Shanavas @ Aluva v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **TUESDAY, THE 24[TH] DAY OF JANUARY 2023 / 4TH MAGHA, 1944** **CRL.A NO. 9 OF 2023** **AGAINST THE ORDER IN CRMP 214/2022 OF SPECIAL COURTOFFENCES UNDER SC/ST (POA) ACT,1989,KOTTARAKKARA APPELLANTS/ACCUSED NOS.3,6,7:** 1 SHANAVAS @ ALUVA,AGED 37 YEARS, S/O IBRAHIM KUTTY, CHERUVILA PUTHEN VEEDU, MUSAVARIKUNNU, PUNALUR P.O, PUNALUR, KOLLAM DISTRICT-, PIN – 691305. 2 JESIL, AGED 20 YEARS, S/O DILEEP, FAIZAL MANZIL, MANTHRAM MUKKU, PUNALUR P.O, PUNALUR, KOLLAM DISTRICT-, PIN – 691305. 3 MUHAMMED ANZAL,AGED 18 YEARS, S/O SHEREEF, MUHAMMED MANZIL, AMAKULAM, NETHAJI WARD, PUNALUR P.O, KOLLAM DISTRICT-, PIN – 691305. BY ADV S.SREEJITH (S-3453) ## **RESPONDENTS/STAFF & DEFACTO COMPLAINATN:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031. 2 SUMI, AGED 45 YEARS, W/O GANAPATHI, CHERUVILA VEEDU, ALUVA COLONY, MUSAVARIKUNNU, PUNALUR P.O, KOLLAM DISTRICT, PIN – 691305. PUBLIC PROSECUTOR SRI.G.SUDHEER THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12.01.2023, THE COURT ON 24.01.2023 DELIVERED THE FOLLOWING: Crl.Appeal No.9/2023 2 ## _**A. BADHARUDEEN, J.**_ ================================ _Crl.Appeal No.9 of 2023_ ================================ _Dated this the 24[th] day of January, 2023_ ## _**O R D E R**_ This appeal has been filed under Section 14A(2) of the Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the `SC/ST Act' for convenience), challenging order in Crl.M.P.No.214/2022 on the files of the Special Court for SC/ST (PoA) Act Cases, Kottarakkara. The appellants are the petitioners in the above petition as well as accused 3, 6 and 7 in Crime No.2002/2022 of Punalur Police Station, whereby the accused were alleged to have committed offences under Sections 143, 144, 147, 148, 452, 324, 326, 308, 294(b), 506(ii), 354, r/w 149 of Indian Penal Code along with Section 27 of Arms Act, Section 3(2)(v) of SC/ST (PoA) Act. Crl.Appeal No.9/2023 3 2. Heard the learned counsel for the appellants and the learned Public Prosecutor. Though notice has been served upon the defacto complainant, he did not appear. 3. The prosecution case is that at 11 p.m on 13.11.2022, the accused persons, who do not belong to Scheduled Caste or Scheduled Tribe community, in furtherance of their common object, formed into unlawful assembly, trespassed upon the house of the defacto complainant, who is a member of Scheduled Caste community, situated in Muzavarikkunnu muri, Aluva colony, armed with deadly weapons to do away the husband of the defacto complainant and in turn they caused cut injuries including fracture to the brother of the defacto complainant on various parts of his body with intention to do away him. Further the 1[st] accused assaulted the defacto complainant being member of the unlawful assembly. It is on this premise the prosecution alleges commission of the above offences by the accused. Crl.Appeal No.9/2023 4 4. The learned counsel for the appellants would submit that the 1[st] appellant has been in custody from 22.11.2022 and appellants 2 and 3 have been in custody from 24.11.2022. According to the learned counsel for the appellants, the appellants are innocent and they are liable to be released on bail since the investigation achieved much progress and therefore, their further custody for the purpose of investigation is not necessary. 5. Whereas release of the appellants on bail is zealously opposed by the learned Public Prosecutor highlighting the seriousness of the offences alleged to have been committed as well as highlighting criminal antecedents of the 3[rd] accused/1[st] appellant in 21 cases of serious nature. He also pointed out that the 1[st] appellant is a habitual offender and if he is released on bail, he would involve in further crimes. It is further submitted that the 1[st] appellant is an antisocial person and there was proposal to put him under preventive custody under Kerala Antisocial Activities Crl.Appeal No.9/2023 5 Prevention Act (KAAPA). In so far as the other appellants are concerned, no antecedents have been reported. 6. I have perused the case diary along with the report of the learned Public Prosecutor. 7. On perusal of the order impugned it could be gathered that the Special Court denied bail to the appellants mainly on the ground that if they would be released on bail, they would influence the witnesses including the defacto complainant and they would destroy the evidence of this case. 8. In the case on hand as far as the 1[st] appellant/3[rd] accused is concerned, he had involvement in the following crimes: (1) Punalur PS Cr 2293/2015 U/s 143, 147, 148, 341, 294(b), 323, 324 r/w 149 IPC, (2) Cr: 2307/2015 U/s 143, 144, 147, 148, 452, 294(b), 324, 34 IPC, **==> picture [252 x 14] intentionally omitted <==** Crl.Appeal No.9/2023 6 (4) Cr.1467/2016 U/s 294(b), 341, 323, 324 IPC, (5) Cr.1505/2016 U/s 341, 323, 506(ii), 34 IPC, Sec. 5 r/w 27 of Arms Act, (6) Cr.1526/2016 U/s 427, 324, 308, 34 IPC, Sec 5 r/w 27(1) of Arms Act, (7) Cr.1680/2017 U/s 143, 147, 148, 308, 294(b), 341, 324 IPC, (8) Cr.2012/2017 U/s 341, 324, 294(b), 323, 308, 34 IPC, (9) Cr.2374/2017 U/s 341, 394, 34 1PC, (10)Cr.446/2018 U/s 341, 323. 294(b), 324, 308, 34 IPC, (11)Cr.2501/2018 U/s 294(b), 323, 324, 308, 34 IPC (12)Cr.2502/2018 U/s 341, 294(b), 323, 324, 308, 34 IPC (13) Cr.1596/2019 U/s 143, 147, 148, 341, 323, 324, 392, 294(b)IPC & Sec.27 of Arms Act (14) Cr.405/2020 U/s 294(b), 506(i), 509, 354(A) IPC Sec.11 1/w 12 of POCSO Act (15) Cr.2049/2020 U/s 294(b), 323, 324, 506(ii), 354 IPC, 75 of JJ Act, Sec 27(1) of Arms Act, (16) Cr. 2203/20 U/s 353, 34 IPC & Sec 3,4 of PDPP Act (17) Cr.398/2020 U/s 341, 294(b), 353, 506 IPC Crl.Appeal No.9/2023 7 (18) Cr.1117/2021 U/s 294(b), 323, 427, 34 IPC Sec.3(1)(s), 3(2) (va) of SC/ST (POA) Act (19) Thenmala PS Cr.183/2021 U/s 20(B)(ii)(b) of NDPS Act, 34 IPC (20) Punalur PS Cr. 2003/2022 U/s 143, 147, 148, 452, 294(b), 506(ii), 427, 149 IPC, Sec.27 of Arms Act (21) Punalur PS Cr.2004/2022 U/s 143, 147, 148, 452, 294(b), 506(1), 427, 149 IPC, Sec.27 of Arms Act. 9. It is noticed that starting from 2015 onwards he has been involving in different crimes almost all years upto 2021. On getting released in one crime, he had involved in another crime. This is the 22[nd] crime alleged to be committed by the 3[rd] accused. Since the 3[rd ] accused has been repeatedly involving in crimes of various nature, if he will be released on bail, he will involve in other crimes. Therefore, I am not inclined to release the 3[rd] accused, a habitual offender, on bail and accordingly the dismissal of the bail plea at the instance of the 1[st] appellant/3[rd] accused by Crl.Appeal No.9/2023 8 the Special Court stands confirmed and the appeal at his instance stands dismissed. 10. As far as the other accused are concerned, no criminal antecedents were reported in relation to them and they have been in custody from 24.11.2022. The case diary would go to show that the investigation achieved much progress and therefore, their further custody is not warranted. Therefore, they can be enlarged on bail on conditions. Accordingly, the order impugned, inasmuch as accused Nos.6 and 7/appellants 2 and 3 are concerned, stands set aside and accused Nos.6 and 7 – appellants 2 and 3 shall be released on bail, on the following conditions. i. Accused Nos.6 and 7/appellants 2 and 3 shall be released on bail on their executing bond for Rs.50,000/- (Rupees Fifty Thousand Only) each with two solvent sureties, each for the like amount to the satisfaction of the jurisdictional court concerned. ii. Accused Nos.6 and 7/appellants 2 and 3 shall not Crl.Appeal No.9/2023 9 intimidate the witnesses or tamper with evidence. They shall co- operate with the investigation and shall be available for trial. iii. Accused Nos.6 and 7/appellants 2 and 3 shall not leave the jurisdiction of the Court, without prior permission of the jurisdictional court. iv. Accused Nos.6 and 7/appellants 2 and 3 shall surrender their passports, if any, within 7 days from the date of their release, before the trial court. If they have no passports, they shall file an affidavit in this regard on the date of execution of the bond or within 3 days thereafter. v. Accused Nos.6 and 7/appellants 2 and 3 shall not involve in any other offence during the currency of bail and any such event, if reported to came to the notice of this Court, the same shall be a reason to cancel the bail hereby granted. _Sd/-_ ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_