IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
FRIDAY, THE 13TH DAY OF MAY 2022 / 23RD VAISAKHA, 1944
CRL.A NO. 762 OF 2020
AGAINST THE ORDER/JUDGMENT IN CRMC 1782/2020 OF PRINCIPAL &
SESSIONS COURT, ERNAKULAM
APPELLANT/PETITIONER/ACCUSED:
SHRADESH CHANDRA
AGED 57 YEARS
S/O SURESH CHANDRA VARMA, B44401 MES TYPE 5
QUARTERS, KATARIBAGH, NAVAL BASE KOCHI,
KOCHI-682 004.
BY ADVS.SRI.DEEPU THANKAN
SMT.UMMUL FIDA
SMT.LAKSHMI SREEDHAR
RESPONDENTS/RESPONDENT/STATE:
1 STATE OF KERALA
REPRESENTED BY SUB INSPECTOR OF POLICE, HARBOR
POLICE STATION, ERNAKULAM, REPRESENTED BY PUBLIC
PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM-682 031.
2 RAJALAXMI M.V,
W/O RAGHUNATH M, BSO, QUARTERS NO 53/2,
KATARIBAGH, NAVEL BASE, KOCHI-682 004.
BY ADVS.SHRI.SASI M.R.
SMT.DHARMYA M.S
SHRI.REGHU SREEDHARAN
THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON
30.11.2021, THE COURT ON 13.05.2022 DELIVERED THE
FOLLOWING:
Crl.A. No. 762 of 2020
-:2:-
MARY JOSEPH, J.
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Crl.A. No. 762 of 2020
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Dated this the 13th day of May, 2022
JUDGMENT
This appeal is originated from an order passed by Principal Court of Sessions, Ernakulam on 25.09.2020 in Crl.M.C No.1782 of 2020 in Crime No.509/2020 of Harbour Police Station, Ernakulam. The appellant is the accused in the above crime registered for offences punishable under Sections 354 A(1)(ii) & 354 D(1)(i) of Indian Penal Code, 1860 and Sections 3(1)(s) and 3(1)(w)(i) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'SC/ST(POA) Act').
2. Crl.M.C. No.1782 of 2020 was filed by the appellant before the Court of Sessions, Ernakulam seeking for pre-arrest bail under Section 438 of Code of Criminal Procedure, 1973 (for short 'Cr.P.C'). Court of Sessions, Ernakulam found that prima facie case is not made out against the appellant with respect to the offence under Section 3(1)(s) incorporated in the crime registered against them but ingredients are there in the Crl.A. No. 762 of 2020 -:3:- allegations described in the FIS of the defacto complainant to attract commission of non-bailable offence under Section 3(1)(w)
(i) of SC/ST (POA) Act. Accordingly, Crl.M.C was dismissed by the court below.
3. Sri.Deepu Thankan, learned counsel for the appellant has submitted that the appellant is the Commander Works Engineer (CWE) in Military Engineer Services at Naval Base, Kochi and the defacto complainant is a Barrack Store Officer (BSO), working under him. According to him, the court below is highly unjustified in declining to grant pre-arrest bail to the appellant. The learned counsel has invited the Court's attention to copies of some documents produced alongwith the appeal on hand which includes a complaint filed by the defacto complainant before the Internal Complaint Committee constituted under the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. It is contended on the basis of the said complaint and events followed, evidenced from other materials accompanying the appeal on hand that the allegation of the complainant were found baseless by the Committee. According to the learned counsel, on a scrutiny and Crl.A. No. 762 of 2020 -:4:- comparison of the copy of the aforesaid complaint with the complaint lodged by the complainant to prosecute the appellant in the case on hand, it is found that the necessary ingredients to attract the offences under SC/ST(POA) Act were added subsequently. According to him, the exaggerated version of the incident in the complaint on hand is only the outcome of an after thought of the defacto complainant, with a view to make the offences proposed attracted. According to the learned counsel the date of the incident alleged by the complainant in the complaint filed before the Committee as well as that filed before the Court are one and the same but the actual facts have been modified in a manner to appear as if all the offences are attracted. It is further contended by the learned counsel that by modifying the allegations in the complaint lodged before the Court, the complainant has become instrumental for foisting a new case which was not known to her prior. According to the learned counsel, the falsity in the complaint lodged before the Court can very well be identified and brought to light on comparing the allegations in the complaint filed before the Committee and the one on hand. According to the learned Crl.A. No. 762 of 2020 -:5:- counsel after closure of the proceedings before the Committee in her disfavour that the complaint on hand was preferred by the complainant with a view to launch the prosecution that incorporates offences under the IPC and also under the SC/ST(POA) Act. The malafide intention of the complainant to harass the appellant is very much evident from the documents produced alongwith the appeal on hand. According to the learned counsel, the court below is highly unjustified in dismissing the application filed by the appellant under Section 438 Cr.P.C and declining to grant pre-arrest bail to him by the impugned order.
4. The learned counsel for the respondent has contended on the contrary that the court below has passed the order truly and correctly and it does not suffer on any of the grounds, viz., illegality, impropriety or infirmity. According to him, a prima facie case is made out from the allegations in the complaint. According to him, the allegations are sufficient and satisfactory to attract the offences allegedly committed by the appellant under the SC/ST(POA) Act. Therefore, the court below has rightly dismissed the application and declined to grant pre-arrest bail to Crl.A. No. 762 of 2020 -:6:- the appellant on the basis of the bar under Sections 18 and 18 A of SC/ST (POA) Act against invocation of jurisdiction under Section 438 Cr.P.C.
5. According to the learned counsel, various documents, copies of which are produced by him are sufficient to draw a conclusion that the complainant was a lady having integrity and indepth knowledge in the work assigned to her. According to him, the appellant had misbehaved and also made comments involving sex at her. According to him, on a comparison of the complaints, incidents wherefrom the cause of action originates are common. According to him, some inconsistencies can be noticed from the allegations raised in the complaint lodged first in point of time before the Committee and the one lodged with a view to register a crime against the petitioner. According to him, a consideration of bail application on the basis of allegations raised in another complaint as part of disciplinary proceedings is out of jurisdiction of this Court. According to him, the consideration of extraneous matters are uncalled for when the appeal challenging the order declining pre-arrest bail to the petitioner, is under consideration.
Crl.A. No. 762 of 2020 -:7:-
6. True that inconsistencies are there in the allegations made in the complaint filed before the Committee and also before the Court but the incidents that formed the foundation for raising allegations against the petitioner are common. But, the proceedings on hand being appeal, the legality, propriety and infirmity of the order alone this Court is called upon to consider based on the materials available in the prosecution on hand and consideration of extraneous materials are out of appellate jurisdiction of the court. The court below upon a consideration of the allegation raised by the prosecution observed that offence under Section 3(1)(s) was not prima facie attracted. But in the view of the court below allegations incorporated in the complaint would prima facie attract offence under Section 3(1)(w)(i) of the SC/ST (POA) Act allegedly committed by the appellant.
7. Documents are only produced before this Court alongwith the appeal on hand and those were not available for the court below for its consideration while passing the impugned order. Documents being produced for the first time in the appeal and a consideration on illegality, impropriety and infirmity of the order assailed on the basis of those is impermissible in exercise of Crl.A. No. 762 of 2020 -:8:- appellate jurisdiction. The documents now produced may have a role to play in the investigation to be held. The petitioner had approached this Court immediately on registration of crime against him and dismissal of application seeking pre-arrest bail. The investigation was stayed by this Court when the order of dismissal of application seeking pre-arrest bail was assailed in the appeal on hand. Going by the copy of the complaint produced alongwith the appeal on hand this Court also notices that allegations to prima facie attract commission of offences under the SC/ST (POA) Act are there in the complaint.
8. In the above circumstances, interference with the impugned order is uncalled for.
Appeal fails for the reasons and is dismissed.
Sd/-
MARY JOSEPH, JUDGE.
ttb Crl.A. No. 762 of 2020 -:9:- APPENDIX OF CRL.A 762/2020 APPELLANT'S ANNEXURES :
ANNEXURE A1 TRUE COPY OF THE F.I.R IN CRIME NO 509/2009 ALONG WITH THE FIRST INFORMATION REPORT ANNEXURE A2 TRUE COPY OF THE COMPLAINT SUBMITTED BY THE DEFACTO COMPLAINANT BEFORE THE INTERNAL COMPLAINT COMMITTEE DATED 27.7.2020 ALONG WITH THE COMMUNICATION DATED 14.8.2020 OF THE INTERNAL COMPLAINT COMMITTEE ANNEXURE A3 TRUE COPY OF THE REPLY SUBMITTED TO THE INTERNAL COMPLAINT COMMITTEE DATED 28.8.2020 ANNEXURE A4 TRUE COPY OF THE ADDITIONAL REPLY DATED 9.9.2020 ANNEXURE A5 TRUE COPY OF THE JUDGMENT DATED 14.9.2020 I BA 6 NO 5376/2020 BY THE HON'BLE COURT OF KERALA ANNEXURE A6 TRUE COPY OF THE INQUIRY REPORT OF THE ICC DATED 24.9.2020 ANNEXURE A7 CERTIFIED COPY OF THE ORDER IN CRL MC NO 1782 OF 2020 OF THE COURT OF THE PRINCIPAL SESSIONS COURT, ERNAKULAM DATED 25.9.2020 ANNEXURE A8 TRUE COPY OF THE WARNING LETTER ISSUED TO THE DEFACTO COMPLAINT BY HER IMMEDIATE SUPERIOR OFFICER ANNEXURE A9 TRUE COPY OF THE WARNING LETTER ISSUED TO THE DEFACTO COMPLAINT BY HER IMMEDIATE SUPERIOR OFFICER ANNEXURE A10 TRUE COPY OF THE WARNING LETTER ISSUED TO THE DEFACTO COMPLAINT BY HER IMMEDIATE SUPERIOR OFFICER ANNEXURE A11 TRUE COPY OF THE WARNING LETTER ISSUED TO THE DEFACTO COMPLAINT BY HER IMMEDIATE SUPERIOR OFFICER //TRUE COPY// Sd/-
P.S. TO JUDGE