Agnes. A vs State Of Kerala
2024 Latest Caselaw 12979 Ker

Kerala High Court

Agnes. A vs State Of Kerala on 23 May, 2024

Author: K. Babu

Bench: K. Babu

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                    PRESENT
                      THE HONOURABLE MR.JUSTICE K. BABU
   THURSDAY, THE 23RD DAY OF MAY 2024 / 2ND JYAISHTA, 1946
                            CRL.A NO. 481 OF 2024
       CRIME NO.34/2024 OF Payyannur Police Station, Kannur
AGAINST THE ORDER DATED 07.03.2024 IN CRMC NO.357 OF 2024 OF
                          SESSIONS COURT,THALASSERY
APPELLANTS/ACCUSED 1 AND 2:

       1      AGNES. A, AGED 27 YEARS, D/O ANSALA, NELLIVILA
              HOUSE, KOTTI, PAYYANUR, KANNUR DISTRICT - 670307
       2      BINDHYA. V.V, AGED 26 YEARS
              D/O. SREEMANI, DEVAKI NIVAS, NEAR TEMPLE ROAD,
              PAYYANUR, KANNUR DISTRICT., PIN - 670307
              BY ADVS.
              M.ANUROOP
              SHIJU PUTHIYA PURAYIL
              MURSHID ALI M.
              ABRAHAM RAJU CYRIAC
RESPONDENTS/STATE AND DEFACTO COMPLAINANT:

       1      STATE OF KERALA, REPRESENTED BY PUBLIC
              PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031
       2      JYOTHI. K., AGED 43 YEARS, LOVESHORE, PUNCHAKADU,
              PAYYANNUR. P.O., KANNUR DISTRICT., PIN - 670307
              BY ADVS.
              M.BAIJU NOEL
              JITHIN T.P.(K/001657/2024)
              T.S.LIKHITHA(K/000211/2018)
OTHER PRESENT:

              G SUDHEER,PP
THIS       CRIMINAL     APPEAL    HAVING   COME   UP    FOR    ADMISSION    ON
23.05.2024,       THE     COURT    ON   THE   SAME     DAY    DELIVERED    THE
FOLLOWING:
 Crl.Appeal.No.481/2024               2


                           K. BABU, J.
             -------------------------------------------
                 Crl.Appeal No.481 of 2024
             -------------------------------------------
            Dated this the 23rd day of May, 2024

                          JUDGMENT

This is an appeal filed under Section 14A of the

Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act, 1989 [for short, 'SC/ST (PA) Act]. The

challenge in this appeal is to the order dated 07.03.2024 in

Crl.M.C.No.357/2024 passed by the Sessions Court,

Thalassery.

2. The appellants are accused in Crime No.34/2024

of Payyannur Police Station, Kannur. They are alleged to

have committed the offences punishable under sections

451, 341, 323, 294(b) and 427 r/w section 34 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.

3. Appellant No.1 is the daughter-in-law of the

victim [respondent No.2]. Appellant No.2 is a friend of

appellant No.1.

4. The prosecution case:

On 09.01.2024 at 6 p.m., the appellants trespassed into the

residence of the defacto complainant at Punjakkad,

Payyannur, forcefully opened the front door and entered the

centre hall. Appellant No.1 caught hold of and pressed the

defacto complainant's face to a sofa and kicked on her back

with her knee. Appellant No.2 also voluntarily caused hurt

to her. They committed mischief by causing a loss to the

tune of Rs.15,000/- to the victim. They abused the victim, a

member of scheduled caste, by calling her caste name

within public view.

5. I have heard the learned counsel for the

appellants, learned counsel appearing for the victim and

the learned Public Prosecutor.

6. The learned counsel for the appellants submitted

that the prosecution failed to produce the materials prima

facie to establish the ingredients of the offences alleged. It

is further submitted that, appellant No.1, the daughter-in-

law of the victim is living in inimical terms with her. The

learned counsel submitted that several litigations are

pending between the parties before the Family Court,

Kannur.

7. The learned counsel for the appellants further

submitted that the son of the victim had taken the

photographs of appellant No.1 and circulated her morphed

photos through social media, against which appellant No.1

filed a complaint before the Payyannur police on

05.01.2024. It is the submission of the learned counsel for

the appellants that the present crime has been registered

as a counter blast.

8. The learned Public Prosecutor opposed the bail

plea on the ground that there are materials to attract the

offences alleged.

9. The learned counsel appearing for the victim

submitted that the prosecution has placed material to

attract the provisions of the SC/ST (PA) Act. It is further

submitted that, even if the Court is inclined to grant bail,

the appellants may be directed to deposit the value of the

loss suffered by the victim as provided in Section 8 of the

Kerala Prevention of Damage to Private Property and

Payment of Compensation Act, 2019.

10. The case diary has been made available. I have

gone through the First Information Statement and the

related documents.

11. The victim has no case that the appellants

allegedly abused her by calling her caste name within

public view.

12. Admittedly, the parties are close relatives.

Litigations are pending between them before the Family

Court. Appellant No.1 on 05.01.2024 filed a complaint

against the son of the victim before the police alleging that

her morphed photographs were circulated through social

media.

13. On a perusal of the FIS and the relevant

documents, I am of the view that the mens rea of the

appellants in the commission of the alleged offences is

doubtful.

14. 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.

15. 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 prearrest 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"

16. Having considered the circumstances brought on

record on the touch stone of the precedents mentioned

above, I am of the considered view that the bar under

Sections 18 and 18A of the SC/ST (PA) Act is not applicable

to the facts of the case.

17. The offences alleged under the Indian Penal Code

are bailable. Hence the offence under section 3(2)(va) of

the SC/ST (PA) Act is also bailable.

18. The request of the learned counsel for the victim

to direct the appellants to deposit the amount equivalent to

the damage allegedly caused is challenged by the counsel

for the appellants that the building and the property is a

shared household as per the DV Act.

19. While considering the scope of jurisdiction under

Section 438 Cr.P.C., the 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."

20. 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).

21. In Sushila Aggarwal, the 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.

22. Having considered the entire circumstances, I am

of the view that the appellants are entitled to anticipatory

bail.

In the result,

(i) The Criminal Appeal is allowed.

(ii) The order dated 07.03.2024 dismissing Crl.M.C No.357 of 2024 stands set aside.

(iii) The appellants shall appear before the Investigating Officer on 03.06.2024 between 10.00 AM and 11.00 AM for interrogation.

(iv) The Investigating Officer is directed to release the appellants on bail, in the event of their arrest, on their executing bond for Rs.1,00,000/- (Rupees One Lakh only) eacg with two solvent sureties each for the like sum.

(v) The appellants shall not influence the witnesses or tamper with the evidence.

Sd/-

K. BABU JUDGE Sbna/

PETITIONER ANNEXURES Annexure A1 TRUE COPY OF THE FIR DATED 11-01-2024 IN CRIME NO. 34/2024 OF PAYYANNUR POLICE STATION.

Annexure A2 FREE COPY OF ORDER DATED 07-03-2024 IN CRL MC NO. 357/2024 ON THE FILES OF SESSIONS COURT THALASSERY.