Ansar vs State Of Kerala
2023 Latest Caselaw 5677 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                   THE HONOURABLE MR.JUSTICE V.G.ARUN
    TUESDAY, THE 16TH DAY OF MAY 2023 / 26TH VAISAKHA, 1945
                           CRL.A NO. 179 OF 2023
     CRMP 129/2023 OF SPECIAL COURT-TRIAL OF OFFENCE UNDER
                     SC/ST(POA)ACT1989, MANNARKKAD
APPELLANT/S:

    1          ANSAR
               AGED 22 YEARS
               S/O ABDUL KHADER, ANZIL MANZIL, KALLAMCODU, NSS
               COLLEGE, NENMARA, PALAKKAD -, PIN - 678508
    2          SHINAS
               AGED 27 YEARS
               S/O ZAKKIR HUSSAIN, KALLAMCODU, NSS COLLEGE,
               NENMARA, PALAKKAD -, PIN - 678508
    3          SHAMEER
               AGED 32 YEARS
               S/O SIDDIQUE, KRISHNAN NAIR, KALLAMCODU, NSS
               COLLEGE, NENMARA, PALAKKAD, PIN - 678508
    4          RAMACHANDRAN
               AGED 32 YEARS
               S/O SUKU, 4 CENT COLONY KALLAMCODU, NSS COLLEGE,
               NENMARA, PALAKKAD -, PIN - 678508
               BY ADVS.
               S.RAJEEV
               V.VINAY
               M.S.ANEER
               SARATH K.P.
               PRERITH PHILIP JOSEPH
               ANILKUMAR C.R.

RESPONDENT/S:

    1          STATE OF KERALA
               REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
               KERALA, PIN - 682031
    2          AMBADI
               S/O KRISHNAN, KALLAMCODU, NSS COLLEGE, NENMARA,
               ALATHUR, PALAKKAD -, PIN - 678508

OTHER PRESENT:

               SRI.M.C.ASHI-PP

        THIS    CRIMINAL    APPEAL   HAVING   BEEN   FINALLY   HEARD   ON
23.02.2023, THE COURT ON 16.05.2023 DELIVERED THE FOLLOWING:
 Crl.Appeal No.179 of 2023

                                    -2-



                                 JUDGMENT

Dated this the 16th day of May, 2023

Appellants are the accused in Crime No.41 of

2023 registered at the Alathur Police Station

alleging commission of offfences punishable under

Sections 143, 147, 148, 448, 341, 323, 294(b),

506, 427 r/w 149 IPC and Sections 3(1)(r), 3(1)

(s) and 3(2)(va) of the SC/ST (PoA) Amendment

Act, 2015. The crime originated from the second

respondent's complaint that, at about 15.30 hours

on 08.01.2023, the appellants had trespassed into

his compound and attacked him alleging him that

he had removed a bench from a public place in

Kallamkode. According to the second respondent,

while assaulting him, the appellants insulted and

humiliated him by his caste name and the first

accused grabbed his mother by her hair and pushed

her down. The appellants contend that the

incident did not occur in the manner alleged and Crl.Appeal No.179 of 2023

the second respondent was the real aggressor.

Pointing out this aspect and that the offences

under the SC/ST (PoA) Act were not attracted, the

appellants moved an application for anticipatory

bail before the Special Court. The Special Court

refused to consider the prayer for pre-arrest

bail in view of the prohibition contained in

Section 18 of the Act and dismissed the bail

application. Hence, this appeal.

2. Learned Counsel for the appellants

vehemently contended that the offences under the

Act are not made out, even accepting the

prosecution allegations in their entirety.

Relying on the decision in Hitesh Verma v. State

of Uttarakhand and Another [(2020) 10 SCC 710] it

is argued that, in order to attract the offence

under Section 3(1)(r) of the Act, the second

respondent should have been intentionally

insulted and intimidated with intend to humiliate

him. Such allegation being conspicuously absent, Crl.Appeal No.179 of 2023

that offence is not attracted. Moreover, even

according to the second respondent, the incident

had happened within his compound. If so, the

offence under Section 3(1)(s) is also not

attracted. As such, the prohibition under Section

18 is not attracted.

3. Learned Public Prosecutor stoutly

opposed the prayer for anticipatory bail and

submitted that the appellants are history-

sheeters involved in various crimes including

NDPS cases. It is contended that the materials on

record are sufficient to attract the alleged

offences.

4. The second respondent has not appeared,

despite service of notice through investigating

officer.

5. There is no dispute to the fact that the

second respondent belongs to the Scheduled Caste

community and the appellants belong to other

religion/caste. As per the allegation in the Crl.Appeal No.179 of 2023

First Information Statement, the appellants had

trespassed into the sit-out area of the second

respondent's house and had abused the second

respondent by his caste name. Further, the second

respondent was assaulted and his mother dragged

to the floor.

6. In order to attract the offence under

Section 3(1)(r), all that is necessary is for the

member of the vulnerable class to have been

insulted and humiliated. Going by the

allegations, the possibility of the 2nd

respondent having felt insulted cannot be ruled

out. It cannot also be said that such insult was

not with the intention of humiliating the 2nd

respondent for the reason that he belongs to a

Scheduled Caste. As held in Hitesh Verma

(supra), the ingredient necessary for attracting

the offence under Section 3(1)(r) is intentional

insult and intimidation with an intent to Crl.Appeal No.179 of 2023

humiliate the member of a Scheduled Caste or a

Scheduled Tribe.

Section 3(1)(s) will get attracted when a

member of a Scheduled Caste is abused by caste

name in any place within public view. The second

respondent having specifically alleged that he

was abused by caste name, the contention that no

offence under Section 3(1)(s) is made out cannot

be accepted at this stage. The question whether

the incident had happened within public view

cannot also be decided now. As such there is no

reason to interfere with the finding of the

Special Court that the prayer for pre-arrest bail

cannot be considered in view of the prohibition

under Section 18 of the Act.

In the result, the Crl.Appeal is dismissed.

Sd/-

V.G.ARUN JUDGE Scl/ Crl.Appeal No.179 of 2023

APPENDIX OF CRL.A 179/2023

PETITIONER ANNEXURES Annexure I TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED TO THE APPELLANTS