Kerala High Court

X vs State Of Kerala on 12 April, 2024

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
          THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
FRIDAY, THE 12TH DAY OF APRIL 2024 / 23RD CHAITHRA, 1946
                    CRL.A NO. 2032 OF 2023
AGAINST    THE   ORDER/JUDGMENT   DATED   21.12.2023   IN   CRMC
NO.303 OF 2023 OF ADDITIONAL DISTRICT COURT & SESSIONS
COURT - I, KASARAGOD/I ADDITIONAL MACT, KASARAGODE


APPELLANT/ACCUSED:

           X
           XXXXX

           BY ADVS.
           S.RAJEEV
           V.VINAY
           M.S.ANEER
           SARATH K.P.
           ANILKUMAR C.R.
           PRERITH PHILIP JOSEPH
           K.S.KIRAN KRISHNAN

RESPONDENT/STATE OF KERALA:

    1      STATE OF KERALA
           REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA
           ERNAKULAM, PIN - 682031
    2      STATION HOUSE OFFICER
           (CRIME NO.303/2023 OF BADIADKA POLICE STATION,
           KASARGOD DISTRICT), PIN - 671551

           SMT.SEENA C - PUBLIC PROSECUTOR
           SMT.NIMA JACOB - PUBLIC PROSECUTOR


        THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION
ON 12.04.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
                                          2

Crl.A.No.2032 of 2023

                   P.G. AJITHKUMAR, J.
  -----------------------------------------------------------
               CRL.APPEAL No.2032 of 2023
  -----------------------------------------------------------
          Dated this the 12th day of April, 2024

                            JUDGMENT

The application for anticipatory bail filed under Section

438 of the Code of Criminal Procedure, 1973 by the

appellant was dismissed by Additional Sessions Judge-I

Kasaragod as per the impugned order. The appellant

challenges that order.

2. The appellant is the accused in crime

No.1051/2023 of Badiadaka Police Station. The offences

alleged were under Sections 354A(i)(iv) and 354A(iii) of the

Indian Penal Code, 1860 and Section 9(f) read with Section

10 and Section 11(i) read with Section 12 of the Protection

of Children from Sexual Offences Act, 2012 (POCSO Act) and

Section 3(1)(w)(i) and 3(1)(w)(ii) and 3(2)(v) of The

Scheduled Castes and the Scheduled Tribes (Prevention of

Atrocities) Act, 1989 [SC/ST (POA) Act].

3. The prosecution case as follows:

The victim of the offence is aged 13 years. The

petitioner was her teacher. On a Saturday, three weeks

before 29.11.2023, the petitioner asked the victim to reach

the library hall in the school and he had sexually assaulted

her. The victim was further intimidated not to disclose the

incident to anyone. The victim belongs to a Scheduled Caste

and knowing that fact, the petitioner committed such an

offence.

4. Despite giving notice the defacto complainant/

victim or her guardian did not choose to appear before this

Court.

5. Heard the learned counsel for the petitioner and

the learned Public Prosecutor.

6. The learned counsel for the petitioner would submit

that even accepting the allegations in its entirety, no offence

under the provisions of the SC/ST (POA) Act would be attracted

and therefore there is no bar for grant of anticipatory bail.

Considering the nature of the offence, there is absolutely no

reason to detain the petitioner for the furtherance of the

investigation. Accordingly, the learned counsel maintains that this

petition is liable to be allowed.

7. The learned Public Prosecutor would submit that the

materials collected so far would establish the commission of the

offence by the petitioner alleged against him and therefore

granting anticipatory bail to him will adversely affect a fair

investigation of the matter. It is further submitted that unless the

petitioner is interrogated, the entire evidence cannot be collected,

which will fail a proper prosecution.

8. In Vilas Pandurang Pawar v. State of

Maharashtra [(2012) 8 SCC 795], the Apex Court held

that Section 18 of the SC/ST Act creates a bar for invoking

Section 438 of the Code. However, a duty is cast on the

court to verify the averments in the complaint and to find

out whether an offence under Section 3(1) of the SC/ST Act

has been prima facie made out. In other words, if there is a

specific averment in the complaint, namely, insult or

intimidation with intent to humiliate by calling with caste

name, the accused persons are not entitled to anticipatory

bail.

9. This principle was followed by this Court

Ahammedkutty Pothiyil Thottiparambil v. Union of

India and others [MANU/KE/1783/2023]. This Court

explained the position of law that Section 18 does not apply

to cases where there is no prima facie case or patent false

implication or when the allegation is motivated for

extraneous reasons. It was observed that in essence,

Section 18 of the SC/ST Act does not bar absolutely the

grant of anticipatory bail. It is explained,-

"20. xx xx xx As already noticed, the question considered in Subhash Kashinath Mahajan was whether there is an absolute bar in the SC/ST Act against grant of anticipatory bail and the question was answered in the negative. A close and meticulous reading of the decision of the Apex Court in Subhash Kashinath Mahajan would indicate that the reasons in essence, on the basis of which the Apex Court held that the SC/ST Act does not bar absolutely the grant of anticipatory bail, are the following:

i) The provisions of the SC/ST Act need to be given a purposive interpretation in the context of its background and its object to achieve the purpose of law.

ii) In the background of the prevailing social conditions, if perpetrators of atrocities against members of SC/ST communities are granted anticipatory bail, they would not only threaten and intimidate the victims and prevent or obstruct them from prosecuting the offenders, but would also misuse their liberty and terrorise the victims and prevent investigation;

iii) In statutes where an identical provision excluding

the application of Section 438 of the Code exists, there are restrictions on accused for being released on regular bail also, whereas there is no such restriction in the SC/ST Act in the matter of releasing the accused on regular bail. The position in SC/ST Act is that after rejecting an application under Section 438 of the Code, the court can grant regular bail immediately after the arrest and there is no logical rationale behind the situation of putting a fetter on grant of anticipatory bail when there is no such restriction for grant of regular bail.

iv) It has been judicially acknowledged that there have been instances of abuse of the provisions of the Act for settling private disputes. There are also instances of complaints being lodged against public servants/quasi-

judicial/judicial officers with oblique motive for satisfaction of vested interests.

v) The Act has become an instrument to blackmail or to wreak personal vengeance. The Act is also being used to deter public servants from performing their bona fide duties. Consequently, innocent citizens are termed as accused, which is not intended by the legislature. As such if exclusion of the application of Section 438 Of the Code is not limited to genuine cases, there will be no protection to innocent citizens."

10. Here, the person accused of is a teacher. Going by

the allegations, the victim was brought to the library in the school

and sexually assaulted. Having regard to the facts and

circumstances of the case, I am of the view that the bar under

Section 18 of the SC/ST Act does not attract in this case. Further,

I am of the view that the detention of the petitioner during the

investigation is found unnecessary. But the investigating Officer

should be able to interrogate the petitioner and collect evidence

in order to conduct a proper investigation in the matter.

Accordingly, I hold that the appellant is entitled to get

anticipatory bail.

11. In such circumstances, this appeal is allowed and