Saji and Siji v. State of Kerala and Others (CRL.A No. 1291 of 2022)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` WEDNESDAY, THE 14[TH] DAY OF DECEMBER 2022 / 23RD AGRAHAYANA, 1944 CRL.A NO. 1291 OF 2022 ``` ## **`AGAINST THE ORDER/JUDGMENT IN CRMP 4676/2022 OF DISTRICT & SESSIONS COURT, ALAPPUZHA`** ## **`APPELLANTS/ACCUSED NOS.2 AND 4:`** |**`1`**|**`SAJI`**| |---|---| ||**`AGED 34 YEARS`**| ||**`S/O MOHANAN, VAROTTIL HOUSE,`**| ||**`VALIYAKULANGARA P. O, KARAZHMA,`**| ||**`CHENNITHALA, ALAPPUZHA., PIN - 690104`**| |**`2`**|**`SIJI`**| ||**`AGED 37 YEARS`**| ||**`S/O MOHANAN, VAROTTIL HOUSE,`**| ||**`VALIYAKULANGARA P.O, KARAZHMA,`**| ||**`CHENHITHALA, ALAPPUZHA., PIN - 690104`**| ||**`BY ADVS.`**| ||**`SANIL KUNJACHAN`**| ||**`ARTHUR B. GEORGE`**| ||**`T.M.RESHMI`**| ## **`RESPONDENTS/COMPLAINANTS:`** |**`1`**|**`STATE OF KERALA`**| |---|---| ||**`REPRESENTED BY PUBLIC PROSECUTOR,`**| ||**`HIGH COURT OF KERALA, PIN - 682031`**| |**`2`**|**`STATION HOUSE OFFICER`**| ||**`MANNAR POLICE STATION,`**| ||**`MANNAR, ALAPPUZHA., PIN - 689622`**| |**`3`**|**`AJAYAN`**| ||**`AGED 43 YEARS`**| ||**`S/O. V. JAYAN, PAKKALAYIL (H)`**| ||**`KUTTAMPEROOR P.O`**| ||**`ALAPPUZHA., PIN - 689623`**| ||**`SRI.G.SUDHEER, PUBLIC PROSECUTOR`**| |**`THIS `**|**`CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON`**| |**`14.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:`**|| ``` CRL.A NO. 1291 OF 2022 ``` ``` 2 ``` ## **JUDGMENT** Dated this the 14[th] day of December, 2022 This is an appeal filed under Section 14A of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, (hereinafter referred to as “the SC/ST (POA) Act, for convenience”) by the appellants, who are accused Nos.2 and 4 in crime No.623 of 2022 of Mannar Police Station, registered alleging commission offence punishable under Sections 143, 147, 148, 323, 324, 308, 379, 427, 506 read with 149 of IPC and Sections 3(1)(r) and 3(1)(s) of the SC/ST (POA) Act, challenging order dated 26.11.2022 in Crl.M.P.No.4676/2022 passed by the Special Judge under the SC/ST (POA) Act, Alappuzha. 2. Heard the learned counsel for the appellants, Sri.Baiju/the Injured, Sri.Ajayan/the defacto complainant, who appeared before this Court in person and the learned Public Prosecutor. ``` CRL.A NO. 1291 OF 2022 ``` ## **`3`** 3. It is submitted by the learned Public Prosecutor that since the accused are only four in numbers, offence under Section 149 of IPC was deleted by filing a separate report. 4. The prosecution case is that at 9 pm on 26.08.2022, accused Nos.1 to 4, who do not belong to Scheduled Caste/Scheduled Tribe community, after sharing common intention to assault the defacto complainant and his employee, Sri.Baiju, who is a member of Scheduled Caste, trespassed into the sit-out of the house of the defacto complainant, and abused him by calling his caste name and also abused his employee, Sri.Baiju. Then the accused intimidated the defacto complainant with dire consequences. Further the accused brandished a steel knife towards the defacto complainant with intention to do so. Subsequently, on the same day at about 9.15 p.m., the accused persons trespassed into the rental house of the ``` CRL.A NO. 1291 OF 2022 ``` ``` 4 ``` friend of the defacto complainant named, Baiju and abused him by calling his caste name. Then the first accused attempted to hack on the head of the said Baiju and when he evaded, the same caused injuries on his shoulder. Further, the second accused committed mischief by destructing the mobile phone of Baiju. In the meantime, the third accused beat on the back of Baiju using an iron rod and when he fell down, all the accused, jointly assaulted him and also committed theft of an amount of Rs.5,500/-. On this premise, the prosecution alleges commission of the above offences by the accused. 5. The learned counsel for the appellant, while attempting to upset the order of the Special Court disallowing anticipatory bail, vehemently argued that though the occurrence was on 26.08.2022, Police did not register any case _suo motu_ and on 02.09.2022, a private complaint was lodged before the Judicial First Class Magistrate Court, ``` CRL.A NO. 1291 OF 2022 ``` ``` 5 ``` Chengannur raising allegations against the accused and it is submitted by the learned counsel for the appellants/accused 2 & 4 further that no serious overt acts alleged against the appellants. According to the learned counsel for the appellants, the prosecution materials available do not suggest commission of any offence under Section 3(1)(r) and 3(1)(s) of the SC/ST (POA) Act since the words alleged to be uttered by the accused by calling the caste name was inside the room and a place not within public. 6. Whereas, it is submitted by the learned Public Prosecutor that, there are specific allegations against all the accused in this case and therefore, the learned counsel for the appellants/accused 2 & 4 is not right in submitting that no overt acts are alleged against the appellants. It is submitted by the learned Public Prosecutor that the fourth accused/2nd petitioner is having criminal antecedents and ``` CRL.A NO. 1291 OF 2022 ``` ``` 6 ``` he had involved in two more crimes. 7. Sri.Baiju, the victim in this crime appeared and detailed overt acts of accused Nos.1 to 4 in tune with the statement given by him before the Police and also submitted that he sustained injuries on his right shoulder and elbow and he underwent treatment for the same. He also submitted that though he was advised to be admitted, he was not admitted at the hospital since he had no bystanders to assist him. Sri.Ajayan, the defacto complainant also re-iterated the same allegations. 8. Insofar as offences under the SC/ST (POA) Act are concerned, there is specific bar under Section 18 and 18-A of the Act to grant anticipatory bail. 9. 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 three Bench of the Apex Court ``` CRL.A NO. 1291 OF 2022 ``` ``` 7 ``` 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 and the court has the power to grant anticipatory bail if the prosecution allegations do not make a _prima facie_ case. 10. In this case, the specific allegation to be read out from the statement given by the victim, Baiju is that on 26.08.2022 at about 9.15 hours, Shibu, Sajimohan and Rajesh brake opened the room, where the victim was ``` CRL.A NO. 1291 OF 2022 ``` ## **`8`** staying and trespassed into the said room. Then the accused abused him by calling his caste name and thereafter, Shibu caught hold his neck. Then, Sajimohan put the mobile phone of the defacto complainant on the ground and the same was broken. Then, Sajimohan, Rajesh and the brother of Sajimohan jointly manhandled the defacto complainant and pushed him down. The allegation runs to the extent that finally Shibu beat on the head of the defacto complainant by using a chair and the chair was broken. On hearing his cry, people assembled and later, he was taken to hospital. 11. The vital point that has been argued by the learned counsel for the appellants/accused 2 & 4 is that there is delay in filing the private complaint/lodging the FIR. According to the learned counsel, the delay is not properly explained. In the private complaint itself, filing of complaint before the Station House Officer and also filing of complaint ``` CRL.A NO. 1291 OF 2022 ``` ## **`9`** before the Superintendent of Police, Alappuzha are stated prior to filing of the private complaint. 12. The pertinent question is whether any fatal delay in preferring the complaint. In this connection, two documents assume significance. The first document is the wound certificate issued from District Hospital, Mavelikkara. As per the wound certificate, Baiju sought medical assistance from the District Hospital on 27.08.2022 at 8.35 a.m., and during his examination, he had stated before the Doctor that he was assaulted by persons known by sight. The same has been narrated in column No.8 of the wound certificate under the head ‘History and alleged cause of injury’ by the Doctor. That apart, two injuries, viz., (1) cut injury on right shoulder and (2) cut injury on right elbow also noted in the wound certificate with complaints of pain over left shoulder and forearm. The second document is one showing the treatment given to the victim dated 27.08.2022 ``` 10 ``` ## **`CRL.A NO. 1291 OF 2022`** at Govt. Hospital, Mavelikkara, wherein also, cut injuries noted in the wound certificate were reiterated with advice to admit the injured in the ward for 24 hours observation. But the victim stated before this Court that he was not admitted for want of bystanders. That apart, OP ticket dated 28.08.2022 issued from PHC, Mannar also forms part of the treatment records. 13. Herein, the prosecution alleges commission of very serious offences. The same include offence under Section 308 of IPC. The allegation of commission of offence under Section 308 of IPC would squarely attract offence punishable under Section 3(2) of the SC/ST (POA) Act. That apart, there is allegation of commission of other offences in the Schedule described in Section 3(2)(va) of the SC/ST (POA) Act. Considering the prime question as to whether there is _prima facie_ case or not, case diary materials placed and ## **`CRL.A NO. 1291 OF 2022`** ## **`11`** discussed in detail, would suggest a _prima facie_ case. Therefore, grant of pre-arrest bail is barred under Section 18 and 18-A of the Act. In view of the matter, the order impugned does not require any interference. Accordingly, this criminal appeal fails and is dismissed. **Sd/A. BADHARUDEEN JUDGE** nkr ``` 12 ``` ## **`CRL.A NO. 1291 OF 2022`** ## **`APPENDIX OF CRL.A 1291/2022`** ``` PETITIONER ANNEXURES Annexure A1 ``` ``` CERTIFIED COPY OF THE DISMISSAL ORDER IN CRIMINAL.MP NO 4676/2022 DATED 26/11/2022 IN DISTRICT AND SESSIONS COURT ALAPPUZHA. ```