Sudheesh v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **FRIDAY, THE 31ST DAY OF JANUARY 2020 / 11TH MAGHA, 1941** ## **CRL.A.No.1478 OF 2019** **AGAINST THE ORDER IN CRMC 2079/2019 DATED 04-12-2019 OF SESSIONS COURT,THRISSUR** **CRIME NO.623/2019 OF Vadakkanchery Police Station , Thrissur** ## **APPELLANT/PETITIONER/ACCUSED NO.1:** **SUDHEESH, AGED 35 YEARS PATTUKULANGARA HOUSE, PUTHURUTHY VILLAGE, PUTHURUTHY DESOM, THALAPPILLY TALUK.** **BY ADVS. SRI.P.VIJAYA BHANU (SR.) SRI.M.REVIKRISHNAN SRI.V.C.SARATH SRI.VIPIN NARAYAN SRI.AJEESH K.SASI SMT.POOJA PANKAJ SRUTHY N. BHAT SRI.P.M.RAFIQ** ## **RESPONDENTS/RESPONDENT/COMPLAINANT:** **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** ADDL.R2 IMPLEADED **ADDL.R ARUN K.S. 2 AGED 30 YEARS, S/O SUNDARAN, KOTHOTTIL HOUSE, PUDURUTHY, THRISSUR RURAL, KERALA-680623.** **ADDITIONAL SECOND RESPONDENT IMPLEADED AS PER ORDER DATED 31.12.2019 IN CRL.MA NO.3/2019.** ## **R2 BY ADV. SRI.K.K.RAJEEV** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29.01.2020, THE COURT ON 31.01.2020 DELIVERED THE FOLLOWING:** **CRL.A.No.1478 OF 2019** **2** ## **R. NARAYANA PISHARADI, J -----------------------------------------Crl.A.No.1478 of 2019** ## **------------------------------------------** Dated this the 31[st] day of January, 2020 ## **JUDGMENT** This is an appeal filed under Section 14A(2) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'the Act'). 2. The appellant is the sole accused in the case registered as Crime No. 623/2019 of the Wadakkancherry Police Station under Sections 448, 506, 323 and 324 IPC and also under Sections 3(1)(r), 3(1)(s) and 3(2)(va) of the Act. 3. The case against the appellant was registered on the basis of the first information statement given to the police by the additional second respondent, who is the de facto complainant. 4. The material averments in the first information statement given to the police by the de facto complainant are as follows: On 01.11.2019, at about 20:00 hours, the de facto complainant was sitting in his house. Then, the accused came to his house threatening him that he would kill him. He called the de facto complainant by his caste name. The accused was having in his possession an iron rod. **CRL.A.No.1478 OF 2019** **3** He beat the de facto complainant with the iron rod on the back of the ear and dragged him out of the house and kicked on his chest. The accused is not a member of a scheduled caste or a scheduled tribe. The de facto complainant is a member of a scheduled caste. 5. The appellant/accused filed an application for anticipatory bail under Section 438 Cr.P.C before the Court of Session, Thrissur. As per the impugned order, the learned Sessions Judge dismissed the aforesaid application holding that, a prima facie case is made out against the appellant for committing the offences under the Act and therefore, he is not entitled to get anticipatory bail in view of the bar contained in Sections 18 and 18A(2) of the Act. 6. I have heard the learned counsel for the appellant and the learned Public Prosecutor. I have also heard the learned counsel for the second respondent/de facto complainant. Perused the case diary. 7. Learned counsel for the appellant contended that the case against the appellant is a false one and that the averments in the first information statement given to the police by the de facto complainant do not reveal the commission of any offence under the Act by the appellant and therefore, the learned Sessions Judge has gone wrong in invoking Sections 18 and 18A(2) of the Act and declining the benefit of pre-arrest bail to the appellant. **CRL.A.No.1478 OF 2019** **4** 8. On the other hand, learned Public Prosecutor would contend that the first information statement given to the police by the de facto complainant and the statements of the witnesses recorded by the police disclose the ingredients of the offences under the Act alleged against the appellant. Learned Public Prosecutor also submitted that there is absolute bar under Sections 18 and 18A(2) of the Act against granting anticipatory bail to a person accused of having committed an offence under the Act. 9. Section 18 of the Act provides that, nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under the Act. 10. Section 18A(2) of the Act, which was introduced by Act 27 of 2018 and which came into force with effect from 20.08.2018, provides that the provisions of Section 438 Cr.P.C shall not apply to a case under the Act, notwithstanding any judgment or order or direction of any court. 11. The provisions contained in Sections 18 and 18A(2) of the Act do not prevent or prohibit the court from examining whether a prima facie case is made out attracting the provisions of the Act. If it is found by the court that a prima facie case is not made out against **CRL.A.No.1478 OF 2019** **5** the accused and that the allegations against the accused do not attract any of the offences under the Act, the bar created under Sections 18 and 18A(2) of the Act against granting anticipatory bail, does not come into play. Judicial scrutiny is permissible to ascertain whether the allegations raised against an accused attract any of the offence under the Act (See **Binesh v. State of Kerala: 2020 (1) KHC 240** ). 12. Therefore, the question arises whether the allegations raised against the appellant in the first information statement given to the police by the de facto complainant and the statements of the witnesses, prima facie, attract any offence under the Act. 13. There is a specific allegation in the first information statement that the appellant/accused beat the de facto complainant on the back of the head with an iron rod and caused hurt to him. There is also an averment in the first information statement that the appellant/accused kicked on the chest of the de facto complainant. There is further averment that the appellant/accused threatened the de facto complainant that he would kill him. These allegations raised against the appellant, prima facie, attract the offences punishable under Sections 323,324 and 506 IPC. 14. The case diary contains the wound certificate issued by the doctor after examining the de facto complainant at the hospital at **CRL.A.No.1478 OF 2019** **6** 20:55 hours on 01.11.2019. It shows that the de facto complainant had sustained an abrasion on the back of left ear and that he had complained of pain on the left chest. 15. In this context, it is also to be mentioned that, the de facto complainant is a heart patient who has fixed a pacemaker. There is a specific allegation in the first information statement that it was on that portion of the chest where the pacemaker is fixed that the accused/appellant kicked him. 16. Section 3(2)(va) of the Act provides that, whoever, not being a member of a scheduled caste or a scheduled tribe, commits any offence specified in the Schedule, against a person or property, knowing that such person is a member of a scheduled caste or a scheduled tribe or such property belongs to such member, shall be punishable with such punishment as specified under the Indian Penal Code for such offences and shall also be liable to fine. 17. The offences punishable under Sections 323, 324 and 506 IPC are alleged against the appellant and these offences are prima facie made out from the allegations raised against the appellant. The offences punishable under Sections 323, 324 and 506 IPC are mentioned in the schedule of the Act. It follows that, prima facie, the allegations against the accused also attract the offence punishable **CRL.A.No.1478 OF 2019** **7** under Section 3(2)(va) of the Act. 18. Of course, in order to attract the offence under Section 3(2)(va) of the Act, it has to be shown that the accused committed the offences against the person, who is a member of a scheduled caste or a scheduled tribe or the property belonging to such person, with the knowledge that such person is a member of a scheduled caste or a scheduled tribe. In the instant case, the accused and the de facto complainant are neighbors. There is an allegation in the first information statement itself that the accused called the de facto complainant by his caste name. In such circumstances, it cannot be found that the appellant/accused had no knowledge of the fact that the de facto complainant is a person who belonged to a scheduled caste. 19. After the amendment of the Act by virtue of Amendment Act 1 of 2016 with effect from 26.01.2016, mere knowledge of the accused that the person upon whom the offence is committed belongs to scheduled caste or scheduled tribe is sufficient (See **Asharfi v. State of U.P : AIR 2017 SC 5819** ). 20. Since it is found that the offence punishable under Section 3(2)(va) of the Act is, prima facie, made out against the appellant/accused, it is not necessary to consider whether the offences **CRL.A.No.1478 OF 2019** **8** punishable under Sections 3(1)(r) and 3(1)(s) of the Act are made out against him. 21. In the aforesaid circumstances, I find no illegality or impropriety in the impugned order passed by the learned Sessions Judge dismissing the application for anticipatory bail filed by the appellant. The appeal is liable to be dismissed. Consequently, the appeal is dismissed. **Sd/- R. NARAYANA PISHARADI JUDGE** ## **lsn**