Kerala High Court

Swaroop C vs State Of Kerala on 20 June, 2024

Author: K. Babu

Bench: K. Babu

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                   THE HONOURABLE MR.JUSTICE K. BABU
     THURSDAY, THE 20TH DAY OF JUNE 2024 / 30TH JYAISHTA, 1946
                         CRL.A NO. 976 OF 2024
        CRIME NO.417/2024 OF Chevayur Police Station, Kozhikode
ORDER DATED 03.06.2024 IN CRMC NO.897 OF 2024 OF DISTRICT COURT &
                        SESSIONS COURT,KOZHIKODE
APPELLANT/ACCUSED NO.1:

            SWAROOP C
            AGED 37 YEARS
            S/O SURESH BABU, CHOUKAYIL (H), CHELAVOOR P.O,
            KOZHIKODE, PIN - 675571.

            BY ADVS.
            SHARAN SHAHIER
            RAKHY BABY
            TREESA SHAJI
            SNEHA JOY


RESPONDENTS/STAE & DE FACTO COMPLAINANT:

    1       STATE OF KERALA
            REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
            ERNAKULAM, PIN - 682031.

    2       RANJEESH KUMAR
            AGE 30, S/O RAJAN CHOUKAYIL (H) MOOZHIKKAL P.O,
            KOZHIKODE, PIN - 675571.

    3       DIVYA
            AGE 25, W/O RANJEESH KUMAR CHOUKAYIL (H) MOOZHIKKAL
            P.O, KOZHIKODE-, PIN - 675571.

            SRI.G.SUDHEER, PP
     THIS    CRIMINAL   APPEAL   HAVING    COME   UP   FOR   ADMISSION   ON
20.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A NO. 976 OF 2024                     2


                                      JUDGMENT

This is an appeal filed under Section 14-A of the Scheduled Castes

and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The challenge in

this appeal is to the order dated 3.6.2024 in CRMC No.897 of 2024 passed

by the Sessions Court, Kozhikode.

2. The appellant is the accused in Crime No.417/2024 of

Chevayur Police Station. He is alleged to have committed the offences

punishable under Sections 341, 323 and 324 of the Indian Penal Code and

Sections 3(1)(s) and 3(2)(va) of the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, 1989 (Amendment Act 2015) .

3. The prosecution case:-

The victim is a member of the Scheduled Caste Community. The

appellant is not a member of the Scheduled Caste/Scheduled Tribe

Community. On 19.5.2024, the petitioner wrongfully restrained the victim

and voluntarily caused hurt to him and also abused him by calling his caste

name within public view.

4. Notice was served on the victim, but he did not turn up.

5. I have heard the learned counsel for the appellant and the

learned Public Prosecutor.

6. The learned counsel for the appellant submitted that the

prosecution failed to prima facie establish the offence under Section 3(1)(s)

of the SC/ST (POA) Act. The learned counsel further submitted that the

appellant and the victim were living in inimical terms due to the reason that

the victim married the sister of the appellant without the consent of the

family members.

7. The learned Public Prosecutor opposed the bail plea. It is

submitted that the prosecution has established the offences alleged.

8. The case diary is made available. I have gone through the first

information statement and the related documents.

9. In Prathvi Raj Chauhan v. Union of India [(2020) 4 SCC

727], the Supreme Court held that the bar created under Sections 18 and 18-

A shall not apply if the complaint does not make out a prima facie case for

the applicability of the provisions of the Act.

10. In Subhash Kashinath Mahajan (Dr.) v. State of

Maharashtra and Another 2018 (2) KHC 207, while dealing with the pre-

amended Act, the Supreme Court held that there is no absolute bar against

grant of anticipatory bail in cases under the Act if no prima facie case is

made out or where on judicial scrutiny the complaint is found to be prima

facie mala fide. This Court in xxxx v. State of Kerala 2022 KHC 1001,

while considering the application of the bar under Sections 18 and 18-A of

the Act held thus:

"Before analysing the question as to whether, a prima facie case is made out in this matter, it is necessary to address the tendency of false implication of innocent persons, who do not belong to Scheduled Caste or Scheduled Tribe community, by misusing the provisions of the SC/ST (POA) Act. There is no quarrel that stringent provisions are incorporated in the SC/ST (POA) Act to arrest the menace of atrocities against members of the Scheduled Caste and Scheduled Tribes community by exploiting their backwardness. Since the Parliament found that the provisions of earlier SC/ST (POA) Act were not sufficient to meet the ends of justice, the Act was amended. After the amendment of the SC/ST (POA) Act, more stringent provisions have been incorporated in SC/ST (POA) Act with mandatory right of hearing to the defacto complainant at every stages of the court proceedings, as provided under Section 15A(3) of the SCT/ST (POA) Act. Thus, atrocities against Scheduled Caste or Scheduled Tribe community, in fact, is intended to be curtailed by the stringent provisions of SC/ST (POA) Act. Therefore, when genuine complaint/complaints at the instance of the Schedule Caste or Scheduled Tribe members, which would attract offence/offences incorporated under the SC/ST (POA) Act, if made, the same shall be viewed seriously and appropriate legal action shall go on, to attend the grievances of the complaint/complaints. At the same time, the courts should have a duty to rule out the possibilities of false implication of innocent persons as accused, with a view to achieve ulterior motives of the complaints, with threat of arrest and detention of the accused in custody, because of the stringent provisions in the SC/ST (POA) Act in the matter of grant of anticipatory bail. It is shocking, rather a mind blowing fact that many innocent persons are victims of false implication under the SC/ST (POA) Act.

Therefore, it is the need of the hour for the courts to segregate the grain from the chaff by analysing the genesis of the case, the antecedents prior to registration of the crime, with reference to existence of animosity between the complainant and the accused, with particular attention, vis-avis previous disputes/cases/ complaints, etc. while considering the question of prima facie case, when considering plea for pre-arrest bail. In cases, where there are materials to show that the accused and the complainant are in inimical terms, and there are previous litigation between them or their men or representatives and in retaliation or as a sequel to the same, the allegations in the complaint constituting

offence/offences under the SC/ST (POA) Act are made, the same may be the reasons to doubt the case prima facie. The instances are not exhaustive. Therefore, evaluation of the above facts would help the court while addressing the question of prima facie case, at the pre-arrest bail stage. On evaluation of the genesis of the case within the ambit of the above pari materia, if the court finds something to see the possibility of false implication, in such cases, the court could very well hold that prima facie, the prosecution allegations could not be believed for the purpose of denying anticipatory bail, after leaving the question as to commission of offence/offences for a detailed and fair investigation by the Investigating Officer. Indubitably, such a course of action is necessary to rule out the possibility of false implication"

11. The appellant has established that the victim and the appellant

have been living in enemical terms. The chances of false implication cannot

be ruled out. On a perusal of the materials placed before the Court and on

consideration of the rival submissions, I am of the view that the prosecution

failed to establish a prima facie case to attract the offence under Section 3(1)

(s) of the SC/ST (POA) Act. The IPC offences alleged are bailable.

Therefore, the offence under Section 3(2)(va) of SC/ST (POA) Act also

becomes bailable. Therefore, the bar under Section 18 of the Act is not

applicable to the instant case.

12. While considering the scope of jurisdiction under Section 438

Cr.P.C., a Constitution Bench of the Apex Court in Gurbaksh Singh Sibbia

& Ors. v. State of Punjab [(1980) 2 SCC 565] held thus:

"31. In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his

arrest would generally be made. On the other hand, if it appears likely, considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice, such an order would not be made. But the converse of these propositions is not necessarily true. That is to say, it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides; and, equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond. There are several other considerations, too numerous to enumerate, the combined effect of which must weigh with the court while granting or rejecting anticipatory bail. The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant's presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and "the larger interests of the public or the State" are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail. The relevance of these considerations was pointed out in State v. Captain Jagjit Singh [AIR 1962 SC 253 :

(1962) 3 SCR 622 : (1962) 1 Cri LJ 216] , which, though, was a case under the old Section 498 which corresponds to the present Section 439 of the Code. It is of paramount consideration to remember that the freedom of the individual is as necessary for the survival of the society as it is for the egoistic purposes of the individual. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints on his freedom, by the acceptance of conditions which the court may think fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail."

13. In Siddharam Satlingappa Mhetre v. State of Maharashtra

[(2011) 1 SCC 694] the Apex Court held thus:-

"113. Arrest should be the last option and it should be restricted to those exceptional cases where arresting the B.A.Nos.5010 of 2021 & Connected cases 40 accused is imperative in the facts and circumstances of that case. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record."

(In Sushila Aggarwal v. State (NCT of Delhi) [(2020) 5 SCC 1]) the

declaration of law in Siddharam Satlingappa Mhetre that no condition can

be imposed while granting order of anticipatory bail alone was overruled).

14. In Sushila Aggarwal, a Constitution Bench of the Apex Court,

following the decision in Gurbaksh Singh Sibbia, held that while

considering an application (for grant of anticipatory bail) the Court has to

consider the nature of the offence, the role of the person, the likelihood of

his influencing the course of investigation, or tampering with evidence

(including intimidating witnesses), likelihood of fleeing justice (such as

leaving the country), etc.

15. Having considered the entire circumstances on the touchstone of

the principles discussed above, I am of the view that the appellant is entitled