Rajesh K.S and others v. State of Kerala and Meera

# `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. 1068 OF 2023 ``` ``` THE ORDER IN CRL.M.P.NO. 803/2023 OF THE COURT OF SPECIAL JUDGE FOR SC/ST (POA) ACT/ADDITIONAL SESSIONS COURT, MANNARKKAD DATED 10.05.2023 IN CRIME NO. 945/2022 OF VADAKKANCHERRY POLICE STATION, PALAKKAD DISTRICT. APPELLANTS/ACCUSED NOS. 1 TO 5: ``` ``` 1RAJESH.K.S AGED 37 YEARS S/O.KRISHNAN, CHAMAPARAMBU (H), PARUVASSERI.P.O, KANNAMBRA, ALATHUR, PALAKKAD, PIN - 678686 2MANSOOR, AGED 38 YEARS S/O.KUNAHAMMED, CHAMAPARAMBU (H), PARUVASSERI.P.O, KANNAMBRA, ALATHUR, PALAKKAD, PIN - 678686 3VIJIPRAKASH, AGED 36 YEARS S/O.KRISHNAN, CHAMAPARAMBU (H), PARUVASSERI.P.O, KANNAMBRA, ALATHUR, PALAKKAD, PIN - 678686 4BABU @ SUMESH, AGED 38 YEARS S/O.VASUDEVAN, CHAMAPARAMBU (H), PARUVASSERI.P.O, KANNAMBRA, ALATHUR, PALAKKAD, PIN - 678686 5MUKESH AGED 30 YEARS S/O.VELAYUDHAN, CHAMAPARAMBU (H), PARUVASSERI.P.O, KANNAMBRA, ALATHUR, PALAKKAD, PIN - 678686 ``` CRL. A.No. 1068 of 2023 2 ``` BY ADV V.A.JOHNSON (VARIKKAPPALLIL) ``` ## `RESPONDENT/S:` ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULUM, PIN - 682031 2MEERA, AGED 24 YEARS W/O.RAJESH, CHAMAPARAMBU (H), PARUVASSERI.P.O, KANNAMBRA, ALATHUR, PALAKKAD, PIN - 678686 ``` ## `OTHER PRESENT:` ``` PP M P PRASANTH ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 27.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` CRL. A.No. 1068 of 2023 3 ## **JUDGMENT** ## **Dated this the 27th day of July, 2023** This appeal has been filed under Section 14A (2) of the Scheduled Caste/Scheduled Tribes (Prevention of Atrocities) Act, 2015 ( for short ‘Act’), challenging viz; order in Crl.M.P.No.803/2023, dated 10.05.2023, passed by the Special Court for SC/ST (POA) Act, Mannarkkad. 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. Even though this appeal has been filed by accused Nos. 1 to 5, it is submitted by the learned counsel for the appellants that thereafter all other accused except accused No.2 surrendered before the Special Court and subsequently released on bail. Therefore, now the appeal in relation to CRL. A.No. 1068 of 2023 4 other accused except accused No.2 has become infructuous and the 2[nd] accused is pressing for anticipatory bail after to setting aside the order of the Special Court. 5. The case diary materials placed by the learned Public Prosecutor unfurls the prosecution case as under: It is alleged by the prosecution that at about 13.30 hrs on 04.07.2023, when the defacto complainant attempted to bring back her child, near the house of the 1[st] accused, who is the husband of the defacto complainant, the 1[st] accused brought the assistance of the other accused including the 2[nd] accused. The specific allegation against the 2[nd] accused is that the 1[st] accused, wrongfully restrained the brother of the defacto complainant and slapped him by using his hands, further caught hold of chest of the defacto complainant and thereby outraged her modesty. On the above premise, prosecution alleges commission of offences under Sections 323, 354 and 294(b) r/w Section 34 of the Indian Penal Code (for short ‘IPC’ hereinafter) and under Sections 3(1)(r), 3(1)(w)(i), 3(2) (Va) of the Scheduled Caster/Scheduled Tribunes (Prevention of Atrocities) Amendment Act. The 2[nd] respondent herein is the defacto CRL. A.No. 1068 of 2023 5 complainant. 6. According to the learned counsel for the appellants, the allegations are false and the 2[nd] accused/2nd appellant intervened when the defacto complainant attempted to part the custody of the minor child who had been residing along with the 1[st] accused. The 2[nd] accused has no criminal intention as alleged and he was implicated in this crime based on false allegations, to detain him in custody. It is further submitted that as per the prosecution narration itself, it could be gathered that the overt act attracting the offence under Section 354 was alleged to be done in the presence of the brother of defacto complainant and in the presence of other persons and the same would show that the falsity of the case. Accordingly, the learned counsel for the appellants pressed for setting aside the order impugned and grant of bail to the 2[nd] accused. 7. While opposing the bail, the learned Public Prosecutor submitted that, going by the prosecution allegations and statement given by the defacto complainant, prima facie, offence under Section 354 of IPC and and other offences under the Act is made out and therefore, the bar CRL. A.No. 1068 of 2023 6 under Section 18 and 18-A of the Act would squarely apply to the facts of this case. Therefore, the order impugned is liable to be confirmed. 8. 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 : 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 CRL. A.No. 1068 of 2023 7 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.” 9. 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. 10. The learned Special Court dismissed the application for anticipatory bail since it was found that there is prima facie case and therefore, in view of bar under Section 18 and 18-A of the Act, anticipatory bail could not be granted. 11. On evaluation of factual aspects involved in this case, it could be gathered that the genesis of the case is from an attempt made by the defacto complainant to forcefully take the custody of the child from the 1[st] accused, who is her husband, and the intervention of the 2[nd] accused to restrain the said attempt. Therefore, the allegations would require CRL. A.No. 1068 of 2023 8 fare investigation. Since, it is noticed that the overt acts attracting offence Section 354 of the Act and the consequential offences specifically alleged against the 2[nd] accused was done in the presence of the defacto complainant's brother, I direct the 2[nd] accused to surrender before the investigation officer and subject himself for interrogation. 12. In view of the matter, the 2[nd] accused is liable to be enlarged on bail. Therefore, 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 2[nd] accused/2nd appellant shall surrender before the Investigating Officer within ten days from today and on such surrender, the Investigating Officer can question the 2[nd] accused/2nd appellant. In the event of his arrest, the Investigating Officer shall produce the 2[nd] accused/2nd appellant before the jurisdictional court on the date of arrest itself. - ii. On such production, the jurisdictional court shall release the 2[nd] accused/2nd appellant on bail, on executing bond for Rs.30,000/- (Rupees thirty thousand only) by himself and by two solvent sureties, each for the like sum to the satisfaction of the jurisdictional court. CRL. A.No. 1068 of 2023 9 - iiii. The 2[nd] accused/2nd appellant 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. He shall meet the Investigating Officer on all Mondays in between 10.00 am to 3.00 pm for two months. - iv. The 2[nd] accused/2nd appellant shall not, intimidate the witnesses or interfere with the investigation in any manner. - v. The 2[nd] accused/2nd appellant 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