Sasipriyan S. and Viji R. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **THURSDAY, THE 4[TH] DAY OF JANUARY 2024 / 14TH POUSHA, 1945 CRL.APPEAL NO. 1938 OF 2023** **AGAINST THE ORDER DATED 08.12.2023 IN CRMC 3077/2023 OF THE SPECIAL COURT FOR TRIAL OF OFFENCES UNDER SC/ST(POA)ACT, NEDUMANGAD CRIME NO.1458/2023 OF POONTHURA POLICE STATION,** ## **THIRUVANANTHAPURAM** ## **APPELLANTS/PETITIONER NOS.1&2/ACCUSED NOS.2&1:** - **1 SASIPRIYAN S., AGED 47 YEARS, S/O SASIDHARAN, T.C 68/85-1, AKSHAYA BHAVAN, EDAYAR, THIRUVALLAM P.O, THIRUVANANTHAPURAM DISTRICT, PIN – 695027.** **2 VIJI R., AGED 40 YEARS, W/O SASIPRIYAN, T.C 68/85-1, AKSHAYA BHAVAN, EDAYAR, THIRUVALLAM P.O, THIRUVANANTHAPURAM DISTRICT, PIN – 695027. BY ADVS. MANU RAMACHANDRAN M.KIRANLAL R.RAJESH (VARKALA) T.S.SARATH SAMEER M NAIR SAILAKSHMI MENON JOTHISHA K.A. DELLA MARIAM THOMAS DIVYA RANI K.** ## **RESPONDENTS/RESPONDENTS/I.O.& STATE:** - **1 THE STATION HOUSE OFFICER POLICE STATION OF POONTHURA, THIRUVANANTHAPURAM DISTRICT, PIN – 695026.** 2 Crl.Appeal No.1938 2023 - **2 THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031.** **SMT SEENA C., PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 18.12.2023, THE COURT ON 04.01.2024 DELIVERED THE FOLLOWING:** 3 Crl.Appeal No.1938 2023 ## **P.G. AJITHKUMAR, J.** **----------------------------------------------------------Crl.Appeal No.1938 2023** **----------------------------------------------------------Dated this the 4[th] day of January, 2024** ## **JUDGMENT** The appellants are accused Nos.1 and 2 in crime No.1458 of 2022 of Poonthura Police Station. Their application for anticipatory bail was dismissed by the Special Court for the trial of offences under the SC/ST (POA) Act, Nedumangad. Aggrieved thereby, they preferred this appeal under Section 14A of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 [SC/ST (POA) Act]. 2. There are five accused. Crl.M.C.No.3077 of 2023 was by the appellants along with accused Nos.3 and 4. As per the order dated 08.12.2023 the court below granted anticipatory bail to accused Nos.3 and 4. The court below declined to grant bail to the appellants. Accused No.5 filed Crl.M.C.No.7 of 2023, which also was allowed by the court below. 3. The allegations with which the crime was registered 4 Crl.Appeal No.1938 2023 are the following: The de facto complainant belongs to Scheduled Castes. She allegedly dumped waste on the public pathway near to her house. Out of that and other reasons, at around 5.00 p.m. on 29.10.2023 while the 2[nd] accused washed toilet waste in a stream near to the house of the de facto complainant and while the 5[th] accused taking bath, at the instigation of the 2[nd] accused, the 5[th] accused had exhibited his nudity with the knowledge that the de facto complainant was there in her house. Accused in furtherance of their common intention also had uttered obscene and insulting words saying the caste name of the de facto complainant. They did so with a view to insult and harass the de facto complainant. 4. Notice on this appeal was directed to be served on the de facto complainant. The de facto complainant appeared on 21.12.2023 in person. She expressed her inability to engage a counsel of her own. Therefore, Advocate Sri.T.P.Pradeep, a member of the High Court Bar Association, was appointed as Amicus Curiae. 5 Crl.Appeal No.1938 2023 5. Heard the learned counsel for the appellants, the learned Public Prosecutor and the learned Amicus Curiae. 6. The court below dismissed the application for anticipatory bail concerning the appellants holding that the materials collected by the investigating agency reveal commission of an offence under the SC/ST (POA) Act by the appellants. The learned counsel for the appellants would submit that the court below considered the application for anticipatory bail at the initial stage of investigation and the materials subsequently collected reveal that the allegations levelled against the appellants are false. It is pointed out that the de facto complainant and her husband were not in their house at the time of occurrence; whereas, they were in the premises of SNDP Sakha Yogam, Edayar. It is submitted that a crime was registered against the de facto complainant and her husband under the POCSO Act for harassing the children of the appellants as crime No.1363 of 2023. Regarding dumping of waste on the public road also, complaints were lodged against the de facto complainant. The learned counsel submits 6 Crl.Appeal No.1938 2023 that in order to wreak vengeance on that, a false complaint was lodged, which resulted in registration of the present crime. 7. The learned Amicus Curiae submitted on behalf of the de facto complainant that the materials collected by the investigating agency cannot be trusted fully, especially the CCTV visuals. It is his submission that there is a conscious attempt by the investigating agency to help the appellants and therefore grant of anticipatory bail to the appellants would adversely affect the investigation. 8. The learned Public Prosecutor handed over the Case Diary for my perusal and submitted that materials collected so far would not substantiate the allegations in the complaint. 9. On a perusal of the Case Diary, a totally independent witness, who video recorded the programme of the Edayar SNDP Yogam on 29.10.2023, had seen furnished evidence to the effect that the de facto complainant and her husband were present at that place in the evening. The 7 Crl.Appeal No.1938 2023 de facto complainant had to perform a programme in the annual day celebration of the SNDP, Edayar Branch. Along with that, the visuals from the CCTV installed in the house of the de facto complainant indicates that the de facto complainant was not available in her house at the time when the alleged incident of the 2[nd] accused taking bath and exhibiting nudity, which was at about 5.45 p.m. on 29.10.2023. 10. In **Subhash Kashinath Mahajan v. State of Maharashtra [(2018) 6 SCC 454],** the Apex Court after considering the provisions of the SC/ST Act and various decisions including the one in **N.T.Desai v. State of Gujarat [1997 (2) GLR 942],** issued a few guidelines for dealing with the applications for anticipatory bail, arrest of public servant and quashing of FIRs about offences under the SC/ST Act. In **Union of India v. State of Maharashtra [(2020) 4 SCC 761],** a three-judge Bench of the Apex Court reviewed the aforesaid decision and directions Nos. iii and iv in that decision were recalled. Consequently, direction No.v was held 8 Crl.Appeal No.1938 2023 to fade away. Direction No.ii however remains which reads: “ii) There is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide. We approve the view taken and approach of the Gujarat High Court in **Pankaj D Suthar** (supra) and **Dr.NT Desai** (supra) and clarify the judgments of this Court in **Balothia** (supra) and **Manju Devi** (supra);” 11. A Three judge bench of the Apex Court in **Prathvi Raj Chauhan v. Union of India [(2020) 4 SCC 727],** observed that if a prima facie case has not been made out attracting the provisions of SC/ST Act, the bar created by Section 18 on anticipatory bail is not attracted. The Apex Court reiterated the said principle in **Haji Iqbal v State of UP and Others [AIR 2023 SC 3964]** . The Apex Court also explained how the prosecution case has to be approached when there is an allegation that the complaint was instituted with the ulterior motive of wreaking vengeance. It was held that if there is an allegation that the prosecution was launched with the ulterior motive of wreaking vengeance and 9 Crl.Appeal No.1938 2023 proves manifestly frivolous or vexatious, the court owes a duty to look into the FIR with care and a little more closely. It was also observed that once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc, then he would ensure that the complaint is very well drafted with all necessary pleadings. Bearing the above in mind, the complaint in this case and the attending circumstances are to be appreciated. 12. The facts and circumstances of this case adverted to herein-before would reveal that the allegations in the complaint may not be correct. At any rate, the materials are insufficient to show _prima facie_ commission of an offence under the SC/ST Act. In the light of the law laid down in the aforesaid decisions, bar under Section 18 of the SC/ST (POA) Act does not apply to this case. Considering the nature of the alleged offence, the appellants can be granted anticipatory bail. 13. Accordingly, this appeal is allowed. In the event of arrest, the investigating officer shall, after interrogation and 10 Crl.Appeal No.1938 2023 other processes of investigation, release the appellants on bails on the execution of bonds for Rs.50,000/- (Rupees fifty thousand only), with two solvent sureties for the like amount each, to the satisfaction of the investigating officer, and on the following conditions: - (i) The appellants shall not influence or intimidate the de facto complainant or witnesses or tamper with evidence; - (ii) They shall appear before the investigating officer as and when called for; and - (iii) During the bail period, they shall not get involved in any offence. In case of breach of the bail conditions, the prosecution shall be at liberty to apply for cancellation of the bail before the jurisdictional court. It is made clear that the observations made above are to decide the bail application only. Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr 11 Crl.Appeal No.1938 2023 ## **APPENDIX OF CRL.A 1938/2023** - **APPELLANTS' ANNEXURES** - **Annexure A1** **THE TRUE COPY OF THE FIR IN CRIME NO.1458/2023 OF POONTHURA POLICE STATION, THIRUVANANTHAPURAM DISTRICT** - **Annexure A2** - **THE TRUE COPY OF THE COMPLAINT FILED BY THE ACCUSED NO.3 DATED 26.04.2023 BEFORE POONTHURA POLICE STATION, THIRUVANANTHAPURAM DISTRICT ALONG WITH RECEIPT VIDE PETITION NO.44101/2023 DATED 26.04.2023** ## **Annexure A3** - **THE TRUE COPY OF THE COMPLAINT FILED BY THE ACCUSED NO.3 DATED 12.06.2023 BEFORE POONTHURA POLICE STATION, THIRUVANANTHAPURAM DISTRICT ALONG WITH RECEIPT VIDE PETITION NO.58136/2023 DATED 12.06.2023** - **Annexure A4 THE TRUE COPY OF THE COMPLAINT DATED 09.10.2023 PREFERRED BY APPELLANTS BEFORE SECRETARY, CORPORATION OF THIRUVANANTHAPURAM ALONG WITH RECEIPT VIDE. PETITION NO.2488/23 DATED 09.10.2023** - **Annexure A5 THE TRUE COPY OF THE COMPLAINT DATED 09.10.2023 PREFERRED BY APPELLANTS BEFORE CITY POLICE COMMISSIONER, THIRUVANANTHAPURAM ALONG WITH RECEIPT VIDE. PETITION NO.66777/23 DATED 10.10.2023**