Seenath and Nouphal v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 30TH DAY OF OCTOBER 2014/8TH KARTHIKA, 1936** ## **Bail Appl..No. 7753 of 2014 ()** ## **------------------------------CRIME NO. 1414/2014 OF IRINJALAKUDA POLICE STATION, TRISSUR DISTRICT** **--------------** ## **PETITIONERS/1ST AND 2ND ACCUSED :** **---------------------------------------------------** **1. SEENATH, AGED 35 YEARS,W/O SIDDIQUE, OLIPARAMBIL HOUSE, VALLIVATTOM DESOM, MUKUNDAPURAM TALUK, THRISSUR DISTRICT** **2. NOUPHAL, AGED 40 YEARS,** **S/O IBRAHIMKUTTY, PAMPINEZHATH HOUSE, CHAPPARA DESOM, KODUNGALLOORE TALUKE, THRISSUR DISTRICT** **BY ADVS.SRI.G.SREEKUMAR (CHELUR) SRI.N.L.BITTO** ## **RESPONDENTS/DEFACTO - COMPLAINANT:** **------------------------------------------------------------** **STATE OF KERALA, THROUGH THE SUB INSPECTOR OF POLICE, IRINJALAKUDA POLICE STATION, KATTUNGACHIRA IRINJALAKUDA, THRISSUR DISTRICT REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682031** ## **BY PUBLIC PROSECUTOR SRI. DHANESH MATHEW MANJOORAN** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 30-10-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **bp** ## **ALEXANDER THOMAS, J. ----------------------------B.A.No.7753 Of 2014 --------------------------------Dated this the 30[th] day of October, 2014.** ## **O R D E R** The petitioners herein are accused Nos.1 and 2 in Crime No.1414 of 2014 of Irinjalakkuda Police Station, Trissur District initially registered for offences punishable under Sections 447, 425, 323, 324, 294(B), 354, 506(ii), 308 r/w Section 34 of the Indian Penal Code and Section 3(i)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 2. It is now pointed out by both sides that the offences initially registered under Sections 308 of IPC and 3(1)(x) of Act 1989, were deleted and the offence under Section 341 of IPC and Section 3(i)(xi) of Act, 1989 respectively have been added in respect of the above said crime. So as of now, the case is registered for the offences punishable under Sections 447, 425, 323, 324, 294b, 354, 506(ii) and 341 read with Section 34 of IPC and Section 3(i)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 3. The allegations against the petitioners are that the petitioners trespassed and destroyed the boundary of the lady _de facto_ complainant's property and assaulted and abused her with ::2:: ## **B.A.No.7753 Of 2014** filthy languages before the inspection of a commission in a civil suit and thus they have committed the offences. The petitioners submit that they are absolutely innocent of the allegations and that they have been falsely foisted in this crime due to the civil dispute with the petitioners regarding the pathway through the defacto complainant's property that the petitioners have the right to use the pathway but, the defacto complainant had obstructed the same several times. 4. Petitioners would submit that Annexure-I is the complaint submitted by the 1[st] petitioner on 2.7.2014 before the Irinjalakuda Police regarding obstruction caused by the defacto complainant and Annexure-2 is the copy of the plaint in civil suit filed as O.S.No.1543/2014 before the Munsiff Court, Kodungalloor on 7.7.2014. The advocate commissioner appointed in the above civil suit had inspected the property on 7.7.2014 and filed Annexure-3 report dated 18.7.2014. It is pointed out that Annexure-3 report itself would clearly show that the time of inspection of the advocate commissioner was at 5:30 pm on 7.7.2014 and it is submitted that Annexure-3 report would show that the advocate commissioner had inspected the property in question and had also inspected the boundary in question as well as the disputed pathway in the presence of the 1[st] petitioner, ::3:: ## **B.A.No.7753 Of 2014** her husband as well as the defacto complainant who are parties to the civil suit. The defacto complainant herein had filed Annexure-4 private criminal complaint in the instant crime only as late as 5.8.2014 in order to pressurise the petitioners to withdraw the civil suit, it is submitted. Sri.N.L.Bitto, learned counsel for the petitioners, would submit that the allegation in Annexure-A4 private criminal complaint is that the alleged incident has occurred on 7.7.2014 at 5:00 pm and that this is highly improbubalised and belied by the indisputable fact that the advocate commissioner had inspected the property in question at 5:30 pm on 7.7.2014 as evident from Annexure-3 commission report. The allegation in Annexure-4 private criminal complaint dated 5.8.2014 that the fencing on the northern boundary of the property in question was destroyed by the petitioners at 5:00 pm on 7.7.2014 is absolutely false, and if that were so, the advocate commissioner who conducted the inspection of the property on the same day after 5:30 pm could have certainly noted such factual aspects. Further, the learned counsel for the petitioners would submit that if the defacto complainant is injured as claimed by her in Annexure-4 due to the alleged incident which is said to have taken place on 7.7.2014 at 5:00 pm then such aspects would also have been brought to the notice of the ::4:: ## **B.A.No.7753 Of 2014** advocate commissioner who conducted the inspection later on the same day and moreover her version that she was hospitalised after the alleged incident is also belied inasmuch as she was present when the advocate commissioner inspected the property on the same day at 5:30 pm etc. 5. The learned Public Prosecutor submits that the offence under Section 308 IPC has been deleted but, that the offence under Section 341 IPC has been added and that though the offence under Section 3(i)(x) of the Act, 1989 has been deleted, but, the offence under Section 3(i)(xi) of Act 1989 has been included. Accordingly, it is submitted by the learned Public Prosecutor that there is a statutory inhibition in the consideration of plea of anticipatory bail in view of the embargo under Section 18 of the Act of 1989. 6. Sri.N.L.Bitto, learned counsel for the petitioners, would submit that this Court may direct the petitioners to formally appear and surrender before the jurisdictional Magistrate concerned and in which event Magistrate may be directed to consider the bail application on the same day and to grant them bail in accordance with the principles laid down by this Court in the case _**Shanu v. State of Kerala**_ (2000(3) KLT 452). Sri.N.L.Bitto, learned counsel for the petitioners, would submit ::5:: ## **B.A.No.7753 Of 2014** that even a prima facie assessment of the facts and circumstances narrated above based on indisputable documents like the proceedings and report of the advocate commissioner appointed by the court below would show that there is no substance in the allegations raised against the petitioners by the defacto complainant and it would clearly show that it is a false case foisted in order to wriggle out the liability in the civil dispute. 7. It is to be noted that this Court in the case _**Shanu v. State of Kerala**_ (2000(3) KLT 452) has held that though the offences punishable under the provisions of the S.C. & S.T. (Prevention of Atrocities) Act are made triable by the Special Court presided over by a Sessions Judge, considering the peculiar nature and circumstances under which those cases are registered and tried with regard to atrocities perpetrated against the downtrodden and weaker sections of the society, the offences punishable under the 15 sub-sections under sub-s. (1) of S. 3 of the Act are punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine. The 15 offences enumerated under sub-s. (1) of S. 3 of the S.C. and S.T. (Prevention of Atrocities) Act are punishable with maximum imprisonment of five years and with ::6:: ## **B.A.No.7753 Of 2014** fine and that applying the principles laid down in the decisions of this Court, it it clear that the jurisdictional Magistrate concerned has got jurisdiction to grant bail to the persons accused of the offence punishable under any of the sub-cls. (i) to (xv) of sub-s. (1) of S. 3 of the Act. Paragraph 10 & 11 of the above said case reads as follows: _“10. As already noted, the 15 offences enumerated under sub-s. (1) of S. 3 of the S.C. and S.T. (Prevention of Atrocities) Act are punishable with maximum imprisonment of five years and with fine, though the offences are triable by the Special Court, which is the Sessions Court. Therefore, applying the principles enunciated in the decisions of this Court referred to above, it is clear that the J.F.C.M.'s Court has got jurisdiction to grant bail to the persons accused of the offence punishable under any of the sub-cls. (i) to (xv) of sub-s. (1) of S. 3 of the Act._ _11. In this case, the offence alleged against the petitioners is punishable under S.324 of I.P.C. and S. 3(1) (x) of the S.C. and S.T. (Prevention of Atrocities) Act. Therefore, it follows that the J.F.C.M.'s Court has got jurisdiction to grant bail to the accused under S. 437(1) of the Cr.P.C. irrespective of the fact that the case is triable by the Special Court, which is the Court of Session. Hence the learned Magistrate is directed to enlarge the petitioners on bail on appropriate conditions he deems necessary, in case the petitioners surrendered or arrested and produced before the court and moved for bail”._ _8._ After hearing the submissions of the counsel for the petitioners and learned Public Prosecutor and on making an evaluation of the totality of the facts and circumstances of the ::7:: ## **B.A.No.7753 Of 2014** case and taking into account the embargo created under Section 18 of the Act 1989, this Court is inclined to adopt the course taken in _**Shanu's case**_ (cited supra). Accordingly, it is ordered that in the event of the petitioners formally appear and surrender before the jurisdictional Magistrate and applying bail applications, then the jurisdictional Magistrate concerned shall consider the application on the same day itself and dispose of the application in the light of the principles laid down by this Court in _**Shanu's case**_ (cited supra) and also in the light of the observations made herein above and to grant bail to the petitioners. The bail application stands disposed of accordingly. **ALEXANDER THOMAS, Judge.** bkn/-