Jojomon Kurian vs The State Of Kerala
2021 Latest Caselaw 21841 Ker

                    IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                     PRESENT

                    THE HONOURABLE MRS. JUSTICE MARY JOSEPH

         WEDNESDAY, THE 3RD DAY OF NOVEMBER 2021 / 12TH KARTHIKA, 1943

                             CRL.A NO. 247 OF 2021
  AGAINST THE ORDER IN CRL.MP NO.168/2021 OF SPECIAL COURT FOR SC/ST(POA) ACT,
                                   MANNARKKAD
         CRIME NO.60 OF 2021 OF AGALY POLICE STATION, PALAKKAD DISTRICT

APPELLANTS/ACCUSED NOS.1 TO 6:-

     1       JOJOMON KURIAN,AGED 44 YEARS,
             S/O.M.U. KURIAN, MELEPARAMBIL HOUSE, KALLAMALA POST, MANNARKKAD
             TALUK, PALAKKAD DISTRICT.

     2       REJI MATHEW @ REJIKUTTAN,AGED 35 YEARS,
             S/O. MATHAI, CHITTALAKKATTU HOUSE, KALLAMALA POST, MANNARKKAD
             TALUK, PALAKKAD DISTRICT.

     3       SHIJO THOMAS,AGED 33 YEARS,
             S/O.K.J.THOMAS,
             KALLADAYIL HOUSE,
             KALLAMALA POST, MANNARKKAD TALUK, PALAKKAD DISTRICT.

     4       GEORGE P.K.,AGED 32 YEARS,
             S/O. KURIAN,
             PANDIKKAD HOUSE,
             KALLAMALA POST, MANNARKKAD TALUK, PALAKKAD DISTRICT.

     5       LIJO @ KUTTAN,AGED 35 YEARS,
             C/O. LINIYA, PANDIKKAD HOUSE,
             KALLAMALA POST, MANNARKKAD TALUK, PALAKKAD DISTRICT.

     6       TIJO P.T.,AGED 30 YEARS,
             S/O. TOMY P.K.,
             PANDIKKAD HOUSE,
             KALLAMALA POST, MANNARKKAD TALUK, PALAKKAD DISTRICT.

             BY ADV SRI.P.MARTIN JOSE


RESPONDENTS/STATE AND COMPLAINANT:

     1       THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA, ERNAKULAM-682 031.

     2       THE STATION HOUSE OFFICER,
             AGALY POLICE STATION, PALAKKAD-678 581.

     3       SMT. SINDHU,AGED 31 YEARS,
             W/O. VIJEESH, RESIDING AT KALLAMALA OORU, KALLAMALA, AGALI,
             PALAKKAD-678 582.


             BY SENIOR PUBLIC PROSECUTOR SMT.T.V.NEEMA



THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03.11.2021, THE    COURT ON THE

SAME DAY DELIVERED THE FOLLOWING:
 Crl.Appeal No. 247 of 2021
                                 -:2:-



                              JUDGMENT

Dated this the 3rd day of November, 2021

This appeal is filed against an order passed by Special Court

for SC/ST (POA) Act, Mannarkkad (for short 'the court below') in

Crl.M.P.No. 168/2021 in Crime No.60/2021 of Agali Police Station.

Petitioners are accused in the said crime and the offences alleged

against them are those punishable under Sections 143, 147,148,

341,323, 324, 294(b) and 506 r/w Section 149 of Indian Penal

Code (for short 'IPC') and Sections 3(1)(s), 3(2)(va) of Scheduled

Castes and Scheduled Tribes (Prevention of Atrocities Act), 1989

(for short SC/ST(POA) Act). The crime was registered on

05.03.2021 on the basis of a written complaint filed by the defacto

complainant before the Agali Police Station. According to the

petitioners, the allegations raised in the complaint being false,

application seeking pre-arrest bail was moved before the court

below, but by order assailed in the appeal on hand it was

dismissed.

Crl.Appeal No. 247 of 2021

2. The court below on being convinced of a prima facie

case and lack of jurisdiction under Section 438 of the Code of

Criminal Procedure (for short, 'Cr.P.C') declined to entertain an

application for pre-arrest bail in view of the statutory bar contained

in Sections 18 and 18A SC/ST (POA) Act and dismissed the

application.

3. According to Sri.P.Martin Jose, the learned counsel for

the appellants Crime No.60/2021 was registered at the instance of

the defacto complainant and is a totally false one. According to him

the 1st appellant had filed a petition at Agali Police Station on

03.03.2021 stating that the defacto complainant alongwith another

man named Binu had telephoned him seventeen times, in the odd

hours of night and abused him. On 05.03.2021 FIS was lodged by

the defacto complainant alleging that the petitioners alongwith

some others called her caste name and also assaulted and abused

her. According to him the FIS was lodged by the respondent on

05.03.2021, the immediately succeeding date after filing of a

petition before the police by him, cannot be taken as a true one.

According to him the allegations raised in the FIS being totally false Crl.Appeal No. 247 of 2021

and concocted, the court below is unjustified in declining to grant

pre arrest bail to the petitioners.

4. The learned Public Prosecutor was directed to file a

report after obtaining instructions from the Investigating Officer.

Accordingly a report was filed and it is revealed therefrom that a

petition was filed by the 1st appellant before the Agali Police Station,

following which the parties were called to the Police Station and

there, each of them had undertaken that they will not act to harm

each other. After the issues being settled that the defacto

complainant lodged the FIS and got Crime No.60/2021 registered at

Agali Police Station itself. During investigation it was brought out

that Accused Nos. 1 to 6 have committed an offence against a

women in front of her children belonging to ST Muduka Community.

5. The learned Public Prosecutor has submitted that

investigation is concluded and the Investigating Agency has

prepared a final report which is ready for filing before the court.

According to him, the pendency of this appeal alone stands in the

way of filing of the final report.

Crl.Appeal No. 247 of 2021

6. This Court has also gone through the materials available

and found that a prima facie case exists and therefore the bar

under Sections 18 and 18A of SC/ST (POA) Act also operates

against exercise of jurisdiction. Therefore, there is absolutely no

scope for interfering with the order assailed. Criminal Appeal fails

for the reasons and is dismissed.

The appellants on filing of the Final Report before the court

below can surrender and apply for regular bail. In the event of the

Appellants' filing an application seeking regular bail, the court below

shall pass appropriate orders in accordance with law, without

delay.

Sd/-

MARY JOSEPH JUDGE

MJL Crl.Appeal No. 247 of 2021

APPENDIX

PETITIONER'S ANNEXURES:

ANNEXURE- 1 TRUE COPY OF FIR IN CRIME NO. 60 OF 2021 OF AGALY POLICE STATION.

ANNEXURE- 2 TRUE COPY OF PETITION DATED 3.3.2021 FILED BY THE FIRST APPELLANT BEFORE THE AGALY POLICE.

ANNEXURE- 3 TRUE COPY OF COMPACT DISC CONTAINING THE VIDEO RECORDING OF THE CALL BY BINU USING THE MOBILE PHONE OF DEFACTO COMPLAINANT.

ANNEXURE -4 TRUE COPY OF CRL.M.P. NO. 168 OF 2021 FILED BY THE APPELLANTS BEFORE THE SPECIAL COURT FOR SC/ST (POA), AT MANNARKKAD.

ANNEXURE- 5 TRUE COPY OF ORDER DATED 26.03.2021 IN CRL.M.P.

NO. 168/ OF 2021 OF SPECIAL COURT FOR SC/ST (POA), AT MANNARKAD.

RESPONDENTS' ANNEXURES:       NIL


                                                    TRUE COPY


                                                    P A TO JUDGE