Suresh P. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **TUESDAY, THE 18[TH] DAY OF OCTOBER 2022/26TH ASWINA, 1944** **CRL.A NO. 935 OF 2022** **AGAINST THE ORDER/JUDGMENT IN CRL.M.P. NO.605/2022 OF THE SPECIAL COURT FOR SC/ST(POA)ACT, 1989, MANNARKKAD APPELLANT/ACCUSED:** SURESH.P., AGED 44 YEARS, SON OF UNNIKRISHNAN, MADHAVA NIVAS, MANNUR, NAGARIPURAM, MANKARA, PALAKKAD, PIN – 678642. BY ADVS. SARATH M.S. SOORAJ KRISHNAN K.V. ## **RESPONDENTS/STATE, INVESTIGATION OFFICER & VICTIM:** 1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031. 2 STATION HOUSE OFFICER, MANKARA POLICE STATION, MANKARA.P.O., PALAKKAD DISTRICT, PIN – 678642. 3 SIJESH, SON OF RAJAN, NAGARIPURAM, MANNUR, MANKARA, PALAKKAD, PIN – 678613. BY ADVS. DINESH MATHEW J.MURIKAN VINOD S. PILLAI (K/631/2012) NAYANA VARGHESE (K/283/2021) AHAMMAD SACHIN K.(K/001814/2019) T.R.RENJITH, SR. PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 18.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **Crl.Appeal No.935 of 2022** 2 ## **JUDGMENT** ## **Dated, this the 18[th] October, 2022** This is an appeal arises out of order in Crl.M.P.No.605/2022 on the file of the Special Court for the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Mannarkkad, dismissing anticipatory bail plea at the instance of the appellant herein, who is the sole accused in Crime No.296/2022. 2. Since this matter involves commission of offences under the SC/ST (POA) Act, a notice to the de-facto complainant was issued as mandated under Section 15A(3) of the SC/ST (POA) Act. On getting notice Adv.Vinod S.Pillai appeared for the de-facto complainant. 3. Heard the learned counsel for the appellant, the learned counsel for the de-facto complainant as well as the learned Public Prosecutor. **Crl.Appeal No.935 of 2022** 3 4. In this matter, prosecution allegation is that on 12.05.2022 at about 14:30 hrs, the accused herein, who does not belong to Scheduled Caste or Scheduled Tribe, manhandled the de-facto complainant, who is the member of the Scheduled Caste community, when he intervened in the action of the accused in throwing stone against his cow, which was on the farm owned by the de-facto complainant. The specific allegation is that the accused beat on the forehead and neck of the defacto complainant by using a stone and when the de-facto complainant fell down, he beat on his hand. When he attempted to wake up, his dhoti was removed by the accused and put it on his neck. On hearing his cry, his mother reached the place of occurrence and the accused called the caste name of the mother of the de-facto complainant, within public view. The further statement is that when the de-facto complainant was examined by the doctor, it was found that he had sustained ## **Crl.Appeal No.935 of 2022** 4 fracture on his finger. Initially, alleging crime under commission of offences under Section 341, 324, 294(b) IPC and section 3(1)(r)(s), 3(2)(va) of SC/ST (POA) Act. However, it is discernible from the case diary that based on the finding of the wound certificate that the de-facto complainant sustained fracture P1 and offence under Section 326 also was added in this case. 5. While canvassing anticipatory bail, it is submitted by the learned counsel for the appellant that no _prima facie_ case made out in this case and, therefore, the bar under Section 18 and 18A of the SC/ST (POA) Act has no applications in the present case. 6. In order to substantiate the said contention, the learned counsel submitted that the de-facto complainant herein, manhandled the accused and for which he lodged a complaint on the date of occurrence on 12.05.2022 itself before the Circle Inspector, Mankara Police ## **Crl.Appeal No.935 of 2022** 5 Station, Palakkad, but no crime registered and the police stalled the registration of the crime, acting on the complaint of the accused. Later, when the police was forced to register crime on the complaint of the accused, Police registered the present crime against the accused, also was a counter case. According to the learned counsel, on earlier occasions also there were cases and counter case in between the parties. 7. The learned counsel also given emphasis to the copy of wound certificate in relation to the accused, to show the injuries he sustained in the occurrence, due to overtacts at the instance of the de-facto complainant. 8. The learned counsel for the de-facto complainant zealously opposed the anticipatory bail highlighting that, in this case, _prima facie_ the offences alleged under Section 3(1)(r)(s) and 3(2)(va) of the SC/ST (POA) Act is well made out. Apart from another non-bailable offences under ## **Crl.Appeal No.935 of 2022** 6 Section 326 of IPC also is made out. 9. In view of the matter, grant of anticipatory bail is specifically barred. Therefore, the order impugned is liable to be confirmed. 10. The learned Public Prosecutor also opposed the bail by sharing the arguments put up by the learned counsel for the de-facto complainant highlighting arrest, custodial interrogation and recovery of the weapon alleged to be used by the accused in the offences involving Section 326 of IPC also. 11. Though it is well settled that grant of anticipatory bail in offences under the SC/ST (POA) Act is specifically barred under Section 18 and 18A of the act. 12. Even after amendment and incorporation of Section 18A, a three bench of the Apex Court considered the impact of Section 18 and 18-A _**Prathvi Raj Chauhan v. Union of India (UOI) and**_ ## **Crl.Appeal No.935 of 2022** 7 _**Others**_ [2020 (2) KHC 423 : AIR 2020 SC 1036 : (2020) 4 SCC 727 : MANU/SC/0157/2020] and it was held that _as far as the provision of Section 18-A and anticipatory bail is concerned, the judgment of Mishra,J. has stated that in cases where no prima facie materials exist warranting arrest in a complaint, the court has the inherent power to_ _direct a pre-arrest bail_ . Therefore, the law is no more _res integra_ on the point, when the prosecution allegation make a _prima facie,_ anticipatory bail cannot be granted. 13. In this case, admittedly, the de-facto complainant and his mother are persons belonging to Scheduled Caste and the accused is not a member of the said caste. Thus, the offences alleged by the SC/ST (POA) Act as well as the IPC is well made out. Even assuming that no offences under the SC/ST (POA) Act is not involved, then also a non-bailable offence under Section 326 of the IPC is alleged to be committed by the accused **Crl.Appeal No.935 of 2022** **==> picture [7 x 9] intentionally omitted <==** on the ground that he had caused fracture to P1 right of the de-facto complainant by using a stone. If so, arrest, custodial interrogation and recovery of the stone are essential to effectuate meaningful investigation and successful prosecution. Thus, this is not a case of anticipatory bail. Therefore, it has been held that order passed by the learned Special Judge dismissing anticipatory bail plea in the case of appellant is perfectly in order and, therefore, the order is liable to be confirmed. 14. In the result, this appeal fails and is accordingly dismissed. 15. However, it is made clear that the petitioner can surrender before the Investigating Officer and move for regular bail, in accordance with law, since the regular bail is not barred. Therefore, the petitioner is directed to surrender before the Investigating Officer within a period of seven days. On surrender, the 9 ## **Crl.Appeal No.935 of 2022** Investigating Officer can interrogate the petitioner, recover the weapons, if any, and in the event of his arrest, he shall be produced on the date of his arrest itself, before the Special Court. On production of bail application, if any, will be filed with prior notice to the de-facto complainant and the learned Public Prosecutor, the Special Court hear and dispose of the bail application, as expeditiously as possible, purely on merits, after giving an opportunity for the learned counsel for the de-facto complainant and the learned Public Prosecutor to tender their versions. Sd/- ## **A.BADHARUDEEN, JUDGE.** ww **Crl.Appeal No.935 of 2022** 10 ## **APPENDIX OF CRL.A 935/2022** ## APPELLANT'S ANNEXURES: |ANNEXURE A1|TRUE COPY OF THE F.I.R. IN CRIME| |---|---| ||NO.296/2022 OF MANKARA POLICE STATION,| ||PALAKKAD.| |ANNEXURE A2|TRUE COPY OF THE ORDER DATED 30.7.2022 IN| ||CRL.M.P. NO.605/2022 OF THE SPECIAL COURT| ||FOR SC/ST (POA) ACT, MANNARKKAD.| |ANNEXURE A3|TRUE COPY OF THE O.P. TICKET AND MEDICAL| ||RECORD ISSUED TO THE APPELLANT FROM TALUK| ||HEAD QUARTERS HOSPITAL, OTTAPALAM DATED| ||12.5.2022 ON ACCOUNT THE INJURY SUSTAINED| ||BY THE DE-FACTO COMPLAINANT AND HIS| ||ACCOMPLICE.| |ANNEXURE A4|TRUE COPY OF THE COMPLAINT DATED| ||12.05.2022 SUBMITTED BY APPELLANT BEFORE| ||THE S.H.O., MANKARA.| |ANNEXURE A5|TRUE COPY OF THE COMPLAINT DATED 1.6.2022| ||SUBMITTED BY APPELLANT BEFORE THE| ||SUPERINTENDENT OF POLICE, PALAKKAD.| |ANNEXURE A6|TRUE COPY OF THE F.I.R. IN CRIME| ||NO.297/2022 OF MANKARA POLICE STATION,| ||PALAKKAD.| |ANNEXURE A7|TRUE COPY OF THE F.I.R. IN CRIME| ||NO.97/2021 OF MANKARA POLICE STATION,| ||PALAKKAD.| |ANNEXURE A8|TRUE COPY OF THE F.I.R. IN CRIME| ||NO.397/2021 OF MANKARA POLICE STATION,| ||PALAKKAD.|