IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
THURSDAY, THE 07TH DAY OF JANUARY 2021 / 17TH POUSHA, 1942
CRL.A.No.823 OF 2019
CRMP 1449/2019 DATED 09-05-2019 OF SESSIONS COURT, KOTTAYAM
CRIME NO.1312/2018 OF Kumarakom Police Station , Kottayam
APPELLANT/S:
1 BINEESH.P.BABU
AGED 26 YEARS
S/O.BABU, PANDARAPATHIL HOUSE, KANJIRAM P.O.,
KOTTAYAM.
2 VISHNU.K.P.,
AGED 28 YEARS
S/O.PONNAPPAN, KUMBALANKERRY HOUSE, KANJIRAM
P.O., KOTTAYAM.
3 RAJANEESH.P.T.,
AGED 30 YEARS
S/O.THANKAPPAN, PALATHINKAL HOUSE, KANJIRAM
P.O., KOTTAYAM.
4 AJITH P.SASI,
AGED 23 YEARS
S/O.SASI, PALATHINKAL HOUSE, KANJIRAM P.O.,
KOTTAYAM.
5 AKHIL.K.V.,
AGED 26 YEARS
S/O.VIJAYAN, VADAKKECHIRA HOUSE, KANJIRAM P.O.,
KOTTAYAM.
BY ADVS.
SRI.T.P.PRADEEP
SRI.S.SREEDEV
SRI.P.K.SATHEES KUMAR
Crl.Appeal No.823 of 2019
2
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH
COURT OF KERALA, ERNAKULAM.
2 ADDL.R2 BIJI MOL P.K
NALLUVACKAL HOUSE, KILIROOR THIRUVAPPU,
KUMARAKOM, KANJIRAM P.O, KOTTAYAM.
IMPLEADED AS ADDITIONAL R2 AS PER ORDER DATED
19/11/2020 IN CRL.MA 1/2020.
R2 BY ADV. SRI.J.ABHILASH
OTHER PRESENT:
SR.PP.C.S.HRITHWIK
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15-
12-2020, THE COURT ON 07-01-2021 DELIVERED THE FOLLOWING:
Crl.Appeal No.823 of 2019
3
JUDGMENT
Dated this the 07th day of January, 2021 Appellants are the accused in Crime No.1312 Of 2018 registered at the Kumarakom Police Station for offences punishable under Sections 143, 147, 294(b), 323, 325, 341, 447 and 506(i) r/w 149 of IPC and Section 3(1)(r)(s) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 ('the SC/ST (PoA) Act' for short).
2. The prosecution allegation is that, at about 5.00 p.m. on 05.08.2018, the accused, with intention to cause bodily hurt to the de facto complainant's son (Jerin), formed themselves into an unlawful assembly armed with deadly weapons like chopper and iron rod and trespassed into the ancestral house of the de facto complainant/second respondent and assaulted Jerin. In spite of Jerin attempting to run away from the spot, he was Crl.Appeal No.823 of 2019 4 chased by the assailants and attacked brutally. When the de facto complainant tried to intervene, the accused caught hold of her churidar and attempted to disrobe her and abused the de facto complainant and Jerin, who belong to the Scheduled Caste, by calling their caste name. Even though appellants approached the Sessions Court seeking pre-arrest bail under Section 438, that application was dismissed by the impugned order. Hence, the appeal.
3. Heard Sri.T.P.Pradeep, learned Counsel for the appellants, Sri.C.S.Hrithwik, learned Senior Public Prosecutor and Sri.J.Abhilash, learned Counsel for the second respondent.
4. Learned Counsel for the appellants submitted that the allegations based on which crime is registered against the appellants, are patently false. It is submitted that Jerin and friends were found using drugs and consuming Crl.Appeal No.823 of 2019 5 alcohol in the first appellant's neighbourhood and when their action was questioned by the first appellant, Jerin and friends brutally attacked him. Since the first appellant suffered injuries at the hands of Jerin and friends, he was rushed to hospital. Enraged by the high handed action of Jerin and others, people of the locality, who had assembled at the spot, thrashed the assailants. Based on the first appellant's complaint, Crime No.838 of 2018 was registered at the Kumarakom Police Station against Jerin and others on 06.08.2018 itself for offences under Sections 341, 294(b), 323, 324, 308 r/w 34 of IPC. Crime No.1312 of 2018, at the instance of the second respondent was registered much later, that too on a private complaint filed by her being forwarded to the Police under Section 156(3) Cr.P.C. According to the learned Counsel, the inordinate delay in registering the FIR itself proves the falsity of Crl.Appeal No.823 of 2019 6 the allegations. The learned Counsel contended that these aspects, though pointed out before the learned Sessions Judge, were not taken into consideration. It is argued that the alleged crime having taken place on 05.08.2018, custodial interrogation of the appellants is not required and no purpose will be served by their arrest and remand to custody. Drawing attention to Annexure B certificate, it is submitted that the first appellant also belong to the Scheduled Caste and hence, cannot be prosecuted for offences under the SC/ST (PoA) Act.
5. The learned Public Prosecutor as well as the learned Counsel for the second respondent refuted the contentions and argued that the appellants are not entitled for pre-arrest bail in view of the prohibition contained in Section 18 of the SC/ST (PoA) Act. According to the learned Counsel for the second respondent, the appellants Crl.Appeal No.823 of 2019 7 had brutally attacked Jerin and in spite of the Police being informed, no crime was registered against them due to political intervention. The learned Counsel submitted that, even after registering the crime, the Police has not taken efforts to arrest the appellants. It is pointed out that Jerin had suffered fracture to his nasal bone and the Police ought to have incorporated the offence under Section 307 IPC also.
6. In reply, learned Counsel for the appellants submitted that Section 18 of the Act is not an absolute bar against grant of pre-arrest bail. In support of this contention, reliance is placed on the decision of this Court in Basheer v. State of Kerala [2020 (2) KLT 790]. Finally it is submitted that even if this Court is not inclined to grant pre-arrest bail, the appellants may be permitted to surrender and seek bail before the jurisdictional court.
Crl.Appeal No.823 of 2019 8
7. In spite of the strenuous arguments put forth by the learned Counsel for the appellants, I am of the firm opinion that this is not a case for granting anticipatory bail, especially in view of the embargo contained in Section 18 of the Act. The facts in Basheer are entirely different and therefore, the ratio of that decision cannot be made applicable to the instant case. At the same time, it has to be noted that serious offences are alleged against Jerin and others in Crime No.838 of 2018 registered against them at Kumarakom Police Station. Further, there is some merit in the contention that the instant crime was registered much after the alleged incident.
8. Therefore, while rejecting the challenge against the impugned order and the prayer for anticipatory bail to the appellants are permitted to surrender before the Sessions Court, Kottayam and to move an application for bail with advance Crl.Appeal No.823 of 2019 9 notice to the Public Prosecutor and the second respondent. In such event, the learned Sessions Judge may consider the bail application on the date of surrender and pass appropriate orders thereon.
The Criminal Appeal is dismissed with the above direction.
Sd/-
V.G.ARUN JUDGE Scl/07.01