Kerala High Court

Saly Cherian vs State Of Kerala on 7 November, 2024

Author: K.Babu

Bench: K. Babu

                                                              2024:KER:82841

Crl.A.No.2050 of 2024

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            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT
                THE HONOURABLE MR.JUSTICE K. BABU
  THURSDAY, THE 7TH DAY OF NOVEMBER 2024 / 16TH KARTHIKA,
                                     1946
                        CRL.A NO. 2050 OF 2024


CRIME NO.761/2024 OF Erattupettah Police Station, Kottayam
      AGAINST THE ORDER DATED 16.10.2024 IN CRMP NO.3219
OF 2024 OF SESSIONS COURT,KOTTAYAM
APPELLANT/ACCUSED:

            SALY CHERIAN,
            AGED 60 YEARS,
            W/O CHERIAN, KAJIRATHUMMOOTTIL HOUSE,
            THODUPUZHA, VILLAGE, THODUPUZHA,
            IDUKKI DISTRICT, PIN - 685584

            BY ADVS.
            SRI.SOJAN MICHEAL
            SRI.BOBBY GEORGE
RESPONDENTS/COMPLAINANT/DEFACTO COMPLAINANT:

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

     2      AMRUTHA SHAJI,
            D/O SHAJI, CHERUVIL HOUSE, KATTUPARA BHAGAM,
            VELLIKULAM KARA, THEEKOY VILLAGE, KOTTAYAM
            DISTRICT, PIN - 686580

            BY ADV.
            SRI.G.SUDHEER, PP


         THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
07.11.2024,      THE    COURT   ON       THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
                                                                  2024:KER:82841

Crl.A.No.2050 of 2024

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                                 K.BABU, J.
                   -------------------------------------------
                         Crl.A No.2050 of 2024
                ---------------------------------------------
            Dated this the 7th day of November, 2024
                                JUDGMENT

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

Scheduled Castes and the Scheduled Tribes (Prevention of

Atrocities) Act, 1989. The challenge in this appeal is to the

order dated 16.10.2024 in Crl.M.P No.3219/2024 passed by

the Sessions Court, Kottayam.

2. The appellant is accused No.1 in Crime

No.761/2024 of Erattupetta Police Station. She is alleged to

have committed the offences punishable under Sections

329(3), 296(b), 351 and 61(2) r/w Section 3(5) of the

Bharatiya Nyaya Sanhita, 2023 and Sections 3(1)(p) and

3(2)(v) of the Scheduled Castes and the Scheduled Tribes

(Prevention of Atrocities) Act, 1989 (for short 'the Act').

3. The prosecution case as discernible from the

impugned order reads thus:

2024:KER:82841

" The prosecution allegation is as follows: The defacto complainant belongs to Hindu Velan, a Scheduled Caste Community. The accused persons, with their intention to insult the defacto complainant, on 27.08.2024, at about 11.30 p.m., trespassed into the compound of the defacto complainant at Kattupara.

The first accused abused the defacto complainant calling her caste name. The other accused persons threatened to kill the defacto complainant and her family members. The accused persons trespassed into the courtyard of the house of the defacto complainant and also hurled abuses against them and thereby committed the above offences."

4. I have heard the learned counsel for the

appellant, the victim appeared in person and the learned

Public Prosecutor.

5. The learned counsel for the appellant submitted

that the registration of the present crime is a counterblast

to the two crimes (FIR No.317/2024 of Erattupettah Police

Station and FIR No.750/2024 of Thodupuzha Police Station)

registered based on the complaint filed by the appellant

against the father of the defacto complainant. The learned

counsel further submitted that civil cases are pending

between the appellant and the father and other family

members of the defacto complainant. The learned counsel

submitted that the bar under Section 18 of the Act is not

applicable to the facts of the case as there are sufficient 2024:KER:82841

materials to doubt the genuineness of the allegations

under Section 3(1)(p) of the Act. The learned counsel

further submitted that the offence under Section 3(2)(va) is

bailable as the other offences under the BNS are bailable.

6. The learned Public Prosecutor submitted that the

prosecution has placed sufficient materials to attract the

ingredients of the offence.

7. The victim opposed the bail plea of the appellant

on the ground that it is barred under Section 18 of the Act.

She raised the allegation that the appellant frivolously

instituted, false and malicious criminal and civil

proceedings against her.

8. The learned counsel for the appellant relied on

the following circumstances to contend that the bar under

Section 18 of the Act is not applicable and that the

appellant has established a prima facie case for doubting

the genuineness of the offences alleged:-

(a) Based on the complaint filed by the

appellant, Police registered Annexures 1 and 2 2024:KER:82841

FIRs against the father of the defacto

complainant.

(b) There are other civil litigations pending

between the two families.

9. The appellant placed materials to show that the

parties are living in inimical terms. Several criminal and

civil litigations are pending between the two families. The

Case Diary is made available. In the FIS, the defacto

complainant stated that the appellant filed a false

complaint against her.

10. The learned Public Prosecutor submitted that in

the civil suit instituted by the appellant, there are baseless

allegations against the victim.

11. 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.

2024:KER:82841

12. 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.

13. 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 SC/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 2024:KER:82841

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- a-vis 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."

14. On an evaluation of the material placed by the

appellant, this Court is of the prima facie view that the

possibility of false implication cannot be ruled out. The

circumstances discussed above are sufficient to doubt the 2024:KER:82841

mens rea of the appellant in the commission of the alleged

offences. I am of the considered view that the appellant

could establish sufficient reason to doubt a prima facie

case to attract the offence 3(1)(p) of the SC/ST (PoA) Act.

Therefore, I hold that the bar under Section 18 of the Act is

not applicable to the facts of the case. The offences alleged

under the BNS are bailable.

15. 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 2024:KER:82841

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."

16. 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

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 2024:KER:82841

overruled).

17. 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