Pratheesh R. @ Pratheesh ... vs State Of Kerala
2021 Latest Caselaw 6536 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT

          THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR

   WEDNESDAY, THE 24TH DAY OF FEBRUARY 2021 / 5TH PHALGUNA, 1942

                       CRL.A.No.9 OF 2021

        AGAINST THE ORDER/JUDGMENT IN CRMC 2355/2020
 DATED 24-12-2020 OF PRINCIPAL SESSIONS COURT, ERNAKULAM

  CRIME NO.2036/2020 OF Ernakulam Central Police Station ,
                          Ernakulam


APPELLANT/S:

      1        PRATHEESH R. @ PRATHEESH VISWANATH
               AGED 39 YEARS,
               S/O.VISWANATHAN NAIR, MURINGOOR VALIYAKALAYIL
               (H), NALIKALIKKAD P.O., ARANMULA,
               PATHANAMTHITTA DISTRICT, PIN - 689 533.

      2        C.C.RAJAGOPAL
               AGED 47 YEARS
               S/O.C.S.GOPINATHAN, CHERTHEDATH (H),
               VATTAKKATTU ROAD, KALOOR P.O.,
               COCHIN, PIN - 682 017.

               BY ADV. SRI.C.S.MANU

RESPONDENT/S:

      1        STATE OF KERALA
               REPRESENTED BY THE PUBLIC PROSECUTOR, HON'BLE
               HIGH COURT, ERNAKULAM DISTRICT, PIN - 682 011.

      2        SUB INSPECTOR OF POLICE
               ERNAKULAM CENTRAL POLICE STATION, ERNAKULAM
               DISTRICT, PIN - 683 104 (NOTICE TO WHOM MAY BE
               SERVED ON THE PUBLIC PROSECUTOR, HON'BLE HIGH
               COURT, ERNAKULAM DISTRICT, PIN - 682 011).
                             -: 2 :-

CRL.A.No.9 OF 2021

      3     BINDU AMMINI,
            AGED 42 YEARS
            W/O.HARIHARAN, NILAVEEYYIL, THOOVAKKADPARAMBIL,
            CHENGOTTUKAVU VILLAGE, KOYILANDI THALUK,
            KOZHIKODE, PIN - 673 304.

            R3 BY ADV. SRI.U.JAYAKRISHNAN

OTHER PRESENT:

            SRI.K.B. UDAYAKUMAR, SR.PUBLIC PROSECUTOR

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
24.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
                             -: 3 :-

CRL.A.No.9 OF 2021

                       JUDGMENT

The appellants are accused Nos.2 and 3 in Crime

No.2036 of 2019 of Central Police Station, Ernakulam.

2. The prosecution case can be summarised as

follows:

The victim is a guest lecturer in a Government law

college. She is an activist. The appellants are supporters of

RSS/BJP. The victim along with Mrs.Tripthi Desai and

four others, who are activists in the organisation, namely,

Bhumatha Brigade came to the office of the Commissioner

of Police, Ernakulam City, for getting police protection for

the purpose of proceeding to the Sabarimala Temple on

26.11.2019. The appellants and many Hindu organisations

assembled there to protest against the visit of the activists

CRL.A.No.9 OF 2021

to Sabarimala Temple. While so, at about 7.45 p.m., the

first accused applied chilly spray on the face and body of

the victim, in furtherance of the common intention of all

the accused. The victim is a member of Scheduled Caste.

The appellants do not belong to the said community.

3. The crime was originally registered for the offence

punishable under Sections 324 read with Section 34 IPC.

During the course of investigation, the offences under

Sections 326B and 354 IPC and Sections 3(2)(v) and 3(2)

(va) of the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, 1989 (for short 'the Act')

were added to the Section of offences.

4. The appellants filed application before the court

below praying for the relief under Section 438 Cr.P.C. The

court below dismissed the said application, against which

CRL.A.No.9 OF 2021

this appeal has been filed.

5. Heard the learned counsel for the appellants, the

learned counsel for the victim and the learned Public

Prosecutor. Perused the case diary.

6. The audio-visual Compact Disc, which was

handed over to the police by the victim herself, is appended

to the case diary. The said Compact Disc was played in the

chamber in the presence of the learned counsel for the

appellants, the learned counsel for the victim and the

learned Public Prosecutor.

7. The learned counsel for the appellants has argued

that since the allegations against the appellants are prima

facie malafide, the bar under Section 18 of the Act is not

applicable in this case and consequently, the appellants are

entitled to be granted the relief under Section 438 Cr.P.C.

CRL.A.No.9 OF 2021

On the other hand, the learned counsel for the victim has

argued that since there is express bar under Sections 18 and

18 A of the Act to entertain an application under Section

438 Cr.P.C., this Court has no jurisdiction in this case to

grant the relief under Section 438 Cr.P.C. to the appellants,

particularly when there are allegations against the

appellants constituting the offences under the Act. The

learned Public Prosecutor has also supported the argument

of the learned counsel for the victim.

8. The first question to be considered is as to whether

there is absolute bar against the grant of anticipatory bail in

cases under the Act. In order to consider the above

question, it will be profitable to go through the provisions

of Sections 18 and 18A of the Act. Section 18 of the Act is

extracted hereunder:-

CRL.A.No.9 OF 2021

"18. Section 438 of the Code not to apply to persons committing an offence under the Act.- 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 this Act."

Section 18A of the Act is extracted hereunder:-

"18-A. No enquiry or approval required.-(1) For the purposes of this Act,-

(a) preliminary enquiry shall not be required for registration of a First Information Report against any person; or

(b) the investigating officer shall not require approval for the arrest, if necessary, of any person,

against whom an accusation of having committed an offence under this Act has been made and no procedure other than that provided under this Act or

CRL.A.No.9 OF 2021

the Code shall apply.

(2) The provisions of section 438 of the Code shall not apply to a case under this Act, notwithstanding any judgment or order or direction of any Court."

9. The Hon'ble Apex Court considered the object

and purpose of Section 18 of the Act in detail and held in

paragraph 83 in Subhash Kashinath Mahajan v. State of

Maharashtra [2018 (2) KLT 33 (SC)] thus:-

"83. Our conclusions are as follows:

i) Proceedings in the present case are clear abuse of process of court and are quashed.

ii) There is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be

CRL.A.No.9 OF 2021

prima facie mala fide. We approve the view taken and approach of the Gujarat High Court in Pankaj D Suthar (supra) and Dr.N.T. Desai (supra) and clarify the judgments of this Court in Balothia (supra) and Manju Devi (supra);

iii) In view of acknowledged abuse of law of arrest in cases under the Atrocities Act, arrest of a public servant can only be after approval of the appointing authority and of a non-public servant after approval by the S.S.P. which may be granted in appropriate cases if considered necessary for reasons recorded. Such reasons must be scrutinized by the Magistrate for permitting further detention.

iv) To avoid false implication of an innocent, a preliminary enquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the Atrocities Act and that

CRL.A.No.9 OF 2021

the allegations are not frivolous or motivated.

v) Any violation of direction (iii) and (iv) will be actionable by way of disciplinary action as well as contempt.

The above directions are prospective."

10. Thereafter review petition was filed by the Union

of India for reviewing the judgment in Subhash Kashinath

(supra). The Three Judge Bench of the Apex Court in

Union of India v. State of Maharashtra and Others [2019(5)

KHC 57 (SC)] reviewed the judgment in Subhash

Kashinath (supra) and held in paragraph 67 thus:-

"Resultantly, we are of the considered opinion that direction Nos.(iii) and (iv) issued by this Court deserve to be and are hereby recalled and consequently we hold that direction No.

(v) also vanishes."

CRL.A.No.9 OF 2021

It appears from Union of India (supra) that the Apex Court did not recall conclusion No.(ii) made in Subhash Kashinath (supra).

11. Section 18 A (1) was inserted owing to the

direction of the Hon'ble Apex Court in Subhash Kashinath

(surpa), which made it necessary to conduct a preliminary

enquiry to avoid false implication of an innocent and also

to obtain the approval of the appointing authority

concerning a public servant and the S.S.P in the case of

arrest of the other accused persons. The Hon'ble Apex

Court recalled the said direction as per the decision in

Union of India (supra).

12. The Three Judge Bench of the Apex Court in

Prithvi Raj Chauhan v. Union of India (UOI) and Others

[2020 (2) KHC 423] held that the provisions which had

CRL.A.No.9 OF 2021

been made in Section 18 A were rendered of academic use

as they were enacted to take care of the mandate issued in

Subhash Kashinath (supra), which no more prevails. The

provisions were already there in Section 18 of the Act with

respect to anticipatory bail.

13. The Apex Court in Prithvi Raj Chauhan (supra)

further held that if the complaint does not make out a

prima facie case for the applicability of the provisions of

the Act, the bar created by Sections 18 and 18 A shall not

apply.

15. As already mentioned above, Section 18 A was

inserted owing to direction Nos.3 and 4 issued in Subhash

Kashinath (supra). However, the Apex Court as per the

decision in Union of India (supra) recalled direction Nos.3

CRL.A.No.9 OF 2021

and 4 issued in Subhash Kashinath (supra). Since direction

No.2 was not recalled, the said direction holds the field

even now. Therefore, there is no absolute bar against grant

of anticipatory bail in cases under the Act if no prima facie

case is made out or where on judicial scrutiny the

complaint is found to be prima facie mala fide.

16. In the concurring judgment in Prithvi Raj

Chauhan (supra), His Lordship Justice S. Ravindra Bhat

held in paragraph 32.(20) thus:-

"I would only add a caveat with the observation and emphasize that while considering any application seeking pre-arrest bail, the High Court has to balance the two interests: i.e. that the power is not so used as to convert the jurisdiction into that under S.438 of the Criminal Procedure Code, but that it is used sparingly and such orders made

CRL.A.No.9 OF 2021

in very exceptional cases where no prima facie offence is made out as shown in the FIR, and further also that if such orders are not made in those classes of cases, the result would inevitably be a miscarriage of justice or abuse of process of law".

17. This Court in Arul P. Sugathan and others v. State

of Kerala and another [2021(1) KHC 126] followed the

above decisions of the Hon'ble Apex Court and held in

paragraph No.15 thus:-

"15. The above discussion would make it clear that there is no absolute bar against the grant of anticipatory bail in cases under the Act.

However, the said jurisdiction shall be exercised sparingly and only in very exceptional cases by the High Court. Where the court finds that no prima facie case is made out or where on judicial

CRL.A.No.9 OF 2021

scrutiny, the court finds that the complaint is prima facie malafide, the court will be justified in passing an order granting pre-arrest bail, if the Court is further satisfied that if the pre-arrest bail is not granted in the case, the result would inevitably be miscarriage of justice or abuse of process of law."

18. It is clear from the above discussion that

eventhough there is no absolute bar against the grant of

anticipatory bail in cases under the Act, the said jurisdiction

shall be exercised sparingly and only in very exceptional

cases by the High Court. Where the High Court finds that

no prima facie case is made out or where on judicial

scrutiny, the court finds that the complaint is prima facie

malafide, the High Court will be justified in passing an

CRL.A.No.9 OF 2021

order granting pre-arrest bail if the Court is further satisfied

that if the pre-arrest bail is not granted, the result would

inevitably be miscarriage of justice or abuse of process of

law.

19. The next question to be considered is as to

whether the present case falls under any of the said

categories of cases or not.

20. It is not disputed that the entry of women activists

to Sabarimala Temple was a controversial issue during the

relevant period. It is also not disputed that in the said issue,

the Government of Kerala was on one side and the

RSS/BJP and many Hindu organisations were on the other

side. The RSS/BJP and many Hindu organisations made

protest against the entry of activist women to Sabarimala

Temple. However, the Government of Kerala supported the

CRL.A.No.9 OF 2021

entry of activist women to Sabarimala Temple. It is

admitted that the victim is an activist and not a devotee.

The appellants are admittedly supporters of RSS/BJP. The

argument of the learned counsel for the appellants that the

allegations against the appellants are malafide, will be

considered by this Court in the light of the above facts.

21. The gist of the allegation in the FIR is that on

26.11.2019 at about 7.30 a.m., the accused Nos. 1 to 5

approached the victim chanting 'Ayyappa hymn' and one of

the accused persons applied chilly spray on the face and

body of the victim.

22. The above FIR was registered on the basis of the

statement given by the victim on the same day at about 9.45

am. As per the F.I. statement, the victim is an activist

woman. She, along with Mrs.Tripthi Desai and four others,

CRL.A.No.9 OF 2021

who are also activists, reached the office of the

Commissioner of of Police, Ernakulam City, for getting

police protection for the purpose of proceeding to the

Sabarimala Temple on 26.11.2019 at about 7.30 a.m.

Since the police was not ready to provide protection, the

victim proceeded near to her car for collecting the certified

copy of the order of the Supreme Court. At that time,

around five persons came near to her chanting 'Ayyappa

hymn' and one among them applied some chemical spray

on the face of the victim.

23. The victim was again questioned on the very same

day at the hospital by the Investigating Officer. At that

time, the victim stated that RSS people, when she

attempted to take the order of the Supreme Court from the

car, approached her chanting 'Ayyappa hymn' and touched

CRL.A.No.9 OF 2021

her body in the presence of public and humiliated her by

calling 'Urban Naxal'. The victim added that she could not

state the Police about the said incident at the time when

she had given the statement in the morning.

24. Eventhough the victim had stated in the F.I.

statement that the appellants along with the first accused

came near to the victim chanting 'Ayyappa hymn' and at

that time, the first accused applied some chemical spray on

the face and body of the victim, none of the witnesses so

far questioned by the Investigating officer stated about the

presence of the first accused with the appellants at any

point of time. The audio-visual Compact Disc produced

along with the case diary also does not support the

allegation of the victim that the appellants came near to the

victim along with the first accused. In the statement given

CRL.A.No.9 OF 2021

by the victim under Section 164 Cr.P.C., she did not state

that the appellants came near to the victim along with the

first accused.

25. The Investigating officer is present in the Court.

The Investigating Officer has submitted through the

learned Public Prosecutor that no visual is available

showing the presence of the first accused with the

appellants at any point of time prior to or subsequent to the

incident, even though the appellants and many Hindu

organisations, who opposed the entry of activist women to

Sabarimala Temple, assembled there to protest against the

visit of the activist women to Sabarimala Temple.

26. The learned counsel for the victim has submitted

that the incident was recorded in the video only by the

accused and no other person and hence no visual is

CRL.A.No.9 OF 2021

available showing the presence of the first accused with the

other accused. The statement of the victim herself would

show that so many media persons were present at the scene.

The victim had stated before the learned Magistrate under

Section 164 Cr.P.C. that the victim herself had reached the

place in a car belonging to one of the media institutions.

However, no visual is available showing the presence of the

first accused with the appellants. The audio-visual

Compact Disc, which was handed over to the police by the

victim herself, had been played in the presence of the

learned counsel for the appellants, the learned counsel for

the victim and the learned Public Prosecutor, which would

show that the first accused alone came near to the victim

and applied some spray on her face and body. No other

person was seen near to the first accused at that time. In her

CRL.A.No.9 OF 2021

statement under Section 164 Cr.P.C., the victim did not

state that the appellants came near to the victim along with

the first accused. On the other hand, the victim clearly

stated in her statement under Section 164 Cr.P.C. that the

first accused alone came near to her and applied chemical

spray on her face and body.

27. When the victim had given the second statement

to the Investigating Officer, she had stated that the

appellants and the other accused approached her chanting

'Ayyappa hymn' and touched her body in the presence of

the Public. The appellants and the other accused had also

humiliated her by calling her 'Urban Naxal'. The audio-

visual Compact disc produced along with the case diary

also does not support the allegation of the victim that the

appellants touched her body or humiliated her by calling

CRL.A.No.9 OF 2021

her 'Urban Naxal'. The victim had given statement under

Section 164 Cr.P.C. before the learned Magistrate on

15.2.2020. In the said statement, the victim did not state

that the appellants touched her body or humiliated her by

calling her 'Urban Naxal'. So many witnesses were

questioned by the Police. The police also recorded their

statements. In the said statements also, none of the

witnesses stated that the appellants had touched the body

of the victim or humiliated the victim by calling her 'Urban

Naxal'. It is true that all the witnesses stated about the

involvement of the first accused.

28. It is clear from the statement of the victim

recorded under Section 164 Cr.P.C. that the incident

occurred in the presence of media persons. In view of the

above, the submission of the learned Counsel for the victim

CRL.A.No.9 OF 2021

that the accused persons alone videographed the incident

and no media person had videographed the incident, cannot

be correct. The victim had stated that the videograph

showing the act of the first accused was uploaded and

circulated by the other accused persons through social

media. The victim also stated that the accused persons had

recorded the videograph as already decided by them. It

appears from the audio-visual Compact Disc produced

along with the case diary that the appellants and many

other people gathered near to the victim and talked to her

immediately after the incident. However, the victim did

not accuse the appellants at that time. None of the

witnesses, whose statement was recorded by the police,

also did not mention about the involvement of the

appellants in the incident. From the statement of the victim

CRL.A.No.9 OF 2021

recorded under Section 164 Cr.P.C., it appears that the

second appellant was a candidate in the election to the

Kerala Legislative Assembly. Even then, no person who

witnessed the incident could identify the second appellant

upto this date. The first appellant is a practising lawyer in

Ernakulam. He is also one of the leaders of RSS/BJP.

However, he is also not identified as one of the assailants

in this case by any of the independent witnesses till date.

The victim also could not identify the appellants till she

had given statement under Section 164 Cr.P.C.

before the court. The appellants were made as accused

in this case only on 12.10.2020, which was nearly

after eleven months from the date of incident.

29. Admittedly, the first appellant is a lawyer

practising in Ernakulam and the second appellant was a

CRL.A.No.9 OF 2021

BJP candidate in the last election for the Kerala

Legislative Assembly in Ernakulam constituency. Both

of them are supporters and leaders of RSS/BJP. Both

the appellants are admittedly public figures. Even then,

the appellants could not be identified by the victim for a

long period.

30. The victim was admittedly an activist and not a

devotee. The RSS/BJP and many Hindu organizations

opposed the entry of activist women to Sabarimala Temple.

In her statement under Section 164 Cr.P.C., the victim did

not state that the appellants came near to the victim along

with the first accused or touched her body or humiliated

her by calling her 'Urban Naxal' as stated by her before the

police. On the other hand, the victim clearly stated in her

statement under Section 164 Cr.P.C. that the first accused

CRL.A.No.9 OF 2021

alone came near to her and applied chemical spray on her

face and body. Thus it appears that the victim did not raise

any allegation against the appellants when she had given a

detailed statement about the incident under Section 164

Cr.P.C. The victim is an educated lady. She is admittedly

working as a guest lecturer in a Government Law College.

Therefore, the said statement given by the victim under

Section 164 Cr.P.C. assumes significance. Neither the

audio-visual Compact Disc appended to the case diary nor

the statement of witnesses recorded by the police supported

the allegations raised by the victim against the appellants

before the police. When viewed the above facts in the light

of the admitted fact that the appellants are

leaders/supporters of RSS/BJP, who opposed the entry of

CRL.A.No.9 OF 2021

women activists to Sabarimala Temple, it appears that the

allegations raised against the appellants by the victim

before the police are prima facie tainted with malafides.

Thus, on a judicial scrutiny of the materials, it appears that

the allegations against the appellants are primafacie

malafide.

31.Considering the facts and circumstances of the

case, I am of the considered view that if pre-arrest bail is

not granted to the appellants, the result would inevitably be

abuse of process of law. In the said circumstances, the

appellants are entitled to pre-arrest bail. For the said

reason, the order impugned cannot be sustained.

In the result, this appeal stands allowed, setting

aside the order impugned and the arresting officer is

directed to release the appellants on bail in the event of

CRL.A.No.9 OF 2021

their arrest in connection with Crime No.2036/2019 of

Central Police Station, Ernakulam, on condition of each of

the appellants executing a bond for Rs.50,000/- (Rupees

Fifty Thousand Only) each with two solvent sureties each,

each for the like sum to the satisfaction of the Investigating

Officer, before whom the appellants shall surrender within

fifteen working days, if not arrested in the meantime and

subject to the following further conditions:

(i) The appellants shall report before the Investigating Officer as and when required by the Investigating Officer for interrogation.

(ii) The appellants shall not intimidate or influence the witnesses or in any way tamper with the investigation.

(iii) The appellants shall co-operate with the

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investigation.

I make it clear that no observation in this judgement

shall be construed as expression on merits as the

observation, if any, made in this judgment was only for

the purpose of disposing of this appeal.

Sd/-B. SUDHEENDRA KUMAR, JUDGE.

dl/ani

/true copy/

P.S. to Judge