Sivadasan v. The Station House Officer, Kunnamangalam Police Station, Kozhikode District; The State of Kerala; Addl. R3 Viji Muprammal

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941** ## **CRL.A.No.1349 OF 2019** **AGAINST THE ORDER/JUDGMENT IN CRMC 1641/2019 DATED 15-112019 OF DISTRICT COURT & SESSIONS COURT,KOZHIKODE** **CRIME NO.710/2019 OF Kunnamangalam Police Station , Kozhikode** ## **APPELLANT:** **SIVADASAN, AGED 61 YEARS S/O.GOVINDAN NAIR, PUTHIYAPARAMBATH HOUSE, POST MIE KUNNAMANGALAM, KOZHIKODE DISTRICT.** **BY ADV. SRI.SUNNY MATHEW** ## **RESPONDENTS:** - **1 THE STATION HOUSE OFFICER, KUNNAMANGALAM POLICE STATION, KOZHIKODE DISTRICT 673570.** - **2 THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682031.** - **3 ADDL.R3. VIJI MUPRAMMAL, AGED 33 YEARS, W/O. SHAJI, MUPRAMMAL HOUSE, KUNNAMANGALAM, KOZHIKODE.** **(ADDITIONAL R3 IS IMPLEADED AS PER ORDER DATED 29/11/2019 IN CRL.M.A. 2/2019)** **R1-2 BY GOVERNMENT PLEADER R3 BY ADV. B.PRAMOD** ## **OTHER PRESENT:** **T.R.RANJTH SR. PP** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 19.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A. No. 1349 of 2019 ..2.. ## **Criminal Appeal No.1349 of 2019 --------------------------------------** ## **JUDGMENT** This appeal is directed against an order in terms of which an application preferred by the appellant for anticipatory bail has been rejected by the Special Court for the trial of offences punishable under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the Act). 2. The appellant is the sole accused in Crime No. 710 of 2019 of Kunnamangalam Police Station registered for offences punishable under Sections 354A(i), 354A(ii), 354A(iv) and 506(i) of the Indian Penal Code and Sections 3(1)(s), 3(1) (w) and 3(1)(i) of the Act. The de facto complainant in the case was the President of Kunnamangalam Block Panchayat. The appellant was the Vice President of the said Block panchayat. The accusation against the appellant in the case is that on 01.08.2019, while the de facto complainant was attending an official meeting along with the accused, the accused had touched her body with sexual intent. It is also alleged that on the said day, the accused has made a few sexually-coloured remarks to the de facto complainant. It is also alleged that Crl.A. No. 1349 of 2019 ..3.. later on 24.09.2019, when the de facto complainant was leaving the venue of a meeting attended by her as also the accused, the accused has abused the de facto complainant by calling her caste name. It is also alleged that on several occasions thereafter also, the accused has abused the de facto complainant by calling her caste name. The court below rejected the application holding that the allegations against the accused would make out the offences alleged and therefore the application is not maintainable. 3. Heard the learned counsel for the appellant, the learned Public Prosecutor as also the learned counsel for the de facto complainant. 4. The learned counsel for the appellant contended that the appellant has given notice of no confidence motion for removing the de facto complainant from the office of the President of the Block Panchayat on 05.11.2019 and it is thereafter on 07.11.2019, that the de facto complainant lodged the complaint on the basis of which the crime was registered. According to the learned counsel, the initiation of the proceedings under the Act against the appellant is therefore vitiated by malice. It was pointed out that if the initiation of Crl.A. No. 1349 of 2019 ..4.. proceedings under the Act is vitiated by malice, an application for anticipatory bail is maintainable. 5. _Per contra_ , the learned counsel for the de facto complainant contended that the question as to whether initiation of the proceedings under the Act was vitiated by malice is irrelevant after the introduction of Section 18A of the Act. It was asserted by the learned counsel that the allegations would _prima facie_ make out the offences alleged and the application for anticipatory bail is therefore, not maintainable. 6. I have considered the contentions raised by the learned counsel for the parties on either side. 7. A two Judges Bench of the Apex Court in **Subhash Kashinath Mahajan (Dr.)** v. **State of Maharashtra and Another** [2018 (2) KHC 207 (SC)], after elaborately dealing with the provisions of the Act, has issued the following directions: (i) Proceedings in the present case are clear abuse of process of court and are quashed. ii) There is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide. Crl.A. No. 1349 of 2019 ..5.. iii) In view of acknowledged abuse of law of arrest in cases under the Atrocities Act, arrest of a public servant can only be after approval of the appointing authority and of a non-public servant after approval by the S.S.P. which may be granted in appropriate cases if considered necessary for reasons recorded. Such reasons must be scrutinized by the Magistrate for permitting further detention. iv) To avoid false implication of an innocent, a preliminary enquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the Atrocities Act and that the allegations are not frivolous or motivated. v) Any violation of direction (iii) and (iv) will be actionable by way of disciplinary action as well as contempt. Later, a three Judges Bench of the Apex Court in **Union of India** v. **State of Maharashtra and Others** (2019 (5) KHC 57) has recalled directions (iii), (iv) and (v) issued in **Subhash Kashinath Mahajan's** case. It is seen that it is in the meanwhile, the Act was amended and Section 18A was introduced. Section 18A of the Act reads thus: "18A. (1) For the purposes of this Act,— (a) preliminary enquiry shall not be required for registration of a First Information Report against any person; or (b) the investigating officer shall not require approval for the arrest, if necessary, of any person, against whom an accusation of having committed an offence under this Act Crl.A. No. 1349 of 2019 ..6.. has been made and no procedure other than that provided under this Act or the Code shall apply. (2) The provisions of section 438 of the Code shall not apply to a case under this Act, notwithstanding any judgment or order or direction of any Court.". The validity of Section 18A of the Act was again considered by the Apex Court in **Prathvi Raj Chauhan v. Union of India & Others** (W.P.(C) No. 1015 of 2018). Paragraphs 9 and 10 of the said judgment read thus: “9. The section 18A(i) was inserted owing to the decision of this Court in Dr. Subhash Kashinath (supra), which made it necessary to obtain the approval of the appointing authority concerning a public servant and the SSP in the case of arrest of accused persons. This Court has also recalled that direction on Review Petition (Crl.) No.228 of 2018 decided on 1.10.2019. Thus, the provisions which have been made in section 18A are rendered of academic use as they were enacted to take care of mandate issued in Dr. Subhash Kashinath (supra) which no more prevails. The provisions were already in section 18 of the Act with respect to anticipatory bail. 10. Concerning the applicability of provisions of section 438 Cr.PC, it shall not apply to the cases under Act of 1989. However, if the complaint does not make out a prima facie case for applicability of the provisions of the Act of 1989, the bar created by section 18 and 18A (i) shall not apply. We have clarified this aspect while deciding the review petitions.” Crl.A. No. 1349 of 2019 ..7.. As noted, the essence of the case set out by the appellant is that in the light of the judgments of the Apex Court referred to above, if the court finds that the initiation of the proceedings under the Act is vitiated by malice, the court has the power to grant anticipatory bail. The essence of the case set out by the de facto complainant is that in the light of Section 18A of the Act, the power under Section 438 of the Code of Criminal Procedure can be invoked only in a case where there is no _prima facie_ material to make out a case under the Act. According to the learned counsel, insofar as the present case prima facie discloses a case under the Act, the appellant is not entitled to invoke the power under Section 438 of the Code of Criminal Procedure for claiming pre-arrest bail either before the Sessions Court or before this Court. The learned counsel draws support for this proposition from paragraph 10 of the judgment in **Prathvi Raj Chauhan** 's case. 8. On a combined reading of the three decisions aforesaid, I am of the view that direction No.(i) in **Subhash Kashinath Mahajan** 's case that power of this Court under Section 438 of the Code of Criminal Procedure can be invoked in a case where initiation of proceedings under the Act was Crl.A. No. 1349 of 2019 ..8.. vitiated by malice, has not been diluted by the Apex Court in **Prathvi Raj Chauhan** 's case. In other words, if the court finds, on the materials, that initiation of proceedings is vitiated by malice, according to me, the court can certainly exercise the power under Section 438 of the Code of Criminal Procedure. 9. Reverting to the facts of the present case, the fact that the appellant has given notice of no confidence motion on 05.11.2019, for removing the de facto complainant from office, is not disputed. If that be so, I doubt as to whether the initiation of the proceedings under the Act against the appellant on 7.11.2019 is bona fide. In the said view of the matter, I am inclined to set aside the impugned order and grant anticipatory bail to the appellant on the following conditions: i) The appellant shall make himself available for interrogation before the Investigating Officer within ten days from today. He shall also make himself available for interrogation before the Investigating Officer as and when directed by the Investigating Officer in writing to do so; Crl.A. No. 1349 of 2019 ..9.. ii) If the appellant is arrested prior to, or after his appearance before the Investigating Officer in terms of this order, he shall be released from custody on execution of a bond for Rs.25,000/- with two sureties each for the like sum. (iii) The appellant shall not influence or intimidate the prosecution witnesses nor shall he attempt to tamper with the evidence of the prosecution. iv) The appellant shall not involve in any other offence while on bail. **Sd/P.B.SURESH KUMAR JUDGE** ds 19.02.2020 Crl.A. No. 1349 of 2019 ..10.. ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 TRUE COPY OF THE FI STATEMENT & REPORT IN CRIME NO.710/2019 OF KUNNAMANGALAM POLICE STATION.** **ANNEXURE A2 TRUE COPY OF THE NO CONFIDENCE MOTION BROUGHT UP BY THE APPELLANT & OTHERS.**