Vijayakumar, Sanal and Sasikumar 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.23 OF 2020** **AGAINST THE ORDER IN CRMP 210/2019 DATED 12-12-2019 OF SPECIAL COURT FOR SC/ST (PREVENTION OF ATTROCITIES) ACT CASES, KOTTARAKKARA** **CRIME NO.1175/2019 OF Chavara Police Station , Kollam** ## **APPELLANT/PETITIONER/ACCUSED:** |**1**|**VIJAYAKUMAR**| |---|---| ||**AGED 59 YEARS**| ||**S/O. CHELLAPPAN PILLAI, SANAL BHAVANAM (H), NEAR**| ||**PUTHIYAKAVU TEMPLE, CHAVARA, KOLLAM, PIN - 691 583.**| |**2**|**SANAL**| ||**AGED 34 YEARS**| ||**S/O. VIJAYAKUMAR, SANAL BHAVANAM (H), NEAR**| ||**PUTHIYAKAVU TEMPLE, CHAVARA, KOLLAM, PIN - 691 583.**| |**3**|**SASI @ SASIKUMAR**| ||**AGED 49 YEARS**| ||**S/O. RAMACHANDRAN PILLAI, SANAL BHAVANAM (H), NEAR**| ||**PUTHIYAKAVU TEMPLE, CHAVARA, KOLLAM, PIN - 691 583.**| ||**BY ADV. SRI.AJEESH M UMMER**| ## **RESPONDENTS/RESPONENT/STATE & DE FACTO COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. 2 VINU AGED 29 YEARS S/O. THULASEEDHARAN, CHENNATTU PADINJATTATHIL (H), PAZHANJIKKAVU, CHAVARA, KOLLAM, PIN - 691 583.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29.01.2020, THE COURT ON 31.01.2020 DELIVERED THE FOLLOWING:** **CRL.A.No.23 OF 2020** **2** ## **R. NARAYANA PISHARADI, J -----------------------------------------Crl.A.No.23 of 2020** ## **------------------------------------------** 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 appellants are accused 1 to 3 in the case registered as Crime No. 1175/2019 of the Chavara Police Station under Sections 294(b), 341, 323, 324 and 506(1) read with 34 IPC and also under Sections 3(1)(r), 3(1)(s) and 3(2)(va) of the Act. 3. The case against the appellants was registered on the basis of the first information statement given to the police by the 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 28.10.2019, at about 18:00 hours, the de facto complainant and his friend Visakh were standing at the eastern side of Puthiyakavu Temple. Then the second accused came there. When they were talking, the **CRL.A.No.23 OF 2020** **3** first accused, who is the father of the second accused, came there in an autorickshaw. The first accused called the de facto complainant by his caste name and insulted him. When the de facto complainant asked him why he was being insulted so, the first accused hit on his face with his hand. Then the second accused used obscene words to the annoyance of the de facto complainant and beat him with his hand. Then, the first accused took an iron rod from the autorickshaw and beat on the head of the de facto complainant with it causing injury on the head. At that time, the third accused, who is the brother-in-law of the first accused, came there and he also called the de facto complainant by his caste name and beat on his back and various parts of his body with his hand. The de facto complainant is a person who belongs to scheduled caste. The appellants/accused are persons who do not belong to scheduled caste or scheduled tribe. 5. The appellant/accused filed an application for anticipatory bail before the Special Court for the trial of SC/ST (POA) Act Cases, Kottarakkara. As per the impugned order, the learned Special Judge dismissed the aforesaid application holding that, a prima facie case is made out against the appellants for committing the offence under the Act and therefore, they are not entitled to get anticipatory bail in view of the bar contained in Sections 18 and 18A(2) of the Act. **CRL.A.No.23 OF 2020** **4** 6. Heard the learned counsel for the appellants and the learned Public Prosecutor. Though notice was served on the second respondent, he has not appeared. 7. Learned counsel for the appellants contended that the case against the appellants 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 appellants and therefore, the learned Special Judge has gone wrong in invoking Sections 18 and 18A(2) of the Act and declining the benefit of pre-arrest bail to the appellants. 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 appellants. 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 **CRL.A.No.23 OF 2020** **5** 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 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 appellants 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 **CRL.A.No.23 OF 2020** **6** statement that the first accused beat the de facto complainant with his hand and also with an iron rod and caused injury to him. There is also an averment in the first information statement that the second accused used obscene words to the annoyance of the de facto complainant and beat him with his hand. There is further averment in the first information statement that the third accused also beat the de facto complainant with his hand on various parts of his body. These allegations raised against the appellants, prima facie, attract the offences punishable under Sections 323 and 324 IPC. 14. 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. 15. The offences punishable under Sections 323 and 324 IPC are alleged against the appellants and these offences are prima facie made out from the allegations raised against the appellants. The offences punishable under Sections 323 and 324 IPC are mentioned in the Schedule of the Act. It follows that, prima facie, the allegations **CRL.A.No.23 OF 2020** **7** against the appellants also attract the offence punishable under Section 3(2)(va) of the Act. 16. 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 first information statement, prima facie, reveals that the appellants were aware of the fact that the de facto complainant was a person who belonged to scheduled caste. The first and the third accused had allegedly called the de facto complainant by his caste name. The second accused and the de facto complainant are persons who have got previous acquaintance with each other. In these circumstances, it cannot be found that the appellants/accused had no knowledge of the fact that the de facto complainant was a person who belonged to scheduled caste. 17. 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** ). **CRL.A.No.23 OF 2020** **8** 18. Since it is found that the offence punishable under Section 3(2)(va) of the Act is, prima facie, made out against the appellants/accused, it is not necessary to consider whether the offences punishable under Sections 3(1)(r) and 3(1)(s) of the Act are made out against him. 19. In the aforesaid circumstances, I find no illegality or impropriety in the impugned order passed by the learned Special Judge dismissing the application for anticipatory bail filed by the appellants. The appeal is liable to be dismissed. Consequently, the appeal is dismissed. **Sd/- R. NARAYANA PISHARADI JUDGE** ## **lsn** **CRL.A.No.23 OF 2020** **9** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A TRUE COPY OF THE WOUND CERTIFICATE OF THE FIRST PETITIONER. ANNEXURE B TRUE COPY OF THE MEDICAL CERTIFICATE OF WIFE OF THE FIRST PETITIONER. ANNEXURE C TRUE COPY OF FIR IN CRIME 1177/2019 OF CHAVARA POLICE STATION.** **RESPONDENTS EXHIBITS: NIL** **TRUE COPY** **P.A TO JUDGE** ## **LSN**