Rajeevan.T S/o KarunakakrAn v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE K. BABU`** ``` TUESDAY, THE 2[ND] DAY OF APRIL 2024 / 13TH CHAITHRA, 1946 ``` ## **`CRL.A NO. 460 OF 2024`** ``` CRIME NO.71/2024 OF Thalassery Police Station, Kannur ``` ``` AGAINST THE ORDER/JUDGMENT DATED 01.03.2024 IN CRMC NO.360 OF 2024 OF DISTRICT COURT & SESSIONS COURT,THALASSERY APPELLANT: ``` ``` RAJEEVAN.T S/O.KARUNAKAKRAN AGED 49 YEARS TEACHER BY PROFESSION, RESIDING AT THAYYULLATHILL HOUSE, POST KARIYAD SOUTH, THALASSERRY TALUK, KANNUR DIST., PIN - 673316 ``` ``` BY ADVS. T.ASAFALI LALIZA.T.Y. ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA SHO THALASSERRY POLICE STATION] REP.BY PUBLIC PROSECUTOR HIGH COURT OF KERALA,ERNAKULAM, PIN - 682031`** - **`2 XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX`** ``` BY ADV R SURENDRAN ``` SRI.G.SUDHEER P.P ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 02.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 460 OF 2024 ``` ``` 2 ``` ## . **K.BABU, J** -------------------------------------- ## Crl.A.No.460 of 2024 --------------------------------------- ## **Dated this the 2[nd] day of April, 2024** ## **J U D G M E N T** This is an appeal filed under Section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The challenge in this appeal is to the order dated 01.03.2024 in Crl.M.C.No.360/2024 passed by the Sessions Court, Thalassery. 2. The appellant is the sole accused in Crime No.71/2024 of Thalassery Police Station. He is alleged to have committed offences punishable under Sections 354, 354(A)(1)(i) and 324 of the IPC, Sections 9(f), 9(l), r/w Section 10 of the POCSO Act and Section3(2)(va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (Amendment Act 2015) (for short ‘the Act’). ## The prosecution case: 3. On 11.01.2024 and 12.01.2024, the appellant, the class teacher of the victim, a minor girl, committed sexual ``` CRL.A NO. 460 OF 2024 ``` ``` 3 ``` assault by touching her breasts. 4. Notice was served on the mother of the victim. The mother appeared through a counsel and filed an affidavit. 5. Heard the learned counsel for the appellant, the learned counsel for the victim and the learned Public Prosecutor. ## The case of the appellant is as follows: 6. The appellant is the class teacher of class VII-A in Kavumbhagam Govt.Higher Secondary School, where the victim is studying. He is dealing with Malayalam and English subjects. The victim and some other students performed very poor in English. The appellant scolded and advised them. The victim remained continuously absent for a week due to some ailments on her eyes. On the day when the appellant scolded her, she was seen very much depressed. On that day in the evening, the appellant noticed that the victim was crying. He was told that some male students of Class-X are behind her worries. The appellant took the victim to a Counsellor. He has not committed any offences as alleged. 7. The mother of the victim filed an affidavit wherein she ``` CRL.A NO. 460 OF 2024 ``` ``` 4 ``` ## stated the following: The appellant was very strict in the school. In the midterm examination, as the performance of the victim was not good, the appellant scolded her. Due to the mental pain suffered by her, she filed a complaint before the police. Later, the victim revealed the true facts. The appellant is innocent. He has not committed any offences as alleged. The victim and her family are not interested in prosecuting the case against the appellant. 8. The learned counsel for the appellant submitted that the appellant is absolutely innocent of the allegations levelled against him. The affidavit filed by the mother of the victim supports the case of the appellant. The learned counsel appearing for the mother of the victim endorsed the said submission. 9. The learned Public Prosecutor opposed the bail plea on the ground that the affidavit filed by the mother of the victim cannot be taken as a piece of material to get over the rider as provided in Sections 18 and 18-A of the Act. 10. In **Prathvi Raj Chauhan v. Union of India [(2020)** ``` CRL.A NO. 460 OF 2024 ``` ``` 5 ``` **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. 11. 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. This Court in **xxxx v. State of Kerala 2022 KHC 1001** , while considering the application of the bar under Sections 18 and 18-A of the Act held thus: “Before analysing the question as to whether, a prima facie case is made out in this matter, it is necessary to address the tendency of false implication of innocent persons, who do not belong to Scheduled Caste or Scheduled Tribe community, by misusing the provisions of the SC/ST (POA) Act. There is no quarrel that stringent provisions are incorporated in the SC/ST (POA) Act to arrest the menace of atrocities against members of the Scheduled Caste and Scheduled Tribes community by exploiting their backwardness. Since the Parliament found that the provisions of earlier SC/ST (POA) Act were not sufficient to meet the ends of justice, the Act was amended. After the amendment of the SC/ST (POA) Act, more stringent provisions have been incorporated in SC/ST (POA) Act with mandatory right of hearing to the defacto complainant at every stages of the court proceedings, as provided under Section 15A(3) of the SCT/ST (POA) Act. Thus, atrocities against Scheduled Caste or ``` CRL.A NO. 460 OF 2024 ``` ``` 6 ``` Scheduled Tribe community, in fact, is intended to be curtailed by the stringent provisions of SC/ST (POA) Act. Therefore, when genuine complaint/complaints at the instance of the Schedule Caste or Scheduled Tribe members, which would attract offence/offences incorporated under the SC/ST (POA) Act, if made, the same shall be viewed seriously and appropriate legal action shall go on, to attend the grievances of the complaint/complaints. At the same time, the courts should have a duty to rule out the possibilities of false implication of innocent persons as accused, with a view to achieve ulterior motives of the complaints, with threat of arrest and detention of the accused in custody, because of the stringent provisions in the SC/ST (POA) Act in the matter of grant of anticipatory bail. It is shocking, rather a mind blowing fact that many innocent persons are victims of false implication under the SC/ST (POA) Act. Therefore, it is the need of the hour for the courts to segregate the grain from the chaff by analysing the genesis of the case, the antecedents prior to registration of the crime, with reference to existence of animosity between the complainant and the accused, with particular attention, vis-a-vis previous disputes/cases/ complaints, etc. while considering the question of prima facie case, when considering plea for pre-arrest bail. In cases, where there are materials to show that the accused and the complainant are in inimical terms, and there are previous litigation between them or their men or representatives and in retaliation or as a sequel to the same, the allegations in the complaint constituting offence/offences under the SC/ST (POA) Act are made, the same may be the reasons to doubt the case prima facie. The instances are not exhaustive. Therefore, evaluation of the above facts would help the court while addressing the question of prima facie case, at the pre-arrest bail stage. On evaluation of the genesis of the case within the ambit of the above pari materia, if the court finds something to see the possibility of false implication, in such cases, the court could very well hold that prima facie, the prosecution allegations could not be believed for the purpose of denying anticipatory bail, after leaving the question as to commission of offence/offences for a detailed and fair investigation by the Investigating Officer. Indubitably, such a course of action is necessary to rule out the possibility of false implication” 12. The affidavit filed by the mother of the victim reveals that due to a misunderstanding, the victim filed a complaint ``` CRL.A NO. 460 OF 2024 ``` ``` 7 ``` against the appellant. In the affidavit, the mother of the victim stated that the victim revealed to her that no incident as alleged occurred. 13. I am of the considered view that the bar under Sections 18 and 18-A of the Act is not applicable to the facts of the case. 14. While considering the scope of jurisdiction under Section 438 Cr.P.C., the Constitution Bench of the Apex Court in Gurbaksh Singh Sibbia & Ors. v. State of Punjab [(1980) 2 SCC 565] held thus: “31. In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made. On the other hand, if it appears likely, considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice, such an order would not be made. But the converse of these propositions is not necessarily true. That is to say, it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides; and, equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond. There are several other considerations, too numerous to enumerate, the combined effect of which must weigh with the court while granting or rejecting anticipatory bail. The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant's presence not being secured at the trial, a reasonable apprehension that ``` CRL.A NO. 460 OF 2024 ``` ``` 8 ``` witnesses will be tampered with and “the larger interests of the public or the State” are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail. The relevance of these considerations was pointed out in State v. Captain Jagjit Singh [AIR 1962 SC 253 : (1962) 3 SCR 622 : (1962) 1 Cri LJ 216] , which, though, was a case under the old Section 498 which corresponds to the present Section 439 of the Code. It is of paramount consideration to remember that the freedom of the individual is as necessary for the survival of the society as it is for the egoistic purposes of the individual. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints on his freedom, by the acceptance of conditions which the court may think fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail.” ## 15. In Siddharam Satlingappa Mhetre v. State of Maharashtra [(2011) 1 SCC 694] the Apex Court held thus:- “113. Arrest should be the last option and it should be restricted to those exceptional cases where arresting the B.A.Nos.5010 of 2021 & Connected cases 40 accused is imperative in the facts and circumstances of that case. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record.” (In Sushila Aggarwal v. State (NCT of Delhi) [(2020) 5 SCC 1] ) the declaration of law in Siddharam Satlingappa Mhetre that no condition can be imposed while granting order of anticipatory bail alone was overruled). 16. In Sushila Aggarwal , the Constitution Bench of the Apex Court, following the decision in Gurbaksh Singh Sibbia , held ``` CRL.A NO. 460 OF 2024 ``` ``` 9 ``` that while considering an application (for grant of anticipatory bail) the Court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence (including intimidating witnesses), likelihood of fleeing justice (such as leaving the country), etc. 17. Having considered the entire circumstances on the touchstone of the principles discussed above, I am of the view that the appellant is entitled to anticipatory bail. In the result, (i) The Criminal Appeal is allowed. (ii) The order dated 01.03.2024 dismissing Crl.M.C No.360 of 2024 in Crime No.71/2024 of Thalassery Police Station stands set aside. - (iii) The appellant shall appear before the Investigating Officer on 11.04.2024 between 10.00 AM and 11.00 AM for interrogation. (iv) The Investigating Officer is directed to release the appellant on bail, in the event of his arrest, on his executing bond for Rs.1,00,000/- (Rupees One ``` CRL.A NO. 460 OF 2024 ``` **==> picture [15 x 9] intentionally omitted <==** Lakh only) with two solvent sureties each for the like sum. v) The appellant shall appear before the Investigating Officer on all Saturdays between 10.00 AM and 11.00 AM for a period of two months or till the final report is filed, whichever is earlier. vi) The appellant shall not influence the witnesses or tamper with the evidence. Sd/- K. BABU JUDGE saap ``` CRL.A NO. 460 OF 2024 ``` ``` 11 ``` ## **`APPENDIX OF CRL.A 460/2024`** |**`PETITIONER ANNEXURES`**|| |---|---| |**`Annexure A2`**|**`TRUE COPY OF THE ORDER DT.15.2.2024 MADE IN`**| ||**`CRL.M.C.235/2024`**| |**`Annexure A3`**|**`CERTIFIED COPY OF THE ORDER DT.1ST MARCH`**| ||**`2024 MADE IN CRL.M.C.NO.360/2024`**| |**`Annexure A4`**|**`TRUE COPY OF THE DAILY STATUS OF THE CASE`**| ||**`PERTAINING TO CRL.M.C 360/2024`**|