High Court of KeralaSingle Judge2013-10-10Dismissed

K.S. Ali and Others v. The State of Kerala

Case / Petition Number:B.A. No.6567 of 2013

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Thomas P. Joseph
Judgment Date: 2013-10-10
Court Decision / Holding: Anticipatory bail petition dismissed; the petitioners can surrender before the investigating officer or Sessions Court and seek regular bail; the Sessions Court to decide on merits.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

K.S. Ali
K. Jameela
Nishad K.A
Navas K.A

Respondents

The State of Kerala, rep. by the Sub Inspector of Police, Panangad Police Station, Ernakulam District, through the Public Prosecutor, High Court of Kerala, Ernakulam-682 031

Legal Representation & Advocates

Counsels for Petitioners

• Adv. Sri.Sunil V. Mohammed

Counsels for Respondents

• Public Prosecutor SMT. Laliza

Case Synopsis & Summary

This is a Kerala High Court bail application (B.A. No. 6567 of 2013) by four petitioners—K.S. Ali, K. Jameela, Nishad K.A., and Navas K.A.— arising from Crime No. 1317/2013 of Panangad Police Station, Ernakulam. The petition seeks anticipatory bail under Section 438 CrPC in respect of offences including sections 294(b), 447, 323, 326, 341 and 506(i) IPC read with Section 34, and Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The petition contends the allegations are false and motivated by a local dispute with Polechan over encroachment and back-water filling; the petition also relies on veil-lifting to ascertain the true nature of the charges in light of the Act’s provisions. The Public Prosecutor counters that the petition should be barred by Section 18 of the Act, arguing strong materials to show prima facie commission of offences and that mens rea is not negated by the Act. The judge notes that he must assess prima facie evidence without presuming falsity of the complaint, but finds that the first information statement and witnesses point to a prima facie offence under Section 3(1)(x) of the Act. Consequently, under Section 18, anticipatory bail is not entertainable and the petition is dismissed. Petitioners may surrender and apply for regular bail; the Sessions Court will adjudicate on merits.

Provisions of Law Cited

Section 294(b) IPCSection 447 IPCSection 323 IPCSection 326 IPCSection 341 IPCSection 506(i) IPCSection 34 IPCSection 3(1)(x) of the SC/ST (POA) Act, 1989Section 438 CrPCSection 18 of the SC/ST (POA) Act, 1989

Legal Doctrines & Maxims

Veil lifting to ascertain the true nature of the charge
Presumption of mens rea for statutory offences unless the statute dispenses with it
Anticipatory bail doctrine (pre-arrest relief)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners submitted that Section 18 of the SC/ST Act bars the application for anticipatory bail only where the arrest is on a charge under the Act, and that, in the present facts, the allegations appear false and politically motivated by Polechan, who is alleged to have encroached upon petitioners’ property. They relied on veil-lifting principles argued in Chikkappa and Others v. State of Karnataka and Gungarakoppa N.B. and Others v. State of Karnataka to contend that the court may examine the truth of the allegations and that granting anticipatory bail is not foreclosed by the mere incorporation of the Act. They emphasized prior writ and civil proceedings against Polechan and insisted the matter warrants careful scrutiny rather than automatic denial of bail. They contended that there is no admitted mens rea established and that the petition should be considered on merits if there are contradictions in the complaint.

Contentions of Respondents

The Public Prosecutor argued that there is prima facie material indicating offences under the SC/ST Act, including Section 3(1)(x), and that Section 18 bars anticipatory bail in such cases. She submitted that the petition cannot be entertained under the Act; the accused, being a retired police officer, face serious allegations, and the court is not required to conduct a full trial or reassess the truth of the allegations at this stage. The prosecution stressed the need to enforce Section 18 to prevent abuse of the Act and to allow investigation to proceed, urging the court to dismiss the application and direct surrender for regular bail.”

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Chikkappa and Others v. State of Karnataka	2002 KHC 2058	Mentioned Only	Cited to illustrate the concept of veillifting and approaching the truth of charges; not ultimately applied to grant anticipatory bail in this case.
Gungarakoppa N.B. and Others v. State of Karnataka	2002 KHC 2576	Mentioned Only	Cited similarly to discuss veil-lifting considerations; the present decision relies on Section 18 rather than these authorities to deny anticipatory bail.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **THURSDAY, THE 10TH DAY OF OCTOBER 2013/18TH ASWINA, 1935** ## **Bail Appl..No. 6567 of 2013 (B)** **------------------------------------------[CRIME NO. 1317/2013 OF PANANGAD POLICE STATION , ERNAKULAM DISTRICT]** **................** ## **PETITIONERS/ACCUSED:** **------------------------------------** **1. K.S.ALI, AGED 63 YEARS, S/O. SYED MOHAMMED, KUPPAKKATTU HOUSE, PANDIT ROAD JUNCTION, KUMBALAM NORTH, KUMBALAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM-682 506.** **2. K.JAMEELA, AGED 60 YEARS, W/O. K.S.ALI, KUPPAKKATTU HOUSE, PANDIT ROAD JUNCTION, KUMBALAM NORTH, KUMBALAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT-682 506.** **3. NISHAD K.A,** - **KUPPAKKATTU HOUSE, PANDIT ROAD JUNCTION, KUMBALAM NORTH, KUMBALAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT-682 506.** **4. NAVAS K.A,** - **KUPPAKKATTU HOUSE, PANDIT ROAD JUNCTION, KUMBALAM NORTH, KUMBALAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT-682 506.** ## **BY ADV. SRI.SUNIL V.MOHAMMED.** ## **RESPONDENT/STATE :** **---------------------------------** **THE STATE OF KERALA, REP.BY THE SUB INSPECTOR OF POLICE, PANANGAD POLICE STATION, ERNAKULAM DISTRICT, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** ## **BY PUBLIC PROSECUTOR SMT. LALIZA.** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 10-10-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Prv.** ## **THOMAS P.JOSEPH, J.** **==================================== B.A. No.6567 of 2013 ==================================== Dated this the 10[th] day of October, 2013** ## **O R D E R** This petition is filed by accused 1 to 3, in Crime No.1317 of 2013 of the Panangad Police Station for the offences punishable under Sections 294(b), 447, 323, 326, 341 and 506 (i) read with Sec.34 of the Indian Penal Code and Sec.3(1)(x) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, “the Act”), on the allegation that on 23.09.2013 at about 10.00 a.m., the petitioners wrongfully restrained, voluntarily caused hurt with stones and intentionally insulted the de facto complainant and others in public view by calling them caste name. The petitioners, claiming that the allegations are false have sought relief under Sec.438 of the Code of Criminal Procedure (for short, “the Code”). 2. Learned counsel for the petitioners submits that the bar under Sec.18 of the Act has no application in view of the facts of the case which would disclose that allegations against the petitioners are false and fabricated at the instance of one **B.A. No. 6567 of 2013** -: 2 :- Polechan against whom the 1[st] petitioner has been taking various steps to prevent him from encroaching into and filling up the back waters in front of the house of the petitioners. Learned counsel submits that Polechan has been encroaching the back waters and filling up the same. The 1[st] petitioner moved various authorities against the said highhanded acts of Polechan and since the authorities did not move, the 1[st] petitioner filed W.P(C) No.44804 of 2006 in this Court. A direction was issued to the District Collector to take necessary action in the matter. While so, Polechan filed O.S. No.12 of 2007 in the local civil court against the petitioners. That suit was dismissed on 26.06.2012. Polechan preferred A.S. No.78 of 2012 which was dismissed on 30.08.2013. Thereon, Polechan started harassing the petitioners. 3. On 21.09.2013 the 1[st] petitioner was summoned to the Panangad Police Station by the Sub Inspector. He was harassed in the presence of Polechan. The 1[st] petitioner was threatened not to move against Polechan. Again the 1[st] petitioner was summoned to that Police Station and he was threatened with dire consequences of himself and family members being implicated in some case and detained. On 23.09.2013, the 1[st] petitioner found granite stones being taken to the property of Polechan which was **B.A. No. 6567 of 2013** -: 3 :- resisted. The Revenue Divisional Officer who was informed, came to the spot by about 11.00 a.m. That was followed by the Village Officer concerned issuing memo to Polechan asking him to stop work. It is contended that in the above circumstances the version of the de facto complainant and others that they were insulted by the petitioners by calling caste name in public view and that they were attacked, is unbelievable. Learned counsel has invited my attention to the decisions in **Chikkappa and Others v. State of Karnataka** (2002 KHC 2058) and **Gungarakoppa N.B. and Others v. State of Karnataka** (2002 KHC 2576). It is contended that it is within the power of this Court to lift the veil to ascertain the true nature of the charge and that merely for the reason that offence under the provisions of the Act is also incorporated, the court is not powerless to grant anticipatory bail. Learned counsel has drawn my attention to the facts of the reported cases. 4. Learned Public Prosecutor submitted that the 1[st] petitioner is a retired police personnel and that there are sufficient materials on record to show that petitioners have committed the offences including the one under Sec.3(1)(x) of the Act as well. It is argued that in view of the bar under Sec.18 **B.A. No. 6567 of 2013** -: 4 :- of the Act, this petition cannot be entertained. 5. Section 18 of the Act says that provisions of Sec.438 of the Code shall not apply in relation to any case involving the arrest of any person on an accusation of having committed the offence under the Act. Various decisions on the point say that so far as there is no provision in the Act saying that mens rea is not required though the offence under the Act are statutory offences, the presumption is that mens rea is also required to constitute the offences under the Act. Now I am to consider whether in view of Sec.18 of the Act this application can be maintained? 6. Even the decisions cited by the learned counsel would show that this Court is not expected to conduct an enquiry into the truth of the allegations contained in the complaint or charge as the case may be, and that this Court is only required to consider whether on the basis of the allegations in the complaint or charge an offence under the Act is made out or not. True, in the decisions cited it is also said that the experience revealed that in large number of cases provisions of the Act have been misused. But I cannot start with an initial presumption that the **B.A. No. 6567 of 2013** -: 5 :- allegations made by the de facto complainant are false. I am only to consider whether the allegations made in the complaint do reveal, of course prima facie, an offence punishable under the Act. 7. Learned Public Prosecutor has handed over the file concerned to me. It is seen that the first information statement was given by the de facto complainant on 24.09.2013 though the alleged incident was on 23.09.2013 at about 10.00 a.m. Question as to what was the reason for the delay if any and whether such delay if any are not matters which I am required to decide at this stage. 8. In the first information statement given by the de facto complainant on 24.09.2013 it is stated that himself and others had gone for the work of Polechan (construction of a compound wall) on 23.09.2013 and they were at work. While so, at about 10.00 a.m. the petitioners came to be spot and insulted the de facto complainant and others by calling their caste name in the presence of Polechan. It is stated that the 2[nd] petitioner pelted stones at the de facto complainant and others and that all throughout, the petitioners were insulting the de facto **B.A. No. 6567 of 2013** -: 6 :- complainant and others by calling their caste name. It is stated that the de facto complainant and others were taken to hospital at Nettoor. 9. I have also gone through the file and find that the persons who were allegedly with de facto complainant at the relevant time have given similar statements indicating that the petitioners insulted the de facto complainant and others by calling their caste name. 10. As it is the first information statement was given by the de facto complainant and the statement of witnesses prima facie reveal commission of offence under Sec.3(1)(x) of the Act. As aforesaid, it is not within the realm of this Court in this proceeding to go into the truth of the allegations. I am therefore of the view that in view of Sec.18 of the Act, this application for anticipatory bail cannot be entertained. Consequently, this petition fails and it is dismissed. Petitioners can either surrender before the investigating officer or the Sessions Court concerned and seek regular bail. In case any such application for bail is moved, the learned Sessions ## **B.A. No. 6567 of 2013** -: 7 :- Judge shall consider that application on its merit and pass orders as per the law as early as possible, untrammelled by the dismissal of this petition or any observation made herein. ## **THOMAS P. JOSEPH, JUDGE.** vsv