Sree Raj and Nidhin Raj v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 11TH DAY OF DECEMBER 2019 / 20TH AGRAHAYANA, 1941** ## **CRL.A.No.1422 OF 2019** ## **AGAINST THE ORDER/JUDGMENT IN CRMP 5056/2019 DATED 21-08-2019 OF DISTRICT & SESSIONS COURT, ALAPPUZHA** **CRIME NO.615/2019 OF Nooranadu Police Station , Alappuzha** ## **APPELLANTS/PETITIONERS/ACCUSED NOS.1 & 2:** **1 SREE RAJ AGED 27 YEARS S/O. SREELATHA, KANJIRAVILAYIL, PAYYANALLUR MURI, PALAMEL, NOORANADU, ALAPPUZHA 690 504** **2 NIDHIN RAJ, AGED 25 YEARS S/O. SREELATHA, KANJIRAVILAYIL, PAYYANALLUR MURI, PALAMEL, NOORANADU, ALAPPUZHA 690 504** **BY ADVS. SRI.P.VIJAYA BHANU (SR.) SRI.P.M.RAFIQ SRI.M.REVIKRISHNAN SRI.AJEESH K.SASI SRI.V.C.SARATH SRI.VIPIN NARAYAN SMT.POOJA PANKAJ SRUTHY N. BHAT** ## **RESPONDENTS/RESPONDENTS/STATE & DEFACTO COMPLAINANT:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKLULAM 682 031** **2 RAJIMOL, AGED 26 YEARS W/O. BALA AJESH, KANJIRAVILAYIL, PAYYANALLUR MURI, PALMEL, NOORANADU, ALAPPUZHA 690 504** **BY ADVS. SRI.T.R.RENJITH, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 11.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.Appeal No. 1422 of 2019 2 ## ALEXANDER THOMAS, J. -----------------------------------Crl.Appeal No. 1422 of 2019 -----------------------------------Dated this the 11[th] day of December, 2019 ## **JUDGMENT** The appellants herein have been arrayed as accused Nos.1 and 2 among the nine accused mentioned in the impugned Anx.A Crime No.615 of 2019 of Nooranadu Police Station, Alappuzha, which has been registered for the offences punishable under Secs. 143, 147, 148, 149, 447, 323, 324, 354, 294(b) and 427 of the IPC. The said crime has been registered on the basis of the F.I Statement given by the lady defacto complainant on 11-05-2019 at about 2.30 p.m, in respect of the alleged incidents, which had happened on the previous day (10-05-2019) at about 8.45 p.m. The Police after investigation has now included offences as per Secs.3(1)(r) and 3(1)(s) of the SC/ST (Prevention of Atrocities) Act 2015 as amended. It is stated that the lady defacto complainant in this case belongs to a Scheduled Caste community. 2. The learned counsel for the appellants would point out that the abovesaid allegations are false and fabricated. Further that in 3 Crl.Appeal No. 1422 of 2019 relation to the allegations in Anx.A crime, a counter case has been duly registered by the very same Police Station (Nooranadu Police Station) as crime No.616/2019 of that Station, for offences punishable under Secs. 341, 323, 324, 294(b) and 34 of the IPC and two among the three accused therein, are the brother and brother-inlaw respectively of the lady defacto complainant herein and the defacto complainant in Anx.C crime is the mother of the two appellants herein. The allegations in Anx.C crime are to the effect that on 10-05-2019 (which is the same day of the incident as in Anx.A), at about 8.15 p.m and the accused persons in Anx.C, viz., the brother and brother-in-law of the lady defacto complainant herein and another person, had trespassed into the house of the appellants and committed mischief therein and had assaulted the mother of the appellants, etc,. Further it is pointed out that earlier Anx.B crime No.1046/2019 of Adoor Police Station was also duly registered on 25-04-2019 for offences punishable under Secs.143, 147, 148, 149, 323, 324, 506 and 452 of the IPC, in respect of the alleged incidents which happened on 24-04-2019 at about 9.00 p.m. In Anx.B also the brother and brother-in-law of the defacto complainant herein and many others have been arrayed as accused and the defecto Crl.Appeal No. 1422 of 2019 4 complainant in Anx.B crime is a close relative of the appellants, wherein also the allegation is regarding trespass and assault in the house of the relative of the appellants. It is urged by the learned counsel for the appellants that it is only account of the abovesaid incidents, in which the brother and brother-in-law of the lady defacto complainant were arrayed as accused that the instant false allegations have been made in Anx.A and included also offences as per Sec.SC/ST (POA) Act, 1989 in order to deny bail to the appellants at any cost. Further it is pointed out that the 1[st] appellant herein is a Soldier working in Indian Army in Srinagar, Jammu Kashmir. 3. On this basis it is pointed out that the allegations in Anx.A have been made up only for _malafide_ and extraneous considerations and that therefore, in view of the dictum laid down by this Court as in decision as in _**Jishnu v. State of Kerala [2019 (1) KLT 432]**_ , the statutory Bar under Sec.18-A of the abovesaid Act will not apply and that this Court may therefore grant anticipatory bail to the appellants, subject to any appropriate conditions. 4. The learned Prosecutor has opposed the plea for anticipatory bail and has pointed out that since now the offences as per Sec. 3(1) (r) and 3(1)(s) of the SC/ST (POA) Act as amended have been Crl.Appeal No. 1422 of 2019 5 included the statutory Bar contained in Sec.18-A of the said Act will apply and therefore this Court is denuded of its jurisdiction and competence to consider the plea for anticipatory bail on merits. 5. Per Contra, the learned counsel for the appellants would also point out that one of the essential ingredients for pressing into service the offences as per Secs.3(1)(r) and 3(1)(s) of the abovesaid Act is that the alleged offence of insulting or intimidating the member of the Scheduled Caste/Scheduled Tribe should have happened in a place within public view and further that in the instant case the admitted case of the lady defacto complainant in the impugned Anx.A crime is that the incidents have taken place inside her residence and therefore it is not admittedly within public view and hence both the said offences will not lie. 6. On being queried, the learned Prosecutor would point out that the injuries noted in the wound certificate issued to the lady defacto complainant in this case are of minor nature. 7. After hearing both sides, it is seen that the offence as per Secs.3(1)(r) and 3(1)(s) of the SC/ST (POA) Act, 1989, may not come into play for the simple reason that even going by the admitted allegation in Anx.A crime, the incidents have happened inside the 6 Crl.Appeal No. 1422 of 2019 precincts of the property of the lady defacto complainant and therefore, not happened little public view. Therefore, it is only to be held that the bar under Sec.18 and 18A of the said Act will also not come into play. 8. Accordingly, taking note of the facts and circumstances of this case, more particularly the allegations and counter allegations made by the rival parties in Anxs.A, B and C crimes etc., this Court is inclined to take the view that, the custodial interrogation of the appellants may not really be necessary or warranted for the smooth and effective conduct of the investigation in this crime. 9. The learned Prosecutor would submit that the appellants have not so far appeared before the Investigating Officer for the interrogation process. 10. Accordingly, the following directions and orders are passed: _i. The appellants will immediately personally appear before the Investigating Officer in Crime No.615/2019 of Nooranadu Police Station for interrogation purposes without any further delay, at any rate, by 9.00 am on any day on or before 14.01.2020 or within such extended time limit that may be fixed by the Investigating Officer._ 7 Crl.Appeal No. 1422 of 2019 - _ii. The appellants will fully co-operate with the Investigating Officer in the interrogation process._ - _iii. After the interrogation process is over, in case, the Investigating Officer arrests the appellants in relation to the abovesaid crime, then they shall be released on bail on separately executing bonds for Rs.40,000/- (Rupees Forty Thousand only) and on separately furnishing two solvent sureties for the like sum each, both to the satisfaction of the Investigating Officer concerned._ _However, the grant of bail will be subject to the following conditions:_ - _(a) The appellants shall not involve in any criminal offences of similar nature._ - _(b) The appellants shall fully co-operate with the investigation._ - _(c) The appellants shall report before the Investigating Officer as and when required in that connection._ - _(d) The appellants shall not influence the witness or shall not tamper or attempt to tamper evidence in any manner, whatsoever._ ## 11. If there is any violation of the above said conditions by the appellants, then the jurisdictional court concerned will stand hereby Crl.Appeal No. 1422 of 2019 **==> picture [8 x 9] intentionally omitted <==** empowered to consider the plea for cancellation of bail at the appropriate time. With these observations and directions, the above Criminal Appeal will stand disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** KAS Crl.Appeal No. 1422 of 2019 9 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A** **TRUE COPY OF THE FIR AND THE FIRST INFORMATION STATEMENT IN CRIME NO. 615/2019 OF THE NOORNADU POLICE STATION.** **ANNEXURE B** **TRUE COPY OF THE FIR IN CRIME NO. 1046/2019 OF THE ADOOR POLICE STATION.** **ANNEXURE C** **TRUE COPY OF THE FIR IN CRIME NO. 616/2019 OF THE NOORANADU POLICE STATION.**