SATHEESH S/O SASI v. STATE OF KERALA

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN MONDAY, THE 21[ST] DAY OF AUGUST 2023 / 30TH SRAVANA, 1945** **CRL.A NO. 505 OF 2023** **CRIME NO.131/2023 OF PEECHI POLICE STATION, THRISSUR** **ORDER DATED 20.03.2023 IN CRL.M.P.NO.3/2023 OF SPECIAL COURT FOR SC/ST (POA) ACT CASES, THRISSUR** ## **APPELLANT/SECOND PETITIONER/2ND ACCUSED:** SATHEESH S/O SASI, AGED 38 YEARS, ELINJERY HOUSE, VANIYAMPARA, MANJAVARI DESOM, PEECHI VILLAGE, THRISSUR, PIN - 680652 BY ADVS.K.K.JAYARAJ NAMBIARSIDHARTH J NAMBIAR ## **RESPONDENTS/COMPLAINANT & DEFACTO COMPLAINANT:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2 STATION HOUSE OFFICER PEECHI POLICE STATION, THRISSUR DISTRICT, PIN - 680652 3 RATHEESH K.K. S/O KESU, ADUKKALAPARA, PEECHI, VANIAMPARA P.O, THRISSUR, PIN – 680653 SRI.RENJITH GEORGE (SR.PUBLIC PROSECUTOR) THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 21.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **CRL.A NO. 505 OF 2023** **2** ## **JUDGMENT** _Dated this the 21[st] day of August, 2023_ This appeal has been filed under Section 14A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as “the SC/ST Act, for convenience”), challenging the order of the Special Judge, Thrissur, under the SC/ST Act, dated 20.03.2023, whereby the learned Special Judge dismissed anticipatory bail, at the instance of the appellant, who is arrayed as the second accused vide Crl.M.P.No.3/2023 in Crime No.131/2023 of Peechi Police Station, along with the anticipatory bail application filed by the first accused also. 2. Learned Public Prosecutor submitted that notice has been served upon the defacto complainant under Section 15A(3) of the SC/ST Act with opportunity of hearing as mandated under Section 15A(5) of the SC/ST Act and memo showing service of notice has been placed, but the defacto complainant did not appear. 3. Heard the learned counsel for the appellant and the **CRL.A NO. 505 OF 2023** **3** learned Public Prosecutor. Perused the case diary and the order impugned in detail. 4. The prosecution case is that, at about 8.30 P.M., on 21.02.2023, when the defacto complainant came out from Wahab Stores at Vaniyampara, the second accused called his caste name and abused him in public road. Thereafter, the second accused along with the first accused pulled him down and beat him. The further allegation is that the first accused then beat on the head of the defacto complainant by using a soda bottle and the same caused injuries to the defacto complainant. The defacto complainant is a member of Scheduled Caste community whereas the accused persons are not members of either Scheduled Caste or Scheduled Tribe community. Thus the prosecution alleges commission of offences under Sections 294(b), 323, 324, 341 and 308 read with Section 34 of the Indian Penal Code and Section 3(1)(x) of the SC/ST Act. 5. While impeaching the correctness of the order of the Special Court, whereby anticipatory bail was refused to the appellant, learned counsel for the appellant submitted that going by the FIR, there is no allegation against the appellant and the Special Court also found in paragraph No.11 of the impugned **CRL.A NO. 505 OF 2023** **4** order that no offence under the SC/ST Act has been made out, in so far as the appellant is concerned. It is submitted further that even going by the other allegation in this matter soda bottle was used by the first accused to beat on the head of the defacto complainant and the same caused injuries. Therefore, arrest and custodial interrogation of the appellant are not necessary. Therefore, he is liable to be released on anticipatory bail. 6. Learned Public Prosecutor would submit that offence under Section 3(1)(x) of the SC/ST Act is wrongly mentioned in the FIR with reference to the old Act and in this matter, offence under Section 3(1) (r) and (s) would attract since there is abuse against the defacto complainant by calling his caste name and also by using abusive words. It is also submitted that, therefore, the bar under Section 18 and 18A of the SC/ST Act would attract and in such a case, anticipatory bail cannot be granted. Therefore, the Special Court rightly dismissed the anticipatory bail application at the instance of the appellant and the said order does not deserve any interference. 7. Going by the prosecution allegations, the allegation is that the second accused called caste name of the defacto complainant and abused him in public road and thereafter, the **CRL.A NO. 505 OF 2023** **5** second accused along with the first accused pulled him down and beat him. The further allegation is that the first accused then beat on the head of the defacto complainant by using a soda bottle and the same caused injuries to the defacto complainant. There is a recital in the FIS that Satheesh, the second accused and the appellant herein, called caste name of the defacto complainant and abused him. Therefore, the finding of the Special Court that as far as the appellant is concerned, there is no offence made out under the SC/ST Act found to be erroneous though the same has been submitted as one among the grounds to grant anticipatory bail to the appellant. 8. In the FIS, it has been stated that there is rivalry in between the defacto complainant and the first accused in relation to the previous dispute and the overt acts are in continuation of the said rivalry. 9. Grant of anticipatory bail in cases under the SC/ST Act is well settled. Law regarding grant of anticipatory bail in cases under Section 18-A of the SC/ST Act is settled as per the decision of a 3 Bench of the Apex Court reported in _**[2020 (2) KHC 423 : AIR 2020 SC 1036 : (2020) 4 SCC 727 : MANU/SC/0157/2020], Prathvi Raj Chauhan v. Union of**_ **CRL.A NO. 505 OF 2023** **6** _**India(UOI) & Ors.**_ , 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 prima facie and the court has the power to grant anticipatory bail if the prosecution allegations do not make a _prima facie_ case _._ 10. Coming to the facts of this case rivalry between the first accused and the defacto complainant has been stated in the FIS. Going by the wound certificate of the defacto complainant, he suffered lacerated wound – 4x1x1 cm. on right frontal parietal region and contusion with other minor injuries. The wound certificate shows that he had smell of alcohol. Since rivalry exists between the first accused and the defacto complainant, there is doubt in the prosecution case _prima facie._ Therefore, the allegation against the appellant would require **CRL.A NO. 505 OF 2023** **7** effective investigation and I leave the same to the domain of the Investigating Officer. 11. Having regard to the facts and circumstances of this case, the appeal stands allowed and the order impugned stands set aside. The appellant is enlarged on anticipatory bail on the following conditions: - i. The appellant shall surrender before the Investigating Officer within ten days from today and on such surrender, the Investigating Officer can question the appellant and record his statement, if necessary. In the event of his arrest, the Investigating Officer shall produce the appellant before the Special Court on the date of arrest itself. - ii. On such production, Special Court shall release the appellant on bail, on executing bond for Rs.30,000/- (Rupees Thirty thousand), by himself and by two sureties, each for the like sum to the satisfaction of the Special Court. - iii. The 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. - iv. The appellant, shall not, intimidate the witnesses or interfere with the investigation in any manner. **CRL.A NO. 505 OF 2023** **8** - v. The 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** csl