Bineesh.P.Babu vs State Of Kerala
2021 Latest Caselaw 515 Ker

         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

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

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

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

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

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

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