Shahul Hameed and Subaida Beevi v. The Station House Officer Neyyar Dam Police Station, Thiruvananthapuram; The Deputy Superintendent of Police, Nedumangad; State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 09TH DAY OF DECEMBER 2019 / 18TH AGRAHAYANA, 1941** ## **CRL.A.No.1257 OF 2019** **AGAINST THE ORDER/JUDGMENT IN CRMC 2446/2019 DATED 18-10-2019 OF SESSIONS COURT, TRIVANDRUM** ## **CRIME NO.443/2019 OF Neyyardam Police Station , Thiruvananthapuram** ## **APPELLANT/S:** **1 SHAHUL HAMEED, AGED 72 YEARS S/O. MEERAN PILLA, MUDIYANKAVU VAYALARIKKATHU VEEDU, KOTTOOR, MANNOOKKARA VILLAGE, KOTTOOR P.O, KATTAKKADA TALUK, THIRUVANANTHAPURAM 695 572** **2 SUBAIDA BEEVI, AGED 55 YEARS W/O. SHAHUL HAMEED, MUDIYANKAVU VAYALARIKKATHU VEEDU, KOTTOOR, MANNOOKKARA VILLAGE, KOTTOOR P.O, KATTAKKADA TALUK, THIRUVANANTHAPURAM 695 572** **BY ADVS. SRI.C.A.CHACKO SMT.C.M.CHARISMA** ## **RESPONDENT/S:** - **1 THE STATION HOUSE OFFICER NEYYAR DAM POLICE STATION, THIRUVANANTHAPURAM 695 572** - **2 THE DEPUTY SUPERINTENDENT OF POLICE, NEDUMANGAD , OFFICE OF DEPUTY SUPERINTENDENT OF POLICE, THIRUVANANTHAPURAM 695 541** - **3 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031** ## **OTHER PRESENT:** **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 09.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ::2:: **CRL.A.No.1257 OF 2019** ## **ALEXANDER THOMAS, J** . ----------------------------Crl.A.No.1257 Of 2019 --------------------------------Dated this the 9[th] day of December, 2019. ## **J U D G M E N T** The appellants herein have been arrayed as accused Nos. 1 & 2 among the 2 accused in the instant Crime no.443/2019 of Neyyar Dam Police Station, for offences punishable under Secs.294(b) & 34 of the I.P.C., Secs.3(1)(r) & 3(1)(s) of the SC/ST (POA) Act as amended and Sec.119(a) of the Kerala Police Act. The said Crime has been so registered on the basis of the FI statement given by the lady de facto complainant in this case on 5.7.2019 at about 12:50 noon in respect of the alleged incidents happened as early as on 26.6.2018 at 8:45 a.m. The plea of the appellants has now been rejected by the Sessions Court as per order dated 18.10.2019 in Crl.M.C.No.2446/2019. Being aggrieved thereby, the appellants have preferred the instant Criminal Appeal under Sec.14A of the abovesaid Act. 2. The abovesaid anticipatory bail plea has been rejected by the Sessions Court on the ground that since the allegations also involve offences as per SC/ST(POA) Act as amended, the bar under ::3:: ## **CRL.A.No.1257 OF 2019** Secs.18 & 18A would apply and hence the court is denuded of jurisdiction to consider the plea for anticipatory bail under Sec.438 of the Cr.P.C. The incidents alleged had happened on 26.6.2018. Whereas the FI statement and the crime alleged to have lodged and registered as late as on 5.7.2019 at about 12:50 noon. 3. The prosecution case in short is that the lady de facto complainant, aged 38 years, belongs to Scheduled Caste community and she is residing in the immediate neighbourhood of the appellants herein and that the 1[st] appellant herein is the husband of the 2[nd] appellant herein. Further that on 26.6.2018 at about 8:45 a.m. when the de facto complainant was using the pathway, she had seen the 1[st] appellant passing urine in the said public pathway and he was also showing some gesticulations and when the de facto complainant told the 1[st] appellant that the public pathway is not the place of passing urine and thereupon he had abused her in filthy language and abused by calling her caste name. That thereupon the 2[nd] appellant had also come therein and picked up quarrel with the lady de facto complainant and called her by her caste name, etc. 4. The learned counsel for the appellants would point out that the abovesaid allegations are false and fabricated and the truth ::4:: ## **CRL.A.No.1257 OF 2019** of the matter is otherwise. In that regard, it is pointed out that the de facto complainant and her sons are frequently creating nuisance and harassment to the appellants. The appellants are elderly aged people and that the 1[st] appellant is aged more than 70 years and 2[nd] appellant, who is the wife of the 1[st] appellant, is aged more than 55 years and that on one occasion, Sujith, who is the son of the de facto complainant, had trespassed into the house of the appellants and tried to molest the 2[nd] appellant and the 2[nd] appellant filed a complaint before the 1[st] respondent, but no crime was registered in that regard. Again the de facto complaint and her two sons continuously harassed the appellants and on 22.7.2018, the 2[nd] appellant made a complaint before the 1[st] respondent and since no action was forthcoming thereon she has filed a complaint before the Kerala State Women's Commission on 17.8.2018 and since no action is forthcoming thereon, the 1[st] appellant has filed a complaint before the District Police Chief, Thiruvananthapuram, on 31.3.2019 and since the lady de facto complainant and her sons apprehended that they might get into problems with law enforcement machinery, the lady has now raised the false allegations in respect of the present crime. Further it is pointed out that the long delay of 1 year and 2 weeks in lodging of the crime ::5:: ## **CRL.A.No.1257 OF 2019** has not been promptly explained by the prosecution and therefore it would fatally vitiate the impugned criminal proceedings as it affect the very believability and credibility of the prosecution version. The learned counsel for the appellants has relied on various decisions as in _**Thulia Kali v. State of Tamil Nadu**_ (AIR 1973 SC 501 ), _**State of Andhra Pradesh v. M.Madhusudhan Rao**_ [(2008) 15 SCC 582] etc., which have dealt with legal principles which regulate the aspects regarding the delay in lodging of crime wherein it has been held that the delay in lodging the FIR, more often than not results in embellishment and exaggeration, which is a creation of an afterthought and a delayed report, not only gets bereft of the advantage of spontaneity, but the danger of the introduction of a coloured version, an exaggerated account of incident or a concocted story as a result of deliberations and consultations, also creeps in, thus casting a very serious doubt on the veracity of the prosecution case. Therefore, it has been held that it is highly essential that the delay in lodging the FIR should be duly and satisfactorily explained by the prosecution. Resultantly, when the substratum of the prosecution case itself is found to be unreliable, prosecution case has to be rejected in its entirety, etc. In the light of these aspects, the learned counsel for ::6:: ## **CRL.A.No.1257 OF 2019** the appellants would point out that in view of the mala fide nature of the allegations and in view of the long and unexplained delay in lodging of the Crime no prima facie substance for the offence under the SC/ST (POA) Act has been disclosed in this case and the bar under Secs.18 & 18A will not apply in this case and this Court may grant anticipatory bail to the appellants herein. 5. The appellants have also submitted that there are lot of disputes pending between the parties and it is only on account of their complaint before the Police authorities, the lady de facto complainant has now filed the complaint after the long delay of 1 year and 2 weeks and the delay itself would indicate that it is product of exaggeration and embellishment, etc. 6.` The learned Prosecutor has opposed the plea for grant of anticipatory bail and would submit that the statutory bar would apply. 7. This Court has held in _**Jishnu v. State of Kerala**_ , [2019 (1) KLT 432], that if a person is able to show that prima facie, he has not committed any atrocity against the member of a Scheduled Caste and Scheduled Tribe and that the allegation was mala fide and prima facie false, etc., then at least for the purpose of anticipatory bail, it can be held that no case was made out in which ::7:: **CRL.A.No.1257 OF 2019** the statutory bar will not apply. It will be profitable to refer to paras 6 & 8 of the judgment of this Court in _**Jishnu's**_ case (supra), which read as follows: “ _6. If a person is able to show that prima facie, he has not committed any atrocity against the member of a Scheduled Caste and Scheduled Tribe and that the allegation was mala fide and prima facie false and that no case was made out, there is no justification in holding that the bar under S.18 would apply in those cases. Of course, the perpetrators of atrocities against members of the SC & ST cannot be and should not be granted anticipatory bail as there is every likelihood that the accused would terrorise them. However, the Apex Court has consistently held that innocent persons against whom there was no prima facie case for having violated the provisions of Act 33 of 1989 cannot be subjected to the same treatment as the persons who are prima facie perpetrators of the crime._ ## _xxx xxx xxx_ _8. As held by the Apex Court mere unilateral allegation by any individual belonging to any caste, when such allegation is clearly motivated and false, cannot be accepted as gospel truth to deprive a person of his liberty without an independent scrutiny. The exclusion of provision of anticipatory bail cannot possibly be treated as applicable when no case is made out or allegations are patently false or ill motivated. The protection of innocents against abuse of law is part of inherent jurisdiction of court being part of access to justice and to protect individual liberty against any oppressive action. At the same time, S.18 of the Act would apply in all its vigor in deserving cases where on evaluation of the prosecution allegation, the court finds the case to be prima facie genuine warranting custodial interrogation and pre-trial arrest and detention.”_ After hearing both sides and on an evaluation of the facts and circumstances of this case, this Court is of the view that the prosecution has not been able to even remotely explain the long and unexplained delay of about 1 year and 2 weeks in the lodging of the FI statement and registration of the crime in this case. Accordingly, this Court is inclined to consider the anticipatory bail ::8:: ## **CRL.A.No.1257 OF 2019** plea of the appellants and that the dictum laid down in the case in _**Jishnu v. State of Kerala**_ , [2019 (1) KLT 432] could be applied in this case and therefore the statutory bar under Secs.18 & 18A applied in this case and the anticipatory bail plea could be considered on merits. Accordingly, considering the long delay as well as the other facts and circumstances, this Court is inclined hold that the appellants have made out a strong case that custodial interrogation of the appellants is not necessary for the smooth and fair investigation in this case. It is made clear that the abovesaid observations made hereinabove are only for the limited purpose of considering the anticipatory bail plea of the appellants and if any such issues are raised in other appropriate proceedings, the same will have to be decided untrammelled and uninfluenced by any of the observations made hereinabove. 8. Accordingly, it is ordered that in the event of the appellants being arrested in connection with Crime No.443/2019 of Neyyar Dam Police Station, then they shall be released on bail on their executing a bond for Rs.40,000/- (Rupees Forty Thousand only) and on their separately furnishing 2 solvent sureties for the like sum each, both to the satisfaction of the Investigating Officer ::9:: ## **CRL.A.No.1257 OF 2019** concerned. However, the above order shall be subject to the following conditions: - _(i) The appellants shall fully co-operate with the investigation._ - _(ii) The appellants shall report before the Investigating Officer as and when required in that connection._ - _(iii) The appellants shall not involve in any criminal offences of similar nature._ - _(iv) The appellants shall not influence the witnesses or shall not tamper or attempt to tamper evidence in any manner, whatsoever._ - _(vi) In case of violation of any of the above conditions, the jurisdictional Court concerned will stand hereby empowered to consider the application for cancellation of bail, if required, and pass appropriate orders in accordance with the law._ With these observations and directions, the above Bail Application stands disposed of. **Sd/ALEXANDER THOMAS, Judge.** bkn/-