IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
FRIDAY, THE 8TH DAY OF SEPTEMBER 2023 / 17TH BHADRA, 1945
CRL.A NO. 1316 OF 2023
AGAINST THE ORDER IN CRL.MC 2216/2023 OF
SPECIAL/SESSIONS JUDGE FOR SCHEDULED CASTES AND
SCHEDULED TRIBES (POA)ACT,1989, ERNAKULAM
APPELLANT/PETITIONER/ACCUSED
THOMAS
AGED 61 YEARS
S/O VAREETH, THOPPIL HOUSE,
LAKSHAMVEEDU COLONY, EDAKUNNUKARA,
KARUKUTTY, ERNAKULAM, PIN - 683576
BY ADV ARUN BOSE
RESPONDENTS/RESPONDENTS/STATE AND DEFACTO COMPLAINANT
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM, PIN - 682018
2 THE STATION HOUSE OFFICER
ANKAMALY POLICE STATION, ANKAMALY (PO),
ERNAKULAM DISTRICT, PIN - 683572
3 LAKSHMI
AGED 56 YEARS
W/O CHANDRAN, PERATTU HOUSE,
LAKSHAMVEEDU COLONY, EDAKUNNUKARA,
KARUKUTTY, ERNAKULAM, PIN - 683576
BY SRI.M.P.PRASANTH, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION
ON 08.09.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Crl. A. No.1316/2023
:2:
N. NAGARESH, J.
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Criminal Appeal No.1316 of 2023
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Dated this the 8th day of September, 2023
JUDGMENT
~~~~~~~~~ The appellant, who is the sole accused in Crime No.534/2023 of Angamaly Police Station, seeks to pass an order granting anticipatory bail to him.
2. The appellant states that he is the sole accused in Crime No.534/2023 and the alleged offences are under Sections 447 and 448 IPC and Section 3(2)(va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The 3rd respondent-de facto complainant alleged that on 30.06.2023, the appellant trespassed into a room adjacent to the kitchen and on hearing hue and cry of the de facto complainant and her daughter, the wife of the appellant and others came to the Crl. A. No.1316/2023 :3: scene. The complainant alleged that the appellant humiliated the complainant by calling caste name and also assaulted her sexually and abused her verbally using lascivious comments against her. The appellant also intimidated the de facto complainant, it was alleged. The appellant states that he is innocent and has not committed any offence. Even the de facto complainant has no case that the appellant insulted her in public.
3. The petitioner therefore moved the Court of Session / Special Judge for Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 filing Crl.M.C. No.2216/2023 seeking anticipatory bail. The Sessions Judge, without properly appreciating the circumstances of the case, dismissed the bail application holding that there is a specific bar under Section 18 of the Act, 1989 against grant of anticipatory bail.
4. The appellant challenges the order dated 16.08.2023 in Crl.M.C. No.2216/2023. The counsel for the appellant argued that the order of the Sessions Court is Crl. A. No.1316/2023 :4: illegal and unsustainable. The appellant is willing to cooperate with the investigation proceedings and to abide by any conditions imposed by this Court for grant of anticipatory bail.
5. Relying on the judgment in Basheer K.M. And others v. Rajani K.T. and others [2022 (5) KLT 352], the counsel for the appellant submitted that this Court can entertain the appeal against the order dated 16.08.2023 and grant anticipatory bail to the appellant.
6. The counsel for the appellant also relied on the judgment in Arul P. Sugathan and others v. State of Kerala and another [2021 (2) KLT 34] wherein this Court has held that there is no absolute bar against grant of anticipatory bail, though the jurisdiction is to be exercised sparingly and only in very exceptional cases by High Court.
7. The Public Prosecutor entered appearance and resisted the Criminal Appeal. On behalf of the 1 st respondent, the Public Prosecutor stated that the allegations made by the de facto complainant against the appellant constituted grave Crl. A. No.1316/2023 :5: offences under the Indian Penal Code and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Section 18 of the Act, 1989 creates an embargo on the powers of any Court in the matter of grant of anticipatory bail as contemplated in Section 438 Cr.P.C. The appeal is therefore only to be dismissed, urged the Public Prosecutor.
8. I have heard the learned counsel for the appellant and the learned Public Prosecutor representing respondents 1 and 2.
9. It is alleged that the appellant with the knowledge that the de facto complainant belongs to Scheduled Caste, humiliated the complainant on 30.06.2023 by calling caste name and also assaulted the complainant sexually and abused her verbally using lascivious comments. The complaint discloses offences punishable under the IPC and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
10. Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Crl. A. No.1316/2023 :6: provides that nothing in Section 438 Cr.P.C. shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under the Act, 1989.
In view of the above, I am not inclined to grant anticipatory bail to the appellant. However, taking into consideration the facts of the case, the Criminal Appeal is disposed of directing that the appellant may surrender before the investigating officer within two weeks from today and in that case, the investigating officer can interrogate the appellant, effect recovery if any, and conduct the investigation and produce the appellant without delay before the court below concerned, where the appellant can move for bail. In such case, the learned Magistrate shall pass appropriate orders preferably on the same day itself, provided advance notice on such application has been given to the Assistant Public Prosecutor.
Sd/-
N. NAGARESH, JUDGE aks/12.09.2023 Crl. A. No.1316/2023 :7: APPENDIX OF CRL.A 1316/2023 PETITIONER'S ANNEXURES ANNEXURE A1 TRUE COPY OF THE FIR IN CRIME NO.534/2023 OF ANKAMALY POLICE STATION, ERNAKULAM DISTRICT ANNEXURE A2 TRUE COPY OF THE DISCHARGE SUMMARY ISSUED TO THE PETITIONER FROM THE LITTLE FLOWER HOSPITAL AT ANGAMALY ANNEXURE A3 TRUE COPY OF THE OUTPATIENT TICKET DATED 28.06.2023 ISSUED TO THE PETITIONER FROM THE FAMILY HEALTH CENTRE AT PALLISSERY ANNEXURE A4 CERTIFIED COPY OF THE ORDER DATED 16.08.2023 OF THE HON'BLE SPECIAL COURT FOR SC/ST (POA) ACT/PRINCIPAL SESSIONS COURT ERNAKULAM IN CRL.M.C. NO. 2216/2023 RESPONDENT ANNXURES : NIL