Pragesh E.C. and Ramakrishnan K.V. v. State of Kerala and Rahul Rajan

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN THURSDAY, THE 27[TH] DAY OF JULY 2023 / 5TH SRAVANA, 1945 ``` ``` CRL.A NO. 1070 OF 2023 ``` ``` AGAINST THE ORDER IN MC 1214/2023 OF DISTRICT COURT & SESSIONS COURT,THALASSERY ``` ## `APPELLANTS/PETITIONERS/ACCUSED:` ``` 1PRAGESH E.C. AGED 42 YEARS S/O KUNHAMBU, AGED 42 YEARS EDAKKADAN CHAPPAYI, PARASSINIKKADAVU, KANNUR -, PIN - 670563 2 RAMAKRISHNAN K.V. AGED 53 YEARS S/O APPAKKUTTY, KOLIYOTT VALAPPIL HOUSE, PARASSINIKKADAVU, KANNUR - ., PIN - 670563 BY ADVS. MAHESH V RAMAKRISHNAN PRAVEEN K.S. ``` ## `RESPONDENTS/RESPONDENTS&DEFACTO COMPLAINANT:` ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2RAHUL RAJAN, S/O RAJAN PANICKER, AGED 24 YEARS, KOVVAL, PARASSINIKKADAVU, KANNUR, PIN - 670563 ``` ## `OTHER PRESENT:` ``` PP M P PRASANTH ``` CRL.A No. 1070 OF 2023 2 ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 27.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` CRL.A No. 1070 OF 2023 3 ## **JUDGMENT Dated this the 27th day of July, 2023** This appeal has been filed under Section 14A of the Scheduled Caste/Scheduled Tribes (Prevention of Atrocities) Act ( for short ‘Act’) 1989, challenging Annexure A2, Viz; order, in Crl.MC.No.1214/2023, dated 01.07.2023, passed by the Special Court under the SC/ST Act ( the Session Court, Thalassery). 2. Heard the learned counsel for the appellants as well as the learned Public Prosecutor. 3. Even though notice was served upon the defacto complainant to appear before this Court and submit his version as mandated under Section 15 (3)(A) of the Act, as could be gathered from the memo showing service of notice, which has been placed by the learned public prosecutor, the defacto complainant did not appear. 4. The case diary materials placed by the learned Public Prosecutor unfurls the prosecution case as under: CRL.A No. 1070 OF 2023 4 It is alleged by the prosecution that at about 5.00 a.m on 06.05.2023, while the defacto complainant was proceeding to perform “Gulikan theyyam” at Chandroth Pottan Devasthanam, situated at Anthoor Amsom, Kovval, accused Nos. 1 and 2 insulted the defacto complainant by calling his cast name and also the 1[st] accused threw a coconut against the defacto complainant and thereby he sustained injury on the left shoulder and forehead. On the above premise, prosecution alleges commission of offences under Sections 324 r/w Section 34 of the Indian Penal Code (for short ‘IPC’ hereinafter) and under Section 3(2)(va) of the Act. The 2[nd] respondent herein is the defacto complainant. 5. According to the learned counsel for the appellants, the entire allegations are false. There are no prima facie materials in this case and the allegations are levelled in retaliation to the decision taken by the temple committee as on 09.06.2021, where the appellants are members, whereby the defacto complainant was advised to change his attitude during performance of “Gulikan theyyam”. Copy of CRL.A No. 1070 OF 2023 5 resolution dated 09.06.2021 has been placed as Annexure A3, to substantiate this contention. 6. The learned Public Prosecutor submitted that grant of anticipatory bail in cases involving offences under the Act is prohibited by Sections 18 and 18- A of the Act and in case where prima facie case is made out, anticipatory bail cannot be granted. Therefore, the appeal is liable to be dismissed since the available materials would constitute offence under Section 3(2)(v) of the Act, since the prosecution alleges commission of offence under Section 324 r/w 34 of the IPC. 7. Law regarding grant of anticipatory bail is well settled and the learned counsel for the appellant placed decision of this Court reported in [2022 (6) KHC 672: ILR 2022 (4) Ker. 620] **XXX V. State of Kerala and Another,** wherein this Court considered the Apex Court decision reported in [2020 (2) KHC 423 : AIR 2020 SC 1036 : (2020) 4 SCC 727 : MANU/SC/0157/2020], **Prathvi Raj Chauhan** **v. Union of India (UOI) & Ors.** , in paragraph 17 as under; “17. In the decision reported in [2020 (2) KHC 423 : AIR 2020 SC 1036 : (2020) 4 SCC 727 : CRL.A No. 1070 OF 2023 6 MANU/SC/0157/2020], Prathvi Raj Chauhan v. Union of India(UOI) & Ors., a 3 Bench of the Apex Court considered the impact of Section 18-A and it was held that as far as the provision of Section 18-A and anticipatory bail is concerned, the judgment of Mishra, J. has stated that in cases where no prima facie materials exist warranting arrest in a complaint, the court has the inherent power to direct a pre-arrest bail. Thus the law is settled by the Apex Court after incorporation of Section 18-A also that there is no absolute bar in entertaining an application for anticipatory bail in cases alleging commission of offences under the SC/ST Act if the prosecution allegations do not constitute any offence under the SC/ST Act prima facie and the court has the power to grant anticipatory bail if the prosecution allegations do not make a prima facie case.” 8. Thus, the legal question is that when there is materials to constitute prima facie case, involving offence under the Act, grant of anticipatory bail is prohibited by law and in other cases where prime case is not made out, anticipatory bail can be granted. 9. As evident from Annexure A3, there was a warning to the defacto complainant in the matter of performing “Gulikan CRL.A No. 1070 OF 2023 7 theyyam” at the temple and the present crime was registered after the said decision. Therefore, the allegations at the instances of the defacto complainant is a matter of detailed investigation. However, it appears that the retaliation in view of Annexure - A3 cannot be ruled out. If so, truth of the allegations which are trivial in nature, is doubtful. However, I leave the investigation regarding allegation to the domain of the investigating officer for free and fair investigation. In view of the above discussion, I am inclined to set aside the order of Special court and grant bail to the appellant on conditions. 10. Accordingly, the impugned order herein stands set aside. In the result, the appeal stands allowed and the appellant is released on bail on the following conditions: - i. The petitioners / appellants shall surrender before the Investigating Officer within ten days from today and on such surrender, the Investigating Officer can question the petitioners / appellants. In the event of their arrest, the Investigating Officer shall produce the petitioners/appellants before the jurisdictional court on the date of arrest itself. CRL.A No. 1070 OF 2023 8 - ii. On such production, the jurisdictional court shall release the petitioners / appellants on bail, on executing bond for Rs.30,000/- (Rupees thirty thousand only) each by themselves and by two solvent sureties, each for the like sum to the satisfaction of the jurisdictional court. - iiii. The petitioners/ appellants shall co-operate with investigation and shall be made available for interrogation and for the purpose of investigation, as and when the Investigating Officer directs so. They shall meet the Investigating Officer on all Mondays in between 10.00 am to 3.00 pm for one month. - iv. The petitioners/ appellants shall not, intimidate the witnesses or interfere with the investigation in any manner. - v. The petitioners/ appellants shall not commit any offence during currency of this bail and any such involvement is a reason to cancel the bail hereby granted. Sd/- ## **A. BADHARUDEEN, JUDGE** mtk CRL.A No. 1070 OF 2023 9 ## `APPENDIX OF CRL.A 1070/2023` ``` PETITIONER ANNEXURES ``` ``` Annexure A1TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.874/2023 OF THE SHO TALIPARAMBA. Annexure A2CERTIFIED COPY OF THE JUDGMENT DATED 01- 07-2023 OF THE CRLMC NO.1214 OF 2023 OF THE COURT OF SESSION, THALASSERY. Annexure A3TRUE COPY OF THE MINUTS DATED 09-06-2022 OF THE COMMITTEE OF KOVVAL CHANDROTH POTTAN DEVASTHANAM. ```