Kerala High Court
Sreejith C vs State Of Kerala on 14 November, 2024
Author: K.Babu
Bench: K. Babu
2024:KER:85001
Crl.A.No.2043 of 2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
THURSDAY, THE 14TH DAY OF NOVEMBER 2024 / 23RD KARTHIKA,
1946
CRL.A NO. 2043 OF 2024
CRIME NO.759/2024 OF Ramamangalm Police Station, Ernakulam
AGAINST THE ORDER DATED 17.10.2024 IN CMP NO.137 OF
2024 OF COURT OF THE SPECIAL JUDGE FOR THE TRIAL OF
OFFENCES UNDER SC/ST (POA) ACT, 1987, ERNAKULAM
APPELLANT/ACCUSED:
SREEJITH C.,
AGED 35 YEARS,
S/O. SREEKUMARAN C, KOMBALA,
THOTTAKKARA P.O., OTTAPPALAM VILLAGE,
PALAKKAD, KERALA., PIN - 679102
BY ADVS.
SRI.BALAMURALI K.P.
SRI.VIVEK VENUGOPAL
SRI.GAJENDRA SINGH RAJPUROHIT
SMT.HARIPRIYA.M
RESPONDENTS/STATE & DEFACTO COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
2024:KER:85001
Crl.A.No.2043 of 2024
2
2 SRUTHYMOL,
AGED 36 YEARS
PALLITHAZATHU HOUSE, EZHAKKARANAD KARA,
VETTITHARA, MANEED VILLAGE, ERNAKULAM., PIN -
686663
BY ADVS.
SRI.B.SURJITH
SMT.RAHANA JOSE(K/000652/2015)
SRI.LIJO JOSEPH(K/1131/2021)
SMT.AKSHAYA REGHU(K/666/2023)
SRI.G. SUDHEER PP
THIS CRIMINAL APPEAL HAVING COME UP FOR
ADMISSION ON 14.11.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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Crl.A.No.2043 of 2024
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K.BABU, J.
-------------------------------------------
Crl.A No.2043 of 2024
---------------------------------------------
Dated this the 14th 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 17.10.2024 in Crl.M.P. No.137/2024 passed by
the Court of the Special Judge for the Trial of Offences
under SC/ST (PoA) Act, 1989, Ernakulam.
2. The appellant is the sole accused in Crime
No.759/2024 of Ramamangalam Police Station. He is
alleged to have committed the offences punishable under
Sections 323, 324 and 498A of the Bharatiya Nyaya
Sanhita, 2023 and Sections 3(1)(r), 3(1)(s) and 3(1)(va) 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
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impugned order reads thus:
" 2. ...The defacto complainant belongs to
Scheduled Caste Community; the accused/petitioner
do not belong to the Scheduled Caste Community;
their marriage was solemnized on 15.02.2022; the
defacto complainant confronted the accused with
respect to his relationship with other ladies and the
accused slapped the defacto complainant while they
were residing in a rental house situated at Vettithara;
on 07/05/2024 at their rental house in
Pathanamthitta, the accused beat the defacto
complainant with a belt causing voluntary hurt;
further, knowing that the defacto complainant
belongs to the schedule caste community, and that
the accused do not belong to Scheduled Caste or
Scheduled Tribe he humiliated her within public view
in the presence of her mother, calling her by her caste
name; he also stated that he belongs to the upper
caste." (sic.)
4. I have heard the learned counsel for the
appellant, the learned Public Prosecutor and the learned
counsel appearing for the party respondent.
5. The learned counsel for the appellant submitted
that the appellant has not committed any offences as
alleged. It is further submitted that at the instigation of the
defacto complainant the Investigating Officer is attempting
to harass him. It is further submitted that the ingredients of
the offences under the SC/ST (PoA) Act had not been
revealed in the allegations.
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6. The learned Public Prosecutor submitted that the
investigation is on the primarily stage, and therefore,
granting anticipatory bail will prevent the smooth progress
of the investigation.
7. The learned counsel appearing for the party
respondent submits that the bar under Section 18 of the
Act is applicable to the facts. The learned counsel further
submitted that even during the pendency of this
application, the appellant threatened the victim. The
parties are husband and wife. Various litigations are
pending between the parties before the Family Court. The
appellant has filed an application seeking divorce against
respondent No.1. She has filed an application seeking
restitution of conjugal rights. They have been living
separately for the last three months.
8. The Case Diary is made available. I have gone
through the FIS.
9. In Prathvi Raj Chauhan v. Union of India
[(2020) 4 SCC 727], the Supreme Court held that the bar
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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 SC/ST (POA) Act. Thus, atrocities
against Scheduled Caste or Scheduled Tribe community, in
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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-
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."
11. The materials placed before the Court would
reveal that the parties are living in inimical terms. I am of
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the considered view that the bar under Section 18 of the
Act is not applicable to the facts of the case, as the
appellant has prima facie established elements of false
implication.
12. 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
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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
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, the Constitution Bench of
the Apex Court, following the decision in Gurbaksh Singh
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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. The prosecution has no case that the custodial
interrogation of the appellant is required.
16. Having considered the entire circumstances, I am
of the view that the appellant is entitled to anticipatory bail
In the result,
(i) The Criminal Appeal is allowed.
(ii) The order dated 17.10.2024 dismissing
Crl.M.P No.137 of 2024 stands set aside.
(iii) The appellant shall appear before the
Investigating Officer on 04.12.2024 between
10.00 AM and 11.00 AM for interrogation.
(iv) The Investigating Officer is directed to
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release the appellant on bail in the event of his
arrest on his executing bond for Rs.10,000/-
(Rupees Ten Thousand only) with two solvent
sureties each for the like sum.
(v) The appellant shall appear before the
Investigating Officer on all Mondays between
10.00 AM and 11.00 AM for a period of three
months or till the final report is filed, whichever
is earlier.
(vi) The appellant shall not maintain contact
with the victim.
Sd/-
K.BABU
JUDGE
VPK
2024:KER:85001
PETITIONER ANNEXURES
Annexure1 THE TRUE PHOTOCOPY OF THE F.I.R. DATED
22.09.2024 IN CRIME NO.759/2024 OF
RAMAMANGALAM POLICE STATION
Annexure2 THE TRUE COPY OF THE PROFILE PHOTO
UPDATED ON 11.06.2024 IN THE FACE BOOK
PROFILE OF THE DEFACTO COMPLAINANT WITH
PROFILE NAME - 'SRUTHI SREENIVASAN'
Annexure3 THE TRUE PHOTO COPY OF THE IDENTITY
CARD OF THE APPELLANT
Annexure4 THE TRUE COPY OF THE FACE BOOK POST
UPDATED ON 12.06.2024 IN THE FACE BOOK
PROFILE OF THE DEFACTO COMPLAINANT WITH
PROFILE NAME - 'SRUTHI SREENIVASAN'
Annexure5 THE TRUE COPY OF THE PROCEEDINGS OF THE
E-COURT CASE STATUS OF FAMILY COURT,
PATHANAMTHITTA EVIDENCING THE FILING OF
THE DIVORCE PETITION BY THE APPELLANT
Annexure6 THE TRUE COPY OF THE COMPLAINT DATED
23.09.2024 PREFERRED BY THE APPELLANT
BEFORE THE SUPERINTENDENT OF POLICE
(RURAL) ALUVA
Annexure7 THE TRUE COPY OF THE SYNOPSIS OF THE
TRANSFER PETITION FILED BY THE DEFACTO
COMPLAINANT IN TR.P(C) NO.627/2024
BEFORE THIS HON'BLE COURT
RESPONDENT ANNEXURES
ANNEXUARE R2A . True copy of the order dated
08.10.2024 in Crl.M.P.No.7057/2024
ANNEXUARE R2B True Copy of the complaint filed before
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the Ramamangalam Police Station dated
27.10.2024
ANNEXUARE R2C True copy of The Receipt Issued by the
Ramamangalam Police dated 27.10.2024
ANNEXUARE R2D True copy of the petition filed before
Superintendent of Police, Aluva dated
05.11.2024
ANNEXUARE R2E True copy of The Receipt Issued by the
Superintendent of Police, Aluva Rural
dated 05.11.2024
