Muhammed Basheer v. State of Kerala and The Sub Inspector of Police, Ponnani Police Station

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** ## **WEDNESDAY, THE 10TH DAY OF JULY 2013/19TH ASHADHA, 1935** ## **Bail Appl..No. 4825 of 2013** **--------------------------------------** **CRIME NO. 491/2013 OF PONNANI POLICE STATION , MALAPPURAM ---------------** ## **PETITIONER/ACCUSED:** **-----------------------------------** **MUHAMMED BASHEER, S/O.HAMSU, AGED 39 YEARS, PALAKKAL HOUSE, KALADY, KADANCHERY, MALAPPURAM DISTRICT.** **BY ADV. SRI.BABU S. NAIR** ## **RESPONDENTS/STATE AND COMPLAINANT:** **---------------------------------------------------------------** **1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031.** **2. THE SUB INSPECTOR OF POLICE, PONNANI POLICE STATION, MALAPPURAM DISTRICT, PIN-679577.** **BY PUBLIC PROSECUTOR SRI.ROY THOMAS** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 10-07-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **PJ** ## **P.BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - B.A. No. 4825 of 2013 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10[th] day of July, 2013 ## **O R D E R** The petitioner is the sole accused in Crime No.491 of 2013 of the Ponnani Police Station who is alleged to have committed offences punishable under Sections 354, 506 and 509 of IPC and also under Section 3(i)(xi) of the SC/ST (Prevention of Atrocities) Act. 2. The allegation against the petitioner is that while the defacto complainant used to work as a maid in the house of the petitioner, as the petitioner's wife was ill, he used to make indecent advances towards her. After she stopped going for work in that house, he continued his stand and even threatened with dire consequences if she did not yield to his desire. He created life miserable for the defacto complainant and that ultimately led her to file the complaint. **B.A. No.4825/2013** **-2-** 3. The petitioner pointed out that the allegations are totally false and made with ulterior motive. It is pointed out that there is a well in the property of the petitioner which is to be shared by members of the three house. One of which that of the defacto complainant. The defacto complainant's husband is no more and the husband's brother one Praveen is staying with her. The petitioner would point out that the said Praveen attempted to install a Motor Pump in the well which has taken objection by the petitioner. It is pointed out that in fact the petitioner's wife was attacked by the said Praveen. Petitioner's wife laid Annexure B complaint on the basis of which crime has been registered to the Police for the offence under Section 447, 341, 323, 354, 294(b) and 506(i) of IPC. In the said case, it is pointed out that Praveen has been taken into custody and detained. In order to wreak vengeance to the said complaint, a month or so after the Annexure B complaint, the present complaint has been laid to see that the petitioner is put behind the bar. The **B.A. No.4825/2013** **-3-** petitioner seeks pre-arrest bail. 4. The learned Public Prosecutor opposed the petition and pointed out that the allegation in the complaint would clearly show that the offence under Section 354 is attracted and so also since the offence under the SC/ST Act is also included. By virtue of Section 18 of the said act, this Court is precluded from exercising its extraordinary jurisdiction and based on that ground, the petition is liable to be dismissed. 5. After having heard the learned counsel for the petitioner and the learned Public Prosecutor and having perused the records, the issue does not seem to be as simple as put forward by the learned Public Prosecutor. The fact remains that the petitioner's wife had filed a complaint as early as on 19.05.2013 wherein Praveen was shown as an accused and a crime was registered against him. It is long thereafter the complaint was laid by the defacto complainant accusing the petitioner of certain acts which constitute the offences. The reading of the FIS produced **-4-** ## **B.A. No.4825/2013** along with Annexure A, FIR would clearly show that there are no specific allegations and the allegations are totally vague and general in nature. Even though it is claimed that the petitioner had caught hold of the victim, no details of that incident are seen mentioned like the date, place etc.. It is also significant to notice that except for mentioning that the defacto complainant belongs to the Scheduled Caste, nothing is stated in the complaint till that the act committed by the accused as a result of the victim being the member of the Scheduled Caste. 6. The learned Public Prosecutor pointed out that there is a distinction between Section 3(1)(xi) and 3(1)(x) and under Section 3(1)(xi), it is not necessary that the racial prejudice should be expressed. It is sufficient that the victim is the member of the Scheduled Caste or Scheduled Tribe. It is difficult to agree with the above contention of the learned Public Prosecutor. In the decision reported in **Vilas Pandurang Pawar** v. **State of Maharashtra** [2012 (4) KLT **B.A. No.4825/2013** **-5-** SN 28] even though the Apex Court was considered the case under Section 3(1)(xi), the Apex Court has occasion to observe it as follows: “Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act creates a bar for invoking S.438 of the Code. However, a duty is cast on the court to verify the averments in the complaint and to find out whether an offence under S.3(1) of the SC/St Act has been _prima faci_ e made out. In other words, if there is a specific averment in the complaint, namely, insult or intimidation with intent to humiliate by calling with caste name, the accused persons are not entitled to anticipatory bail. The scope of S.18 of the SC/ST Act read with S.438 of the Code is such that it creates a specific bar in the grant of anticipatory bail. When an offence is registered against a person sunder the provisions of the SC/ST Act, no Court shall entertain application for anticipatory bail, unless it _prima facie_ finds that such an offence is not made out. Moreover, while considering the application for bail, scope for appreciation of evidence and other material on record is limited. Court is not excepted to indulge in critical analysis of the evidence on record. When a provision has been enacted in the Special Act to protect the persons who belong to the Scheduled Castes and the Schedules Tribes and a bar has been imposed in granting bail under S.438 of the Code, the provision in the Special Act cannot be easily brushed aside by elaborate discussion on the evidence.” ## **B.A. No.4825/2013** **-6-** 7. This Court has also taken the view that any offence under Section 3(1) will be attracted only if the act is committed with racial prejudice or with requisite knowledge. The mere fact that the victim belongs to the Scheduled Caste or Scheduled Tribe by itself may not be sufficient. At any rate, this Court has occasion to hold that the assailants should have at least knowledge that the victim should belong to Scheduled Caste or Scheduled Tribe. 8. In the light of the absence of specific allegation in the complaint, the act was committed with the knowledge of the accused that the victim did belong to Scheduled Caste or Scheduled Tribe or with racial prejudice, it may not be possible to say that the bar under Section 18 applies. 9. Coming to the facts of the fact there seems to be considerable force in the submissions made by the learned counsel for the petitioner that the complaint which resulted in the registration of the crime against the petitioner is a retaliatory measure for Annexure B complaint wherein **-7-** ## **B.A. No.4825/2013** Praveen was detained in custody. Moreover, as pointed out by the learned counsel for the petitioner, the allegations are very vague and general in nature. The grievance of the petitioner cannot be brushed aside lightly. It is possible that the present complaint which resulted in the registration of the crime may be counter blast of the Annexure B complaint. Considering the totality of the circumstances, the petition is allowed as follows: The petition is allowed as follows: - 1) The petitioner shall surrender before the Investigating Officer on or before **17.07.2013** , who, after interrogation, shall produce him before the JFCM court concerned, which court, on an application for bail being moved by the petitioner shall release him on bail on his executing a bond for a sum of `10,000/- (Rupees Ten Thousand only) with two solvent sureties for the like sum each to the satisfaction of the said court. ## **B.A. No.4825/2013** **-8-** - 2) The court shall ensure the identity of the sureties and the veracity of the tax receipts, before granting bail. - 3) The petitioner shall appear before the Investigating Officer on every Wednesday between 9.00 am to 10.00 am until further orders. - 4) The petitioner shall not tamper or attempt to tamper with the evidence and influence or try to influence the witnesses. - 5) If any of the conditions is violated, the bail granted shall stand cancelled and the court concerned, of being satisfied of the said fact, may take such proceedings as are available in law. ## **P.BHAVADASAN JUDGE** ds