SAVAD, S/O Salim; NIKHIL, S/O MOHANAN; MUHAMMED HUSSAIN, S/O GULAN MUHAMMED v. STATE OF KERALA and THE STATION HOUSE OFFICER, KULATHUPUZHA POLICE STATION

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE K. BABU`** ``` MONDAY, THE 20[TH] DAY OF MAY 2024 / 30TH VAISAKHA, 1946 ``` ``` CRL.A NO. 695 OF 2024 ``` ``` CRIME NO.177/2024 OF Kulathupuzha Police Station, Kollam AGAINST THE ORDER/JUDGMENT DATED 06.04.2024 IN CRMP NO.118 OF 2024 OF SPECIAL COURT- OFFENCES UNDER SC/ST (POA) ACT,1989,KOTTARAKKARA APPELLANTS: ``` - **`1 SAVAD AGED 33 YEARS S/O.SALIM, KALLUKUZHIYIL VEEDU, CHOZHIYACODU, KULATHUPUZHA VILLAGE, KOLLAM DISTRICT-, PIN - 691310`** - **`2 NIKHIL AGED 33 YEARS S/O.MOHANAN, AKHIL MANDIRAM, KALLUKUZHY, CHOZHIYACODU, KULATHUPUZHA VILLAGE, KOLLAM DISTRICT -, PIN - 691310`** - **`3 MUHAMMED HUSSAIN AGED 48 YEARS S/O.GULAN MUHAMED, CHARUVILA PUTHEN VEEDU, PATHEKKAR, CHOZHIYACODU, KULATHUPUZHA, KOLLAM DISTRICT -, PIN - 691310`** - **`BY ADVS. K.SIJU S.ABHILASH ANJANA KANNATH`** ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031`** - **`2 THE STATION HOUSE OFFICER KULATHUPUZHA POLICE STATION, KOLLAM DISTRICT -, PIN - 691310`** ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 20.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 695 OF 2024 ``` ``` 2 ``` ## . **K.BABU, J** -------------------------------------- ## Crl.A.No.695 of 2024 --------------------------------------- ## **Dated this the 20[th ] day of May, 2024** ## **J U D G M E N T** This is an appeal filed under Section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The challenge in this appeal is to the order dated 06.04.2024 in Crl.M.P No.118/2024 passed by the Special Court for Scheduled castes/Scheduled Tribes(POA)Act cases, Kottarakkara. 2. The appellants are accused Nos.1 to 3 respectively in Crime No.177/2024 of Kulathupuzha Police Station. They are alleged to have committed offences punishable under Sections 341, 294(b), 324, 506 read with Section 34 of the Indian Penal Code and Sections 3(1)(r), 3(1)(s) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (Amendment Act 2015) (for short ‘the Act’). ## The prosecution case: 3. Appellant Nos. 1 and 2 are lorry drivers. Appellant No.3 is a loading worker. The defacto complainant is also a lorry driver. The defacto complainant belongs to the Scheduled Caste community. The appellants are not members of the Scheduled Caste or Scheduled Tribe community. On 15.02.2024 at 8.30 p.m. at Chozhiyacodu the ``` CRL.A NO. 695 OF 2024 ``` ``` 3 ``` appellants showered abusive words towards the defacto complainant. Appellant No.1 caught hold of his neck. He insulted the defacto complainant with intent to humiliate him within public view. He also abused the defacto complainant by calling his caste name within public view. The appellants voluntarily caused hurt to the victim. They also threatened him with fear of death. The appellants committed the above acts knowing that the victim belongs to the Scheduled Caste community. 4. Notice was served on the victim through the SHO concerned. He 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 previous enmity is the reason for the registration of the FIR. It is also submitted that the delay in the registration of the crime is sufficient to conclude that the appellants have been falsely impleaded in the crime. They have not committed any offences as alleged. 7. The learned Public Prosecutor opposed the bail plea of the appellants. The learned Public Prosecutor submitted a report stating that appellant No.1 has criminal antecedents. It is submitted that he is the accused in as many as six crimes. ``` CRL.A NO. 695 OF 2024 ``` ``` 4 ``` 8. The learned counsel for the appellants submitted that as far as appellants Nos.2 and 3 are concerned, the offences under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, are not attracted. 9. The case diary has been made available. I have gone through the first information statement and the related documents. The specific allegation in the FIS is that appellant No.1, on 15.02.2024 at 8.30 p.m. abused the victim by calling his caste name. It is further specifically alleged that appellant No.1 insulted him with the intention of humiliating him. The prosecution alleges that the acts alleged occurred within public view. The learned Public Prosecutor submitted that the appellants are not entitled to anticipatory bail in view of the bar contained in Sections 18 and 18-A of the Act. 10. In **Prathvi Raj Chauhan v. Union of India [(2020) 4 SCC 727],** the Supreme Court held that the bar created under Sections 18 and 18-A shall not apply if the complaint does not make out a prima facie case for the applicability of the provisions of the Act. 11. In **Subhash Kashinath Mahajan (Dr.) v. State of 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 ``` CRL.A NO. 695 OF 2024 ``` ``` 5 ``` case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide. 12. As far as the overt acts alleged against appellant No.1 are concerned, the FIS and the other material placed before the court prima facie make out the offences under the Act. 13. Therefore, in so far as the plea of appellant No.1 is concerned, the bar under Sections 18 and 18-A Act is applicable. 14. Moreover the learned Public Prosecutor reported that appellant No.1 is the accused in the following crimes: - (i) Kulathupuzha PS Cr.368/2008 U/s 143, 147, 294(b), 353, 149 IPC. - (ii) Cr.28/2012 U/s 143, 147, 509, 149 IPC. - (iii) Cr.233/2015 U/s 294(b), 324, 323, 452, 427 IPC. - (iv) Cr.686/2019 U/s 294(b), 341, 506 (I), 323 IPC. - (v) Cr.1170/2021 U/s 341, 294(b), 323, 324, 506 IPC, Sec.3(1)(r), (s), 3(2)(va) of SC/ST (POA) Amendment - Act. - (vi) Kadakkal PS Cr.624/2019 U/s 341, 323, 324, 354, 506(i) - & 34 IPC 15. Coming to the case against appellant Nos.2 and 3, the FIS and the other materials do not reveal any specific allegations against them so as to attract the offences under the Act. ``` CRL.A NO. 695 OF 2024 ``` ``` 6 ``` 16. Therefore, I am of the considered view that the bar under Sections 18 and 18-A of the Act is not applicable as far as appellant Nos. 2 and 3 are concerned. The offences under the IPC are bailable. 17. 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 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 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 ``` CRL.A NO. 695 OF 2024 ``` ``` 7 ``` 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.” ## 18. 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). 19. 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 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. ``` CRL.A NO. 695 OF 2024 ``` ``` 8 ``` 20. Having considered the entire circumstances on the touchstone of the principles discussed above, I am of the view that appellant No.1 is not entitled to anticipatory bail. Appellant Nos.2 and 3 have made out a case for getting pre-arrest bail. (i) The Criminal Appeal as against appellant No.1 stands dismissed. - (ii) The order dated 06.04.2024 rejecting anticipatory bail to appellant No.1 stands confirmed. - (iii) Appellant No.1 shall forthwith surrender before the Investigating Officer. (iv) The order dated 06.04.2024 dismissing Crl.M.P.No.118/2024 as against appellant Nos. 2 and 3 stands set aside. (v) Appellant Nos. 2 and 3 shall appear before the Investigating Officer on 31.05.2024 between 10.00 AM and 11.00 AM for interrogation. (vi) The Investigating Officer is directed to release appellant Nos.2 and 3 on bail, in the event of their arrest, on their executing bond for Rs.2,00,000/- (Rupees One Lakh only) each with two solvent ``` CRL.A NO. 695 OF 2024 ``` ``` 9 ``` sureties each for the like sum. (vii) Appellant Nos.2 and 3 shall appear before the Investigating Officer on all Mondays between 10.00 AM and 11.00 AM till the final report is filed. (viii) The appellants shall not influence the witnesses or tamper with the evidence. Sd/- K. BABU JUDGE saap