Anwar. B vs State Of Kerala
2023 Latest Caselaw 326 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
              THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
    WEDNESDAY, THE 11TH DAY OF JANUARY 2023 / 21ST POUSHA, 1944
                       CRL.A NO. 1231 OF 2022
  AGAINST THE ORDER IN CRL.M.C.NO.2057/2022 OF SPECIAL COURT FOR
              TRIAL OF SC/ST CASES, THIRUVANANTHAPURAM
APPELLANT/FIRST ACCUSED:

            ANWAR. B.,
            AGED 25 YEARS
            S/O. SULEKHA S.,
            KODIYIL VEEDU, CHERIYAVELINALLOOR P.O., VATTAPPARA,
            VELINALLOOR CHERIYAVELINELLOOR, KOLLAM DISTRICT,
            PIN - 691516
            BY ADV. SHAJIN S.HAMEED


RESPONDENTS/STATE & DE FACTO COMPLAINANT:

    1       STATE OF KERALA
            REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF
            KERALA, ERNAKULAM., PIN - 682031
    2       SUMA
            AGED 36 YEARS
            D/O. SUBATHRA,
            AVITTAM VILASOM VEEDU, AANAKKUNNAM DESOM,
            MADAVOOR VILLAGE, PALLICKKAL,
            THIRUVANANTHAPURAM DISTRICT.
            PIN - 695602
            R1 BY PP-SRI.G.SUDHEER


     THIS   CRIMINAL   APPEAL   HAVING    COME   UP   FOR   ADMISSION   ON
11.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A NO. 1231 OF 2022                    2



                                   JUDGMENT

This appeal has been filed under Section 14A (1) and (2) of the

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

1989 (for short 'The SC/ST Act' hereinafter), challenging order in

Crl.M.C.No.2057/2022, dated 31.10.2022, whereby the learned Special Judge

(Principal Special Judge), Thiruvananthapuram, under the SC/ST Act,

dismissed anticipatory bail plea, holding that, going by the facts of the case,

there is specific bar under Section 18 of the SC/ST Act, to grant anticipatory

bail.

2. Heard the learned counsel for the appellant as well as the learned

Public Prosecutor.

3. Although notice served upon the de facto complainant, she did not

appear.

4. It is submitted by the learned counsel for the appellant that, initially

there was no allegation as to commission of offence under the SC/ST Act and

only IPC (Indian Penal Code) offences were alleged. In the above context,

accused Nos.2 and 3 were arrested and produced before the jurisdictional

Magistrate Court (since there was no offence under the SC/ST Act

incorporated at the relevant time) and they were enlarged on bail on the day

itself. Subsequently, offences under the SC/ST Act also was incorporated and

the entire allegations against the appellant, who is arrayed as the 1 st accused

in the above case, are false. He argued further that the occurrence arose,

when the vehicle, which the accused were travelled, fell into a ditch and the

subsequent exchange of words between the de facto complainant and the

accused. Highlighting innocence of the appellant and also pointing out the fact

that there are no prima facie materials to see commission of the offence under

Sections 3(1)(r), 3(1)(w)(i), 3(1)(w)(ii) and 3(2)(Va) of the SC/ST Act, the

learned counsel pressed for setting aside the impugned order and grant bail to

the appellant.

5. Whereas, the learned Public Prosecutor zealously opposed grant

of anticipatory bail and submitted that, going by the First Information

Statement, there are allegations as to commission of offences under the

SC/ST Act as well as very serious offences under Sections 452 and 354 of the

IPC, among other offences. In such a case, the bar under Section 18 and 18A

of the SC/ST Act would squarely apply, apart from the fact that other non

bailable offences also well made thereof, so as to have custodial interrogation

in this matter and therefore, this is not a case of anticipatory bail.

6. I have perused the case diary on par with the rival arguments

advanced by the learned counsel for the appellant as well as the learned

Public Prosecutor. The prosecution alleges commission of offences under

Sections 294(b), 324, 452, 354 and 506(i) r/w Section 34 of the IPC and

Sections 3(1)(r), 3(1)(w)(i), 3(1)(w)(ii) and 3(2)(Va) of the SC/ST Act. The

precise allegation is that, at 4.00 p.m., on 8.9.2022, one among the three

persons trespassed into the house of the de facto complainant, who is a

member of the Scheduled Caste community, abused her, by calling her caste

name, then, he had inflicted injury on the hand of the husband of the de facto

complainant. When the de facto complainant restrained the same, the said

person uttered scandalous words and caught hold on the chest of the de facto

complainant, with the intention to outrage her modesty. The further allegation

is that, the overt acts of the accused caused mental pain as well as

molestation to the de facto complainant. According to the prosecution, the

accused in this case are not members of the Scheduled Caste or Scheduled

Tribe.

7. Later, the investigating officer recorded additional statement of the

de facto complainant. On perusal of the additional statement, the same would

suggest that, serious overt acts including one would attract the offences under

the SC/ST Act as well as under Sections 452 and 354 are the volition of the

appellant herein. That is to say, specific allegation in this regard has been

stated against the appellant.

8. As regards to law, in the matter of grant of anticipatory bail, even

after introduction of Section 18A of the SC/ST Act by way of amendment, the

Apex Court held in Prathvi Raj Chauhan v. Union of India(UOI) & Ors. , [AIR

2020 SC 1036] that when the prosecution allegations if constitute prima facie

materials to find the commission of offence under the SC/ST Act, grant of

anticipatory bail is barred.

9. In the present case, this Court cannot say that there is no prima

facie case alleging commission of offences under the SC/ST Act. Therefore,

grant of anticipatory bail is specifically barred under Section 18 and 18A.

Therefore, the order impugned, refusing anticipatory bail to the appellant

herein, cannot be interfered and this appeal fails.

10. However, there shall be a direction to the appellant to surrender

before the investigating officer, on a day, at 9.00 a.m., within a period of 7

days. On his surrender, the investigating officer can interrogate the appellant,

then, in the event of his arrest, he shall be produced before the Special Court,

on the date of surrender itself. On his production, bail application, if any, will

be filed by the appellant, the learned Special Judge is directed to consider the

regular bail application, preferably on the day itself (only if it is possible) or

without much delay, after hearing the appellant, the learned Public Prosecutor

as well as the de facto complainant, as mandated under Section 15A(3) of the

SC/ST Act. The plea of regular bail shall be considered purely on merits.

It is specifically ordered, if the prosecution files application for custody of

the appellant, the same also shall be considered on the same day and order

shall be passed on the same day.

Sd/-

A. BADHARUDEEN JUDGE

Bb

//TRUE COPY//

PA TO JUDGE