Kerala High Court
Venugopal K.N vs State Of Kerala on 10 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
FRIDAY, THE 10TH DAY OF SEPTEMBER 2021 / 19TH BHADRA, 1943
CRL.A NO. 254 OF 2021
AGAINST THE ORDER IN CRMC 501/2021 OF DISTRICT COURT & SESSIONS
COURT, PALAKKAD.
APPELLANT/PETITIONER/2ND ACCUSED:
VENUGOPAL K.N.,AGED 51 YEARS
S/O NARAYANA KURUP,
RESIDING AT KALARIKKAL VEEDU, MEKKAD P.O, ANGAMALY,
ERNAKULAM.
BY ADV SURAJ.S
RESPONDENTS/COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM-682031.
2 THE DEPUTY SUPERINTENDENT OF POLICE,
CRIME BRANCH,
DPO ROAD, PALAKKAD-678001.
(CRIEM NO.292/CB/PKD/2017)
3 GEETHA BUYANVA
AGED 21 YEARS
D/O THOMAS BUYANVA,
GUMMAGAYBA, GAJAPATHI DISTRICT, ORISSA-760010.
4 SONALI RAITHA
AGED 23 YEARS
D/O INAS RAITHA, OKKURA VILLAGE, GAYBA,
GAJAPATHI DISTRICT, ORISSA-760012.
5 PREMANJALI GAMANGO ALIAS PREMU
AGED 23 YEARS
D/O MARIYATI GAMANGO,
RAGADI VILLAGE,
PITHRAUGUDA,
GAYBA, GAJAPATHI DISTRICT,
ORISSA-760012.
CRL.A NO. 254 OF 2021 2
6 SONCHITHA BUYANVA
AGED 20 YEARS
D/O VISWANATH BUYANVA,
OKKURA VILLAGE,
BAGAGAJAPATHI DISTRICT,
ORISSA-760010.
7 GILIYANITA BUYANVA
AGED 20 YEARS
D/O BISWANATH BUYANVA,
KRISHNACHANDRAPURAYA,
OKKURA VILLAGE,,
BAGAGAJAPATHI DISTRICT,
ORISSA-760010.
8 JANNITTA GAMANGO ALIAS THARAMJINI
AGED 23 YEARS
D/O LAVANAYATHO GAMANGO, ARIYANYADA, GUMMA, GAJAPATHI
DISTRICT, ORISSA-760010.
SMT. SHEEBA THOMAS (PUBLIC PROSECUTOR)
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 10.09.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A NO. 254 OF 2021 3
C.R
JUDGMENT
This is an appeal under Section 14A of the Scheduled Caste and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 at the instance of the 2nd
accused in Crime No.292/CB/PKD/2017 of Crime Branch, Palakkad (originally
crime No. 240/2016 of Shornur Railway Police Station, Palakkad), challenging
the order dated 01.03.2021 in Crl.M.C. No.501 of 2021 on the file of the Sessions
Court, Palakkad Division, through which the appellant's application for
anticipatory bail was rejected.
2. Sri. John S. Ralph and Sri. Suraj.S., the Learned counsel appearing for
the appellant would submit that in the facts and circumstances of the case, the
appellant ought to have been granted bail as, prima facie, no offence under the
provisions of the Scheduled Caste and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 can be established. With reference to the judgment of this
Court in Sreekumar V. State of Kerala, 2008(3) KLT 748, it is submitted
that the appellant was never arrested at the crime stage and that a person who
appears on the summons is entitled to apply for bail before the Magistrate Court
despite the offence being one triable exclusively by a Special Court. Reference is
made to the judgment of this Court in Antony Cherian v. Purushothaman
Pillai, 1987(2) KLT 125, to contend that even in cases where the punishment
provided for is one of life imprisonment, the Magistrate would be competent to
consider the bail application under Section 437 of the Indian Penal Code. It is
also pointed out, in this connection, that there are certain offences in the Indian
Penal Code which are triable by a Magistrate for which the punishment provided
for is imprisonment for life. It is contended that if the provisions of Section 437
are interpreted to mean that they place a restriction on the right of the Magistrate
to grant bail when the punishment provided for is imprisonment for life, it would
mean that, though the offence is triable by the Magistrate, he would not be in a
position to consider an application for bail in respect of the very same offence.
3. The learned Public Prosecutor would submit that there is a clear bar
under Section 18 of the Scheduled Caste and Scheduled Tribes (Prevention of
Atrocities) Act for grant of anticipatory bail. She also submits that even if this
Court has to consider the grant of bail, the victims also are entitled to be heard.
The learned Public Prosecutor has pointed out that one of the offences in respect
of which proceedings have been initiated against the appellant, namely, the
offence under Section 370(5) of the Indian Penal Code provides for punishment
of imprisonment for life and therefore, the learned Magistrate may not be in a
position to consider the application for regular bail. She also points out the
judgment of this Court in Suresh M.R and others v. State of Kerala;
2011(3)KHC 403 to contend that in such cases even where committal
proceedings are pending before the learned Magistrate, that Court may not be in
a position to consider the bail application.
4. Having regard to the contentions raised, I am not inclined to hold that
the appellant is entitled to anticipatory bail especially in the light of the clear bar
under Section 18 of the Scheduled Caste and Scheduled Tribes (Prevention of
Atrocities) Act. However there is no bar for the Court to consider an application
for regular bail. In the facts of the present case, the offence is exclusively triable
by a court of Session/ the Special Court. However, the matter is now pending at
the stage of committal before the Judicial First Class Magistrate Court,
Ottappalam as C.P. No.2/2021. The summons issued to the appellant is
produced and marked as Annexure A. The appellant had never been arrested
during investigation and now a final report has been filed in the matter before the
Judicial First Class Magistrate Court, Ottappalam. On receipt of the summons,
the appellant appeared before that court. In Antony Cherian (supra), it was
held as follows:-
"5. If it is said that the Magistrate has no jurisdiction to grant bail
in a case involving offences punishable with imprisonment for life,
the discretion conferred on a Magistrate by S.437 of the Code will
stand unnecessarily restricted. Such restriction may lead to a
practical consequence that in all cases (whether instituted on
complaint or police report) in which offences punishable with
imprisonment for life but triable by a Magistrate of the First Class
are involved the Magistrate cannot exercise jurisdiction in favour
of granting bail. Eg:- Ss.326, 377, 388, 394, 409, 467, 472, 474,
475 and 477 are offences punishable with imprisonment for life,
but all such offences are triable by Magistrate of the First Class.
Usually or atleast in most of such cases Magistrate exercise
discretion in favour of granting bail. Of course, where offences
punishable with imprisonment for life and triable exclusively by
Court of Sessions are involved Magistrates refrain from granting
bail to accused persons in such cases. The restriction imposed on a
Magistrate by the legislature is that when "there appear
reasonable grounds for believing that he has been guilty of an
offence punishable with death or imprisonment for life" such
person shall not be released on bail by that Magistrate."
Taking note of the law laid down in Antony Cherian (supra) and
Sreekumar V (supra), I am of the view that this appeal can be disposed of
permitting the appellant to move the Judicial First Class Magistrate Court,
Ottappalam, for regular bail in the light of the law laid down in Shanu v. State
of Kerala, 2000(3) KLT 452 & Sukumari v. State of Kerala, 2001 (1)
KLT 22. The judgment of this Court in Suresh M.R(supra) was rendered in
different factual circumstances and does not in any manner militate against the
view taken in this case.
Resultantly this appeal is disposed of directing the Judicial First Class
Magistrate Court, Ottapalam, (where C.P. No.2/2021 is pending) to consider any
application that may be filed by the appellant/petitioner for regular bail, in
accordance with the law. I make it clear that I have not expressed any opinion on
the merits or entitlement of the appellant for regular bail.
Sd/-
GOPINATH P.
JUDGE
ajt
APPENDIX OF CRL.A 254/2021
PETITIONER ANNEXURE
ANNEXURE-A A TRUE COPY OF THE SUMMONS ISSUED BY THE
JFMC, OTTAPALAM IN C.P.NO.2 OF 2021.
