Shradesh Chandra vs State Of Kerala
2022 Latest Caselaw 5216 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
          THE HONOURABLE MRS. JUSTICE MARY JOSEPH
   FRIDAY, THE 13TH DAY OF MAY 2022 / 23RD VAISAKHA, 1944
                      CRL.A NO. 762 OF 2020
AGAINST THE ORDER/JUDGMENT IN CRMC 1782/2020 OF PRINCIPAL     &
                    SESSIONS COURT, ERNAKULAM
APPELLANT/PETITIONER/ACCUSED:

         SHRADESH CHANDRA
         AGED 57 YEARS
         S/O SURESH CHANDRA VARMA, B44401 MES TYPE 5
         QUARTERS, KATARIBAGH, NAVAL BASE KOCHI,
         KOCHI-682 004.
         BY ADVS.SRI.DEEPU THANKAN
                 SMT.UMMUL FIDA
                 SMT.LAKSHMI SREEDHAR


RESPONDENTS/RESPONDENT/STATE:

    1    STATE OF KERALA
         REPRESENTED BY SUB INSPECTOR OF POLICE, HARBOR
         POLICE STATION, ERNAKULAM, REPRESENTED BY PUBLIC
         PROSECUTOR, HIGH COURT OF KERALA,
         ERNAKULAM-682 031.
    2    RAJALAXMI M.V,
         W/O RAGHUNATH M, BSO, QUARTERS NO 53/2,
         KATARIBAGH, NAVEL BASE, KOCHI-682 004.
         BY ADVS.SHRI.SASI M.R.
                 SMT.DHARMYA M.S
                 SHRI.REGHU SREEDHARAN


     THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON
30.11.2021,   THE     COURT   ON   13.05.2022   DELIVERED   THE
FOLLOWING:
 Crl.A. No. 762 of 2020
                                  -:2:-

                             MARY JOSEPH, J.
                   -----------------------
                         Crl.A. No. 762 of 2020
                   -----------------------
                   Dated this the 13th day of May, 2022


                               JUDGMENT

This appeal is originated from an order passed by Principal

Court of Sessions, Ernakulam on 25.09.2020 in Crl.M.C No.1782

of 2020 in Crime No.509/2020 of Harbour Police Station,

Ernakulam. The appellant is the accused in the above crime

registered for offences punishable under Sections 354 A(1)(ii) &

354 D(1)(i) of Indian Penal Code, 1860 and Sections 3(1)(s) and

3(1)(w)(i) of Scheduled Castes and Scheduled Tribes (Prevention

of Atrocities) Act, 1989 (for short 'SC/ST(POA) Act').

2. Crl.M.C. No.1782 of 2020 was filed by the appellant

before the Court of Sessions, Ernakulam seeking for pre-arrest

bail under Section 438 of Code of Criminal Procedure, 1973 (for

short 'Cr.P.C'). Court of Sessions, Ernakulam found that prima

facie case is not made out against the appellant with respect to

the offence under Section 3(1)(s) incorporated in the crime

registered against them but ingredients are there in the Crl.A. No. 762 of 2020

allegations described in the FIS of the defacto complainant to

attract commission of non-bailable offence under Section 3(1)(w)

(i) of SC/ST (POA) Act. Accordingly, Crl.M.C was dismissed by

the court below.

3. Sri.Deepu Thankan, learned counsel for the appellant has

submitted that the appellant is the Commander Works Engineer

(CWE) in Military Engineer Services at Naval Base, Kochi and the

defacto complainant is a Barrack Store Officer (BSO), working

under him. According to him, the court below is highly

unjustified in declining to grant pre-arrest bail to the appellant.

The learned counsel has invited the Court's attention to copies of

some documents produced alongwith the appeal on hand which

includes a complaint filed by the defacto complainant before the

Internal Complaint Committee constituted under the provisions of

the Sexual Harassment of Women at Workplace (Prevention,

Prohibition and Redressal) Act, 2013. It is contended on the

basis of the said complaint and events followed, evidenced from

other materials accompanying the appeal on hand that the

allegation of the complainant were found baseless by the

Committee. According to the learned counsel, on a scrutiny and Crl.A. No. 762 of 2020

comparison of the copy of the aforesaid complaint with the

complaint lodged by the complainant to prosecute the appellant

in the case on hand, it is found that the necessary ingredients to

attract the offences under SC/ST(POA) Act were added

subsequently. According to him, the exaggerated version of the

incident in the complaint on hand is only the outcome of an after

thought of the defacto complainant, with a view to make the

offences proposed attracted. According to the learned counsel

the date of the incident alleged by the complainant in the

complaint filed before the Committee as well as that filed before

the Court are one and the same but the actual facts have been

modified in a manner to appear as if all the offences are

attracted. It is further contended by the learned counsel that by

modifying the allegations in the complaint lodged before the

Court, the complainant has become instrumental for foisting a

new case which was not known to her prior. According to the

learned counsel, the falsity in the complaint lodged before the

Court can very well be identified and brought to light on

comparing the allegations in the complaint filed before the

Committee and the one on hand. According to the learned Crl.A. No. 762 of 2020

counsel after closure of the proceedings before the Committee in

her disfavour that the complaint on hand was preferred by the

complainant with a view to launch the prosecution that

incorporates offences under the IPC and also under the

SC/ST(POA) Act. The malafide intention of the complainant to

harass the appellant is very much evident from the documents

produced alongwith the appeal on hand. According to the

learned counsel, the court below is highly unjustified in

dismissing the application filed by the appellant under Section

438 Cr.P.C and declining to grant pre-arrest bail to him by the

impugned order.

4. The learned counsel for the respondent has contended on

the contrary that the court below has passed the order truly and

correctly and it does not suffer on any of the grounds, viz.,

illegality, impropriety or infirmity. According to him, a prima

facie case is made out from the allegations in the complaint.

According to him, the allegations are sufficient and satisfactory to

attract the offences allegedly committed by the appellant under

the SC/ST(POA) Act. Therefore, the court below has rightly

dismissed the application and declined to grant pre-arrest bail to Crl.A. No. 762 of 2020

the appellant on the basis of the bar under Sections 18 and 18 A

of SC/ST (POA) Act against invocation of jurisdiction under

Section 438 Cr.P.C.

5. According to the learned counsel, various documents,

copies of which are produced by him are sufficient to draw a

conclusion that the complainant was a lady having integrity and

indepth knowledge in the work assigned to her. According to him,

the appellant had misbehaved and also made comments

involving sex at her. According to him, on a comparison of the

complaints, incidents wherefrom the cause of action originates

are common. According to him, some inconsistencies can be

noticed from the allegations raised in the complaint lodged first in

point of time before the Committee and the one lodged with a

view to register a crime against the petitioner. According to him,

a consideration of bail application on the basis of allegations

raised in another complaint as part of disciplinary proceedings is

out of jurisdiction of this Court. According to him, the

consideration of extraneous matters are uncalled for when the

appeal challenging the order declining pre-arrest bail to the

petitioner, is under consideration.

Crl.A. No. 762 of 2020

6. True that inconsistencies are there in the allegations

made in the complaint filed before the Committee and also

before the Court but the incidents that formed the foundation for

raising allegations against the petitioner are common. But, the

proceedings on hand being appeal, the legality, propriety and

infirmity of the order alone this Court is called upon to consider

based on the materials available in the prosecution on hand and

consideration of extraneous materials are out of appellate

jurisdiction of the court. The court below upon a consideration of

the allegation raised by the prosecution observed that offence

under Section 3(1)(s) was not prima facie attracted. But in the

view of the court below allegations incorporated in the complaint

would prima facie attract offence under Section 3(1)(w)(i) of the

SC/ST (POA) Act allegedly committed by the appellant.

7. Documents are only produced before this Court alongwith

the appeal on hand and those were not available for the court

below for its consideration while passing the impugned order.

Documents being produced for the first time in the appeal and a

consideration on illegality, impropriety and infirmity of the order

assailed on the basis of those is impermissible in exercise of Crl.A. No. 762 of 2020

appellate jurisdiction. The documents now produced may have a

role to play in the investigation to be held. The petitioner had

approached this Court immediately on registration of crime

against him and dismissal of application seeking pre-arrest bail.

The investigation was stayed by this Court when the order of

dismissal of application seeking pre-arrest bail was assailed in

the appeal on hand. Going by the copy of the complaint produced

alongwith the appeal on hand this Court also notices that

allegations to prima facie attract commission of offences under

the SC/ST (POA) Act are there in the complaint.

8. In the above circumstances, interference with the

impugned order is uncalled for.

Appeal fails for the reasons and is dismissed.

Sd/-

MARY JOSEPH, JUDGE.

ttb Crl.A. No. 762 of 2020

APPENDIX OF CRL.A 762/2020

APPELLANT'S ANNEXURES :

ANNEXURE A1 TRUE COPY OF THE F.I.R IN CRIME NO 509/2009 ALONG WITH THE FIRST INFORMATION REPORT ANNEXURE A2 TRUE COPY OF THE COMPLAINT SUBMITTED BY THE DEFACTO COMPLAINANT BEFORE THE INTERNAL COMPLAINT COMMITTEE DATED 27.7.2020 ALONG WITH THE COMMUNICATION DATED 14.8.2020 OF THE INTERNAL COMPLAINT COMMITTEE ANNEXURE A3 TRUE COPY OF THE REPLY SUBMITTED TO THE INTERNAL COMPLAINT COMMITTEE DATED 28.8.2020 ANNEXURE A4 TRUE COPY OF THE ADDITIONAL REPLY DATED 9.9.2020 ANNEXURE A5 TRUE COPY OF THE JUDGMENT DATED 14.9.2020 I BA 6 NO 5376/2020 BY THE HON'BLE COURT OF KERALA ANNEXURE A6 TRUE COPY OF THE INQUIRY REPORT OF THE ICC DATED 24.9.2020 ANNEXURE A7 CERTIFIED COPY OF THE ORDER IN CRL MC NO 1782 OF 2020 OF THE COURT OF THE PRINCIPAL SESSIONS COURT, ERNAKULAM DATED 25.9.2020 ANNEXURE A8 TRUE COPY OF THE WARNING LETTER ISSUED TO THE DEFACTO COMPLAINT BY HER IMMEDIATE SUPERIOR OFFICER ANNEXURE A9 TRUE COPY OF THE WARNING LETTER ISSUED TO THE DEFACTO COMPLAINT BY HER IMMEDIATE SUPERIOR OFFICER ANNEXURE A10 TRUE COPY OF THE WARNING LETTER ISSUED TO THE DEFACTO COMPLAINT BY HER IMMEDIATE SUPERIOR OFFICER ANNEXURE A11 TRUE COPY OF THE WARNING LETTER ISSUED TO THE DEFACTO COMPLAINT BY HER IMMEDIATE SUPERIOR OFFICER //TRUE COPY// Sd/-

P.S. TO JUDGE