Shameer A and Najeem A v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE K. BABU`** ``` TUESDAY, THE 2[ND] DAY OF APRIL 2024 / 13TH CHAITHRA, 1946 ``` ``` CRL.A NO. 560 OF 2024 ``` ``` CRIME NO.310/2024 OF Kadakkal Police Station, Kollam ``` ``` AGAINST THE ORDER/JUDGMENT DATED 19.03.2024 IN CRMP NO.77 OF 2024 OF SPECIAL COURT- OFFENCES UNDER SC/ST (POA) ACT,1989,KOTTARAKKARA APPELLANTS: ``` - **`1 SHAMEER AGED 29 YEARS S/O SHERIF, THADATHARIKATHU PUTHEN VEEDU, KONDODY, KUMMIL P.O., KUMMIL VILLGE, KOTTARAKARA TALUK, KOLLM DISTRICT., PIN - 691507`** - **`2 NAJEEM. A AGED 36 YEARS`** - **`S/O. ASHRAF, VARUTHODIYIL VEEDU, KONDODY, KUMMIL P.O., KUMMIL VILLAGE, KOTTARAKARA TALUK, KOLLAM DISTRICT, PIN - 691507`** - **`BY ADVS. K.V.ANIL KUMAR RADHIKA S.ANIL SWAPNA VIJAYAN`** ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031`** - **`2 DEPUTY SUPERINTENDENT OF POLICE, KOTTARAKKARA OFFICE OF THE DY.S.P., KOTTARAKKARA, KOLLAM DISTRICT., PIN - 691506`** - **`3 GOPIKA AGED 28 YEARS D/O. SAJIKUMAR, NARICHIPPARA PUTHEN VEEDU, KONDODY, KUMMIL P.O., KUMMIL VILLAGE, KOTTARAKARA TALUK, KOLLAM DISTRICT, PIN - 691536`** - **`4 GOPAKUMAR AGED 30 YEARS S/O SAJIKUMAR, NARICHIPPARA PUTHEN VEEDU, KONDODY, KUMMIL P.O., KUMMIL VILLAGE, KOTTARAKARA TALUK, KOLLAM DISTRICT, PIN - 691536`** ## **`SRI.G.SUDHEER P P`** ``` CRL.A NO. 560 OF 2024 ``` ``` 2 ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 02.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 560 OF 2024 ``` ``` 3 ``` ## . **K.BABU, J** -------------------------------------- ## Crl.A.No.560 of 2024 --------------------------------------- ## **Dated this the 2[nd] day of April, 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 19.03.2024 in Crl.M.P No.77/2024 passed by the Special Court for Scheduled caste/Scheduled Tribe(POA)Act cases, Kottarakkara. 2. The appellants are accused Nos.4 and 5 respectively in Crime No.310/2024 of Kadakkal Police Station. They are alleged to have committed offences punishable under Sections 143, 147, 148, 294(b), 323, 324, 354 and 149 of the Indian Penal Code and Sections 3(1)(r), 3(1)(s) and 3(2) (va) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (Amendment Act 2015) (for short ‘the Act’). ## The prosecution case: 3. On 01.03.2024, at about 4.00 p.m., the appellants and the other accused abused the defacto complainant in filthy language. They also insulted her by calling her caste name. She ``` CRL.A NO. 560 OF 2024 ``` ``` 4 ``` ran to her residence. She came to know that the appellants and the other accused assaulted her brother. The accused again abused her in filthy language. Accused No.1 voluntarily caused hurt to her using a stone. Accused No.2 caught hold of her abdomen. Accused No.3 caught hold of her right hand and caused hurt to her brother with a helmet. The appellants tore the cloth of the complainant and assaulted her mother and husband. 4. Notice was served on the victim. She 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 political rivalry is the reason for the registration of the FIR. It is submitted that the defacto complainant is a member of a trade union affiliated to the ruling party and the appellants are supporters of a leading opposition party. The specific case of the appellants is that political enmity resulted in the registration of a false case against them. The learned counsel further submitted that the brother of the defacto complainant and ten others voluntarily caused grievous hurt to appellant No.2 and his ``` CRL.A NO. 560 OF 2024 ``` ``` 5 ``` mother. The learned counsel relied on Annexure-C Out Patient Card in support of his contentions. Annexure-C Certificate would show that on 01.03.2024 appellant No.2 obtained treatment from Taluk Hospital, Kadakkal. Annexure-C reveals that appellant No.2 sustained a series of injuries. The doctor who treated appellant No.2 has noted that appellant No.2 was assaulted by a group of ten people on 01.03.2024. 7. The submission of the learned counsel for the appellants is that the present crime has been registered as a counterblast to the incident that happened on 01.03.2024, in which appellant No.2 and his mother sustained injuries. 8. The learned Public Prosecutor opposed the bail plea on the ground that there are materials to attract the offences alleged. 9. The case diary has been made available. I have gone through the first information statement and the related documents. 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 ``` CRL.A NO. 560 OF 2024 ``` ``` 6 ``` 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 case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide. This Court in **xxxx v. State of Kerala 2022 KHC 1001** , while considering the application of the bar under Sections 18 and 18-A of the Act held thus: “Before analysing the question as to whether, a prima facie case is made out in this matter, it is necessary to address the tendency of false implication of innocent persons, who do not belong to Scheduled Caste or Scheduled Tribe community, by misusing the provisions of the SC/ST (POA) Act. There is no quarrel that stringent provisions are incorporated in the SC/ST (POA) Act to arrest the menace of atrocities against members of the Scheduled Caste and Scheduled Tribes community by exploiting their backwardness. Since the Parliament found that the provisions of earlier SC/ST (POA) Act were not sufficient to meet the ends of justice, the Act was amended. After the amendment of the SC/ST (POA) Act, more stringent provisions have been incorporated in SC/ST (POA) Act with mandatory right of hearing to the defacto complainant at every stages of the court proceedings, as provided under Section 15A(3) of the SCT/ST (POA) Act. Thus, atrocities against Scheduled Caste or Scheduled Tribe community, in fact, is intended to be curtailed by the stringent provisions of SC/ST (POA) Act. Therefore, when genuine complaint/complaints at the instance of the Schedule Caste or Scheduled Tribe members, which would attract offence/offences incorporated under the SC/ST (POA) Act, if made, the same shall be viewed seriously and appropriate ``` CRL.A NO. 560 OF 2024 ``` ``` 7 ``` legal action shall go on, to attend the grievances of the complaint/complaints. At the same time, the courts should have a duty to rule out the possibilities of false implication of innocent persons as accused, with a view to achieve ulterior motives of the complaints, with threat of arrest and detention of the accused in custody, because of the stringent provisions in the SC/ST (POA) Act in the matter of grant of anticipatory bail. It is shocking, rather a mind blowing fact that many innocent persons are victims of false implication under the SC/ST (POA) Act. Therefore, it is the need of the hour for the courts to segregate the grain from the chaff by analysing the genesis of the case, the antecedents prior to registration of the crime, with reference to existence of animosity between the complainant and the accused, with particular attention, vis-avis previous disputes/cases/ complaints, etc. while considering the question of prima facie case, when considering plea for pre-arrest bail. In cases, where there are materials to show that the accused and the complainant are in inimical terms, and there are previous litigation between them or their men or representatives and in retaliation or as a sequel to the same, the allegations in the complaint constituting offence/offences under the SC/ST (POA) Act are made, the same may be the reasons to doubt the case prima facie. The instances are not exhaustive. Therefore, evaluation of the above facts would help the court while addressing the question of prima facie case, at the pre-arrest bail stage. On evaluation of the genesis of the case within the ambit of the above pari materia, if the court finds something to see the possibility of false implication, in such cases, the court could very well hold that prima facie, the prosecution allegations could not be believed for the purpose of denying anticipatory bail, after leaving the question as to commission of offence/offences for a detailed and fair investigation by the Investigating Officer. Indubitably, such a course of action is necessary to rule out the possibility of false implication” 12. The Out Patient Card relied on by the appellants would show that appellant No.2 and his mother sustained injuries in an incident that allegedly took place on 01.03.2024. There are also materials to show that the parties are living in inimical terms due to political rivalry. The defacto complainant is a member of a ``` CRL.A NO. 560 OF 2024 ``` ``` 8 ``` trade union affiliated to the ruling party. 13. I am of the considered view that the bar under Section 18 and 18-A of the Act is not applicable to the facts of the case. In view of the above circumstances, the prosecution has no case that any custodial interrogation of the appellants is required. The prosecution also has no case that the weapon allegedly used by the appellants is to be recovered. 14. 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 ``` CRL.A NO. 560 OF 2024 ``` ``` 9 ``` 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 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.” ## 15. 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). 16. In Sushila Aggarwal , the Constitution Bench of the Apex Court, following the decision in Gurbaksh Singh Sibbia , held ``` CRL.A NO. 560 OF 2024 ``` ``` 10 ``` 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. 17. Having considered the entire circumstances on the touchstone of the principles discussed above, I am of the view that the appellants are entitled to anticipatory bail. In the result, - (i) The Criminal Appeal is allowed. - (ii) The order dated 19.03.2024 dismissing Crl.M.P No.77 of 2024 in Crime No.310/2024 of Kadakkal Police Station stands set aside. - (iii) The appellants shall appear before the Investigating Officer on 11.04.2024 between - 10.00 AM and 11.00 AM for interrogation. - (iv) The Investigating Officer is directed to release the appellants on bail, in the event of their arrest, on their executing bond for Rs.1,00,000/- (Rupees ``` CRL.A NO. 560 OF 2024 ``` ``` 11 ``` One Lakh only) each with two solvent sureties each for the like sum. v) The appellants shall appear before the Investigating Officer on all Mondays between 10.00 AM and 11.00 AM for a period of three months or till the final report is filed, whichever is earlier. vi) The appellants shall not influence the witnesses or tamper with the evidence. Sd/- K. BABU JUDGE saap ``` CRL.A NO. 560 OF 2024 ``` ``` 12 ``` ## **`APPENDIX OF CRL.A 560/2024`** ``` PETITIONER ANNEXURES Annexure-AA TRUE COPY OF THE FIR IN CRIME NO. 310 / 2024 OF KADAKKAL POLICE STATION DATED 03.03.2024. Annexure-BA TRUE COPY OF THE MARRIAGE CERTIFICATE DATED 18.11.2019 ISSUED BY THE MARRIAGE OFFICER, KADAKKAL Annexure-CA TRUE COPY OF THE TREATMENT RECORD DATED 01.03.2024 ISSUED BY THE TALUK HOSPITAL, KADAKKAL ```