Tinu Peter v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 24[TH] DAY OF MARCH 2023 / 3RD CHAITHRA, 1945** **CRL.A NO. 429 OF 2023** **AGAINST THE ORDER/JUDGMENT IN CRMP 1/2023 OF SPECIAL COURT FOR SC/ST ATROCITIES ACT CASES, THRISSUR** ## **APPELLANT/ACCUSED:** TINU PETER, AGED 32 YEARS CHIRAYATH HOUSE, FANCY LANE, WEST FORT DESOM, THRISSUR, KERALA, PIN – 680 004. BY ADVS. SARATH BABU KOTTAKKAL VISHNUPRASAD NAIR ## **RESPONDENTS/COMPLAINTS:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2 KUNJIRAMAN, AGED 74 YEARS VALIYAPURAKKAL HOUSE, PUTTEKKARA DESOM, ANJUR, MUNDUR, THRISSUR, KERALA, PIN - 680541 BY ADV PUBLIC PROSECUTOR ## **OTHER PRESENT:** PP M.C.ASHI THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 21.03.2023, THE COURT ON 24.03.2023 DELIVERED THE FOLLOWING: Crl.A.429/2023 2 ## **JUDGMENT** ## Dated this the 24[th] day of March, 2023 The appellant is the sole accused in Crime No.1150 of 2022 of Peramangalam Police Station, registered for offences under Sections 364 and 302 of the Indian Penal Code. The prosecution case is that, at 22 hrs. on 26.12.2022, the appellant attacked Arunlal, banged his head against the compound wall and hit on his face with a beer bottle. When Arunlal fell down, the appellant kicked and strangled him. By reason of the attack, the bones on the neck, jaw, thyroid and cartilage of Arunlal were broken. He suffered cerebral hemorrhage and succumbed to the injuries, while undergoing treatment at Thrissur Medical College. It was later revealed that the appellant, a person belonging to Christian community, had committed the crime with the knowledge that Arunlal belonged to the scheduled caste, Kanakkan community. Hence offences under the Scheduled Castes and Scheduled Crl.A.429/2023 3 Tribes (Prevention of Atrocities) Act ('the Act' for short) were also incorporated. The appellant was arrested on 27.12.2022 and is in judicial custody from that day onwards. The bail application preferred by the appellant before the Special Court was dismissed by Annexure A4. Thereupon, the appellant moved a bail application before this Court, which was dismissed under Annexure A5. The appellant again preferred a bail application before the Special Court which the court dismissed as per Annexure A7. Aggrieved, this Criminal appeal is filed. 2. Learned counsel for the appellant contended that, by virtue of Rule 7 of the Scheduled Castes and Scheduled Tribe (Prevention of Atrocities) Rules ('the Rules' for short), the appellant became entitled for default bail on 28.02.2023. To buttress the contention, reference is made to Rule 7 which reads as under; “7. **Investigating Officer** . (1) An offence committed under the Act shall be investigated by a police officer not below the rank of a Superintendent of Police. The investigating officer shall be appointed by the Deputy State Government/Director General of Police/Superintendent of Police after taking into account his past Crl.A.429/2023 4 experience, sense of ability and justice to perceive the implications of the case and investigate it alongwith right lines within the shortest possible time. (2) The investigating officer so appointed under sub-rule (1) shall complete the investigation on top priority, submit the report to the Superintendent of Police, who in turn shall immediately forward the report to the Director General of Police or Commissioner of Police of the State Government, and the officer in-charge of the concerned police station shall file the charge sheet in the Special Court or the Exclusive Special Court within a period of sixty days (the period is inclusive of investigation and filing of charge-sheet). (2-A) The delay, if any, in investigation or filing of chargesheet in accordance with sub-rule (2) shall be explained in writing by the investigating officer. (3) The Secretary, Home Department and the Secretary Scheduled Castes and Scheduled Tribes Development Department (the name of the Department may vary from State to State) of the State Government or Union territory Administration, Director of Prosecution, the officer in-charge of Prosecution and the Director General of Police or the Commissioner of Police in- charge of the concerned State or Union territory shall review by the end of every quarter the position of all investigations done by the investigating officer.” It is contended that as per Rule 7(2), investigation into offences under the Act should be completed within 60 days and charge sheet filed in the Special Court within that period. Crl.A.429/2023 5 Hence, if the investigation is not completed within that period, the accused becomes entitled for statutory bail. According to the learned counsel, the shorter period for completion of investigation was consciously included in view of the harsh consequences for commission of offences under the Act. In support of this contention, reliance is placed on **State of Bihar and Ors. v. Anil Kumar and Ors.** [(2017) (14) SCC 304] , wherein the Apex Court upheld Rule 7(1), requiring the appointment of an officer in the rank of Deputy Superintendent of Police for investigating offences under the Act. Reliance is also placed on Section 4 of the Act which provides for punishment for failure to conduct investigation and file charge sheet within the period of 60 days. 3. Placing reliance on Section 4 of the Code, it is contended that in view of Rule 7, the 90 days for completing investigation in offences punishable with imprisonment for more than ten years, stipulated in Section 167(2), will not apply. The learned counsel also contended that, even if the prosecution allegation is accepted, there is no justification for Crl.A.429/2023 6 the continued incarceration of the appellant after completion of investigation. 4. Learned Public Prosecutor submitted that Rule 7 does not provide for grant of default bail. On the other hand, the rule requires the investigating officer to complete the investigation and file final report within 60 days. As per Sub rule 2-A of Rule 7 the investigating officer can file the final report even after expiry of 60 days. The only condition is that the reason for delay should be explained. Section 4(2)(e) prescribes punishment for a term of less than six months, if the final report is not filed within 60 days and an acceptable explanation for the delay is not submitted. Moreover, the question has become academic, since the final report was filed on 14.03.2023. 5. In spite of the appealing arguments advanced by the learned counsel for the petitioner, it is impossible to accept the contention that Rule 7 should be taken as a provision mandating grant of default bail to an accused who is in custody for committing an offence punishable with Crl.A.429/2023 7 imprisonment for more than ten years, if the investigation is not completed and final report filed within 60 days. As rightly pointed out by the Public Prosecutor, Rule 7(2-A) itself makes provision for filing the final report after 60 days. All that is required for the investigating officer is to give a written explanation to the court for not filing the final report within 60 days. Hence, the provision cannot be interpreted or understood as one conferring the accused with a right to be enlarged on default bail. Another relevant aspect is the absence of any indication in Section 4 that failure to file final report will confer the accused with the right to be enlarged on default bail. On the contrary Section 4 provides for punishing the officer responsible for the delay in filing the final report. 6. The contention based on Section 4 of the Code cannot also be countenanced. Even as per Section 4 (2), all offences under other laws are to be investigated, inquired into and tried as per the provisions of the Code, subject to any enactment for the time being in force, regulating the manner or place of investigation, inquiry or trial. In this context, it may be Crl.A.429/2023 8 ## profitable to read the following extract from **Gangula Ashok and Anr. v. State of A.P.** [(2000) 2 SCC 504]; "13. A reading of the sub-section makes it clear that subject to the provisions in other enactments all offences under other laws shall also be investigated, inquired into, tried and otherwise dealt with under the provisions of the Code. This means that if another enactment contains any provision which is contrary to the provisions of the Code, such other functions (sic provision) would apply in place of the particular provision of the Code. If there is no such contrary provision in other laws, then provisions of the Code would apply to the matters covered thereby.” 7. It is pertinent to note that wherever the provisions of the Code are to be excluded, the legislature has consciously incorporated such provision in the Act. For example, Section 9 of the Act confers the State Government with the power to group any class of cases under the Act, notwithstanding anything contained in the Code. Similarly Section 14A provides for appeals and Section 18 imposes a prohibition against grant of anticipatory bail under Section 438 of the Code. As Section 4 of the Act or Rule 7 of the Rules are not in any manner contradictory to Section 167 of the Code, the contention that Crl.A.429/2023 9 Rule 7 provides for default bail, irrespective of the prescription in Section 167 of the Code, can only be rejected. 8. The contention that the appellant is entitled for bail, having been in custody from 27.12.2022 onwards, is also liable to be discarded, considering the nature of the allegations and gravity of the offences. In the result, the Crl.Appeal is dismissed. Sd/- **V.G.ARUN** **JUDGE** sb Crl.A.429/2023 10 ## **APPENDIX OF CRL.A 429/2023** PETITIONER ANNEXURES |Annexure A1|THE TRUE PHOTOCOPY OF THE FIR AND FIS IN| |---|---| ||CRIME NO 1150/2022 OF PERAMANGALAM POLICE| ||STATION DATED 27-12-2022| |Annexure A2|THE TRUE PHOTOCOPY OF THE REMAND REPORT AND| ||ARREST MEMO IN CRIME NO 1150/2022 OF| ||PERAMANGALAM POLICE STATION DATED 29-12-2022| |Annexure A3|A TRUE PHOTOCOPY OF THE ORDER IN CRL.M.P| ||4/2023 DATED 05-01-2023 OF THE HON'BLE| ||JUDICIAL FIRST CLASS MAGISTRATE'S COURT,| ||KUNNAMKULAM| |Annexure A4|A TRUE PHOTOCOPY OF THE ORDER IN CRL.M.C| ||64/2023 DATED 27-01-2023 OF THE HON'BLE| ||SESSIONS JUDGE, THRISSUR| |Annexure A5|A TRUE PHOTOCOPY OF THE ORDER IN BAIL APPL.NO| ||1363/2023 DATED 01-03-2023 OF THE HON'BLE| ||KERALA HIGH COURT| |Annexure A6|A TRUE PHOTOCOPY OF THE BAIL APPLICATION| ||FILED BY THE APPELLANT DATED 01-03-2023| |Annexure A7|A TRUE PHOTOCOPY OF THE ORDER IN CRL.M.P| ||1/2023 DATED 10-03-2023 OF THE HON'BLE| ||SPECIAL JUDGE, SPECIAL COURT FOR SC/ST (POA)| ||ACT CASES, THRISSUR| Crl.A.429/2023 11