RITHIN PUTHIYA PURAYIL, YATHUKRISHNA M.V, SARIGA KUMMAN v. STATE OF KERALA & DEEPTI A.V.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE K. BABU`** ``` WEDNESDAY, THE 28[TH] DAY OF FEBRUARY 2024 / 9TH PHALGUNA, 1945 CRL.A NO. 1626 OF 2023 ``` ``` CRIME NO.1561/2023 OF Thaliparamba Police Station, Kannur AGAINST THE ORDER/JUDGMENT CRMC 2130/2023 OF DISTRICT COURT & ``` ## **`SESSIONS COURT,THALASSERY`** ## **`APPELLANTS:`** - **`1 RITHIN PUTHIYA PURAYIL AGED 38 YEARS S/O LATE RAMACHANDRAN, SAVITHRY SADAN HOUSE, PARASSINIKADAVU P.O, ANTHOOR VILLAGE, KANNUR, PIN - 670563`** - **`2 YATHUKRISHNA. M.V AGED 22 YEARS S/O VIJITH M.V, MOOLAYIL VADAKAYIL HOUSE, PARASSINIKADAVU P.O, ANTHOOR VILLAGE, KANNUR, PIN - 670563`** - **`3 SARIGA KUMMAN AGED 32 YEARS W/O RITHIN, SAVITHRY SADAN HOUSE, PARASSINIKADAVU P.O, ANTHOOR VILLAGE, KANNUR, PIN - 670563 BY ADVS. NANDAGOPAL S.KURUP NICHOLAS JOSEPH ABHIRAM T.K.`** ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031`** - **`2 DEEPTI. A.V AGED 26 YEARS W/O SANJITH, SOPANAM HOUSE, ANNTHOOR AMSOM, VILLAGE, KANNUR, PIN - 670563`** ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON ``` ``` 28.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 1626 OF 2023 ``` ``` 2 ``` ## . **K.BABU, J** -------------------------------------- ## Crl.A.No.1626 of 2023 --------------------------------------- ## **Dated this the 28[th] day of February, 2024** ## **J U D G M E N T** This is an appeal filed under Section 14-A of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. The challenge in this appeal is to the order dated 27.10.2023 in Crl.M.C No.2130/2023 passed by the District and Sessions Court, Thalassery. 2. The appellants are accused Nos.1 to 3 in Crime No.1561/2023 of Thalliparamba Police Station. They are alleged to have committed the offences punishable under Sections 451, 341, 323,354 and 294(b) read with Section 34 of the IPC and Section 3(2) (va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. ## The prosecution case: 3. On 03.10.2023, at 11.30 pm and on 04.10.2023 at 0.30 hours the appellants in furtherance of their common intention, trespassed into the house of the defacto complainant ``` CRL.A NO. 1626 OF 2023 ``` ``` 3 ``` and assaulted her, her husband and their child. Appellant No.1 caught hold of her hand and outraged her modesty. The defacto complainant belongs to Scheduled Caste. The appellants are not members of the Scheduled Castes or Scheduled Tribes. The appellants filed an application seeking anticipatory bail before the Sessions Court. The court rejected the application on the ground that the bail plea is barred under Sections 18 and 18-A of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act. 4. Notice was served on the defacto complainant. She did not turn up. 5. Heard the learned counsel for the appellants and the learned Public Prosecutor. 6. The learned counsel for the appellants submitted that the allegations levelled by the prosecution are false. The learned counsel submitted that the prosecution has placed no materials to attract the offence under Section 354 of the IPC. It is submitted that there is nothing to show that the appellant No.1 intentionally committed any act with intent to outrage her ``` CRL.A NO. 1626 OF 2023 ``` ``` 4 ``` modesty. 7. The learned Public Prosecutor opposed the contentions stating that there are materials to attract the offences alleged. 8. The case of the appellants is as follows: The father of appellant No.1 died in the month of June 2022. Thereafter, the husband of the defacto-complainant namely, Sanjith was regularly visiting the mother of appellant No.1. Gradually, there spread rumours in the locality that there existed a suspicious relationship between the husband of the defacto-complainant and the mother of appellant No.1. During the course of the above-narrated developments, appellant Nos.1 and 3, who are husband and wife, were abroad. It is very recently that they reached their native place on leave. On reaching their family residence, they were informed by some of their well-wishers and relatives that there was a widespread rumour in the locality involving the mother of appellant No.1 as well as the husband of the defacto complainant. Appellant Nos.1 and 3 were shocked to hear the same. Immediately thereafter, ``` CRL.A NO. 1626 OF 2023 ``` ``` 5 ``` appellant No.1 approached his mother and demanded that she should avoid any kind of company or acquaintance with Sanjit, the husband of the defacto complainant. This provoked the mother of appellant No.1 and there arose a family dispute which culminated in the expulsion of appellant No.1 from his parental home during the month of September 2023. After the said incident, appellant No.1 is residing at the parental home of appellant No.3 located in Cherukunnu. 9. Later, on 03.10.2023, appellant No.1 was at Mambala in connection with a function. On the said date, at about 11 PM, Sanjith reached the residence of appellant No.1 wherein the mother of appellant No.1 was residing alone. At that juncture, appellant No.3 visited the mother of appellant No.1 at her residence. On seeing appellant No.3, Sanjith caught hold of the neck of appellant No.3, abused her and also hit her with a stone. Witnessing the unlawful and inhuman act of Sanjith, one Sooraj, a nearby resident, interfered in the matter. Sanjith assaulted the said Sooraj as well and he sustained serious injuries on his palm. Hearing the hue and cry, appellant Nos.1 ``` CRL.A NO. 1626 OF 2023 ``` ``` 6 ``` and 2 rushed to the scene and by that time, the defactocomplainant and her son Sayanth reached there and they joined with Sanjith to attack the appellants as well as Sooraj. It was only due to the interference of the neighbouring people that the appellants could escape from the brutal attack of the husband of the defacto-complainant. Immediately after the incident, the appellants as well as Sooraj got themselves treated at the District Hospital, Kannur for the injuries they sustained. 10. The learned counsel for the appellants relied on Annexures A1 and A2, Accident Register-cum-Wound Certificates, in support of his contentions. The materials placed before the court would reveal that the defacto complainant has been living in inimical terms with appellant No.1. 11. In **Prathvi Raj Chauhan v. Union of India [(2020) 4 SCC 727],** the Apex Court held that if the complaint does not make out a prima facie case for the applicability of the penal provisions of the Act, the bar created under Sections 18 and 18A shall not apply. 12. In **Subhash Kashinath Mahajan (Dr.) v. State of** ``` CRL.A NO. 1626 OF 2023 ``` ``` 7 ``` **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 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 ``` CRL.A NO. 1626 OF 2023 ``` ``` 8 ``` 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” 13. I have gone through the FIS and the materials relied on by the appellants. I am of the view that the appellants have placed sufficient material to hold that the defacto complainant was living in inimical terms with the them. 14. The prosecution has no case that any custodial interrogation of the appellants is required. On analysis of the ``` CRL.A NO. 1626 OF 2023 ``` ``` 9 ``` facts placed before the Court, the mens rea of the appellants in the commission of the alleged act is doubtful. The appellants have established a prima facie case for getting anticipatory bail. 15. 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 Siddharam Satlingappa Mhetre v. State of Maharashtra [(2011) 1 SCC 694] 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 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 ``` CRL.A NO. 1626 OF 2023 ``` ``` 10 ``` 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.” ## 16. 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) 17. In Sushila Aggarwal , the Constitution Bench of the Apex Court, following the decision in Gurbaksh Singh Sibbia , held that while considering an application (for grant of anticipatory ``` CRL.A NO. 1626 OF 2023 ``` ``` 11 ``` 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. 18. Having considered the entire circumstances on the touchstone of the principles discussed above, I am of the view that the appellants are entitled to anticipatory bail. In the result, - (i) The Criminal Appeal is allowed. - (ii) The order dated 27.10.2023 dismissing Crl.M.C No.2130 of 2023 stands set aside. (iii) The appellants shall appear before the Investigating Officer on 07.03.2024 between 10.00 AM and 11.00 AM for interrogation. (iv) The Investigating Officer is directed to release the appellants on bail, in the event of their arrest, on their executing bond for Rs.1,00,000/- (Rupees One Lakh only) each with two solvent sureties ``` CRL.A NO. 1626 OF 2023 ``` ``` 12 ``` each for the like sum. v) The appellants shall appear before the Investigating Officer on all Mondays 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 appellants shall not influence the witnesses or tamper with the evidence. Sd/- K. BABU JUDGE saap ``` CRL.A NO. 1626 OF 2023 ``` ``` 13 ``` ## **`APPENDIX OF CRL.A 1626/2023`** ``` PETITIONER ANNEXURES Annexure A1 ``` ``` Annexure A1TRUE COPY OF THE WOUND CERTIFICATE IN RESPECT OF THE FIRST APPELLANT DATED 05.10.2023 ISSUED BY THE ASSISTANT SURGEON, KANNUR DISTRICT HOSPITAL Annexure A2TRUE COPY OF THE WOUND CERTIFICATE DATED 05.10.2023 IN RESPECT OF THE SECOND APPELLANT DATED 05.10.2023 ISSUED BY THE ASSISTANTSURGEON,KANNURDISTRICT HOSPITAL ``` //True copy//PA to Judge