placed relevant materials to prima facie establish the offences under the Act and therefore, the bail plea is barred under Section 18 of the Act. The learned counsel for the party respondent supported the Crl.A.No.1188 of 2024 6 contentions raised by the learned Public Prosecutor and opposed the relief sought for. 8. I have gone through the case diary and the other relevant materials. In the FIS, the victim made specific allegations to attract the offences alleged. Her statement recorded under Section 164 Cr.P.C. also supports the prosecution case. 9. The incident allegedly occurred on 08.06.2024 at 5.00 p.m.. She lodged the FIS on 09.06.2024 at 13.45 hrs. The delay caused in the registration of the FIR is not considerable to discard the prosecution case. The Caste Certificate produced by the prosecution shows that the appellant is a member of the Other Backward Class in the Kerala State. Therefore, the prosecution prima facie established that the appellant is not a member of a Scheduled Caste or Scheduled Tribe. 10. It is trite that the express exclusion under Section 18 of the Act is limited to genuine cases and inapplicable where no prima facie case is made out. Crl.A.No.1188 of 2024 7 11. In _**Prathvi Raj Chauhan v. Union of India**_ [(2020) 4 SCC 727], the Supreme Court held that the bar created under Sections 18 and 18-A shall not apply if the complaint does not make out a _prima facie_ case for the applicability of the provisions of the Act. 12. In _**Subhash Kashinath Mahajan (Dr.) v. State of Maharashtra and Another**_ 2018 (2) KHC 207, while dealing with the pre-amended Act, the Supreme Court held that there is no absolute bar against grant of anticipatory bail in cases under the Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide. 13. The essential question to be considered is whether the prosecution materials prima facie reveal the ingredients of the offences under Sections 3(1)(r), 3(1)(w) (i) and 3(2)(va)of the SC/ST Act. 14. The learned counsel for the appellant has a contention that the registration of the crime alleging offences under the Act is a misuse of the Statute. On Crl.A.No.1188 of 2024 8 going through the statement of the victim and other witnesses, I am not in a position to accept this contention. 15. It is apposite to refer to the observation of the Apex Court in _**Union of India v. State of Maharashtra and Ors.**_ (2019 (5) KHC 57), which reads thus:- “49. There is no presumption that the members of the Scheduled Castes and Scheduled Tribes may misuse the provisions of law as a class and it is not resorted to by the members of the upper Castes or the members of the elite class. For lodging a false report, it cannot be said that the caste of a person is the cause. It is due to the human failing and not due to the caste factor. Caste is not attributable to such an act. On the other hand, members of the Scheduled Castes and Scheduled Tribes due to backwardness hardly muster the courage to lodge even a first information report, much less, a false one. In case it is found to be false / unsubstantiated, it may be due to the faulty investigation or for other various reasons including human failings irrespective of caste factor. There may be certain cases which may be false that can be a ground for interference by the Court, but the law cannot be changed due to such misuse. In such a situation, it can be taken care in proceeding under S.482 of the Cr.PC.“ 16. The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereafter “the Act”) was enacted to address the gulf between the rights which the Constitution guaranteed to all people, particularly Crl.A.No.1188 of 2024 9 those who continued to remain victims of ostracism and discrimination. Rules under the Act were framed in 1995 to prevent the commission of atrocities against members of Scheduled Castes and Tribes, to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matters connected therewith or incidental thereto. The Statement of Objects and Reasons appended to the Bill, when moved in Parliament, observed that despite various measures to improve the socio-economic conditions of Scheduled Castes and Scheduled Tribes, they remained vulnerable. They are denied a number of civil rights and are subjected to various offences, indignities, humiliation and harassment. They have been, in several brutal instances, deprived of their life and property. Serious atrocities were committed against them for various historical, social and economic reasons. The Act, for the first time, puts down the contours of “atrocity” so as to cover the multiple ways through which members of Crl.A.No.1188 of 2024 10 Scheduled Castes and Scheduled Tribes have been for centuries humiliated, brutally oppressed, degraded, denied their economic and social rights. 17. It is important to reiterate and emphasise that unless provisions of the Act are enforced in their true letter and spirit, with utmost earnestness and dispatch, the dream and ideal of a casteless society will remain only a dream, a mirage. The marginalisation of Scheduled Caste and Scheduled Tribe communities is an enduring exclusion and is based almost solely on caste identities. It is to address problems of a segmented society, that express provisions of the Constitution which give effect to the idea of fraternity, or _bandhutva_ referred to in the Preamble, and statutes like the Act, have been framed. These underline the social — rather collective resolve — of ensuring that all humans are treated as humans, that their innate genius is allowed outlets through equal opportunities and each of them is fearless in the pursuit of her or his dreams. The question which each of us has Crl.A.No.1188 of 2024 11 to address, in everyday life, is can the prevailing situation of exclusion based on caste identity be allowed to persist in a democracy which is committed to equality and the rule of law? If so, till when? And, most importantly, what each one of us can do to foster this feeling of fraternity amongst all sections of the community without reducing the concept (of fraternity) to a ritualistic formality, a tacit acknowledgment, of the “otherness” of each one's identity. [Vide:-[ _**Prathvi Raj Chauhan v. Union of India**_ ]. 18. Therefore, I come to the following conclusions:The prosecution prima facie established that the appellant committed the offences under the Act as alleged and therefore, the bar under Section 18 is applicable to the facts of the case and hence the application seeking anticipatory bail as far as the offences under the Act are concerned is not maintainable. There are specific ingredients to attract the offences under Crl.A.No.1188 of 2024 12 Sections 354 and 354A(1)(i) IPC. Resultantly, the prayer for anticipatory bail is rejected. Therefore, The order dated 28.06.2024 in Crl.M.C.No.1813 of 2024 passed by the Special Court for the trial of Offences under SC/ST(POA) Act, 1989, Ernakulam, stands confirmed. The appellant is not entitled to anticipatory bail. The Crl.Appeal stands dismissed. Sd/- **K.BABU JUDGE** kkj