Santosh Joseph v. State of Kerala and Prameela

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **WEDNESDAY, THE 4[TH] DAY OF JANUARY 2023/14TH POUSHA, 1944** **CRL.A NO.1369 OF 2022** **AGAINST THE ORDER/JUDGMENT IN CRL.MC 1048/2022 OF DISTRICT COURT & SESSIONS COURT, THODUPUZHA CRIME NO.901/2022 OF KUMALI POLICE STATION, IDUKKI DISTRICT** ## **APPELLANT/PETITIONER/ACCUSED:** SANTHOSH JOSEPH, AGED 44 YEARS, S/O.JOSEPH THOMAS, EZHUVANTHANAM, KUMALI P.O., LABBAKANDAM IDUKKI, PIN – 685509. BY ADVS. PRAVEEN K. JOY T.A.JOY E.S.SANEEJ M.P.UNNIKRISHNAN M.K.SAMYUKTHA N.ABHILASH DEEPU RAJAGOPAL SANDRA S.KUMAR RANIYAL NIYADA P. ## **RESPONDENTS/RESPONDENT/DEFACTO COMPLAINANT:** 1 STATE OF KERALA, REPRESENTED BY STATION HOUSE OFFICER, KUMALI POLICE STATION, IDUKKI, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM- 682031. 2 PRAMEELA, AGED 54 YEARS, CHELAKKAL HOUSE, KALAMPUKADU, VAIKOM, KALLARA, KOTTAYAM, PRESENT ADDRESS BILAL HOUSE, VALIYAKANDAM, KUMILY, IDUKKI, PIN – 685509. BY ADV.SRI.G. SUDHEER, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 04.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **Crl.Appeal.No.1369 of 2022** 2 ## **JUDGMENT** This is an appeal filed under Section 14A of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred as, 'SC/ST Act' for short). The appellant is the petitioner in Crl. M.C.No.1048/2022 on the file of Special Court, Thodupuzha. 2. The appellant is arrayed as the sole accused in Crime No.901/2022 of Kumaly Police Station alleging commission of offences punishable under Sections 294(b), 354, 451 of IPC and Section 3(1)(s), 3(1)(w)(i) and 3(2)(v) (a) of the SC/ST Act. 3. Heard the learned counsel for the appellant as well as the learned Public Prosecutor. 4. Though statutory notice mandated under Section 15A(3) of the SC/ST Act to defacto ## **Crl.Appeal.No.1369 of 2022** **==> picture [7 x 9] intentionally omitted <==** complainant, the defacto complainant did not appear. 5. The prosecution case in short, is as under: On 02.11.2022 at about 6:30 p.m., the accused, who is not a member of Scheduled Caste or Scheduled Tribe, trespassed upon the rental house of the defacto complainant, who is a member of Scheduled Caste community, and caught hold on her right palm and thus outraged her modesty. That apart, the appellant called her caste name and thereby she was insulted and abused. This is the base on prosecution alleged commission of the above offences. 6. Apprehending arrest at the hands of the Kumaly police, the appellant filed Anticipatory Bail application before the Special Court under the SC/ST Act. As per Annexure-8 order in Crl. M.C.No.1048/2022, the learned Special Judge dismissed the application and now the said order ## **Crl.Appeal.No.1369 of 2022** 4 of dismissal is under challenge in this case. 7. While canvassing Anticipatory Bail to the appellant, the learned counsel for the appellant pointed out that the defacto complainant occupied the premises of the house owned by the appellant and, as tenant thereafter, it was mutually agreed between the parties to surrender vacant possession of the house. Accordingly, an agreement was executed and the copy of the same is produced before this Court as Annexure-1. It is pointed out further that before executing Annexure-1, as per Annexure-7, there was agreement to vacate the building and also to withdraw the advance paid by the defacto complainant to the accused. Accordingly, the learned counsel for the appellant, though the occurrence was alleged on 02.11.2022, the complaint was launched only on 01.12.2022 i.e., after vacating the building. It is submitted by the learned counsel for the 5 ## **Crl.Appeal.No.1369 of 2022** appellant that the defacto complainant foisted a false case since he was not satisfied with vacation of the house and, therefore, the entire allegations are false and there is no _prima facie_ case in this matter to deny Anticipatory Bail. 8. Whereas, the learned Public Prosecutor produced the Case Diary and he has pointed out the statutory bar under Section 18 and 18A of the SC/ST Act in the matter of Anticipatory Bail. He also opposed grant of bail since the allegations are serious. 9. Even after amendment and incorporation of Section 18A, a three bench of the Apex Court considered the impact of Section 18 and 18A ## _**Prathvi Raj Chauhan v. Union of India (UOI)**_ _**and Others**_ [2020 (2) KHC 423 : AIR 2020 SC 1036 : (2020) 4 SCC 727 : MANU/SC/0157/2020] and it was held that _as far as the provision of Section 18-A and anticipatory bail is_ ## **Crl.Appeal.No.1369 of 2022** **==> picture [7 x 9] intentionally omitted <==** _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_ . Therefore, the law is no more _res integra_ on the point, when the prosecution allegation make a _prima facie,_ anticipatory bail cannot be granted. 10. Thus the law is settled that when there is a _prima facie_ case, Anticipatory Bail in cases involving offences under Section 18 and 18A of SC/ST Act, is specifically barred. 11. Thus the prime question is whether the case advanced by the defacto complainant is _prima facie_ established. It could be read out from the documents produced by the appellant that the defacto complainant was a tenant of the appellant and she vacated the demised premises on 06.11.2022. Thereafter, the financial liability in between them was finalised and ## **Crl.Appeal.No.1369 of 2022** ## 7 settled on 01.12.2022. It is to be noted that the occurrence was on 02.11.2022. But no complaint was lodged before vacating the building and the complaint was lodged only on 01.12.2022, after having finalised the rental arrangement and financial transaction thereof. 12. Viewing the genesis of the case in the context of the factual events discussed, how far _prima facie_ case in this matter to be held in the affirmative? No doubt, the prosecution case, _prima facie_ not free from reasonable doubts. However, I leave the case to be investigated by the Investigating Officer fairly and untrammeled by the observation in this judgment. It is specifically made clear that the discussion regarding _prima facie_ case herein is only for the purpose of considering grant of Anticipatory Bail. In view of the above discussion, I hold that this is a fit case for granting Anticipatory Bail with a direction to appellant 8 ## **Crl.Appeal.No.1369 of 2022** to co-operate with the investigation. In the result, the order impugned stands set aside and the appeal stands allowed. The appellant is granted Anticipatory Bail on the following conditions: _1. The appellant/accused shall surrender before the Investigating Officer within ten days from today and on such surrender, the Investigating Officer can question the accused /appellant. In the event of his arrest, the Investigating Officer shall produce the accused/appellant before the Special Court on the date of surrender itself._ _2. On such production, Special Court shall release the appellant/ accused on bail, on executing bond for Rs.30,000/- (Rupees Thirty thousand only) by himself and by two sureties, each for the like sum to the satisfaction of the Special Judge._ 9 ## **Crl.Appeal.No.1369 of 2022** _3. The appellant/accused shall cooperate with investigation and shall be made available for interrogation and for the purpose of investigation, as and when the Investigating Officer is directs so._ _4. The appellant/accused, shall not, intimidate the witnesses or interfere with the investigation in any manner._ _5. The appellant/accused 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.** ww **Crl.Appeal.No.1369 of 2022** 10 ## **APPENDIX OF CRL.A 1369/2022** ## APPELLANT'S ANNEXURES: |ANNEXURE|1|TRUE COPY OF THE RECEIPT EXECUTED WITH| |---|---|---| |||ABHILASH AND AMMINI BY THE MOTHER OF| |||THE APPELLANT DATED NIL.| |ANNEXURE|2|TRUE COPY OF THE EMPLOYMENT CERTIFICATE| |||ISSUED BY LP SCHOOL DATED 02.12.2022.| |ANNEXURE|3|TRUE COPY OF THE LETTER ISSUED BY THE| |||HEAD MASTER, LP SCHOOL, VANDIPERIYAR| |||DATED 05.12.2022.| |ANNEXURE|4|TRUE COPY OF THE OWNERSHIP CERTIFICATE| |||DATED<br>02.12.2022<br>OF<br>KUMILI| |||GRAMAPANCHAYATH.| |ANNEXURE|5|TRUE COPY OF THE REPORT OF CARITAS| |||HOSPITAL DATED 05.02.2020.| |ANNEXURE|6|TRUE COPY OF THE REPLY RECEIVED UNDER| |||RTI DATED 06.12.2022.| |ANNEXURE|7|TRUE COPY OF THE PETITION AND| |||SETTLEMENT BEFORE KUMILI POLICE DATED| |||04.11.2022.| |ANNEXURE|8|CERTIFIED COPY OF THE ORDER IN CRL MC| |||NO.1048/2022<br>OF<br>THE<br>SESSIONS| |||COURT/SPECIAL JUDGE FOR THE SCHEDULED| |||CASTE & SCHEDULED TRIBES (PREVENTION OF| |||ATROCITIES)<br>ACT,<br>THODUPUZHA)DATED| |||16.12.2022.|