Kerala High Court
Shaibu vs State Of Kerala on 3 September, 2024
Author: K.Babu
Bench: K. Babu
2024:KER:66441
Crl.A.No.1624 of 2024
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
TUESDAY, THE 3RD DAY OF SEPTEMBER 2024 / 12TH BHADRA, 1946
CRL.A NO. 1624 OF 2024
AGAINST THE ORDER DATED 07.08.2024 IN CRMP NO.419 OF
2024 OF SPECIAL COURT-TRIAL OF OFFENCE UNDER SC/ST(POA)
ACT1989, NEDUMANGAD
CRIME NO.423/2024 OF Kilimanoor Police Station,
Thiruvananthapuram
APPELLANTS/ACCUSED NOS. 3 & 4:
1 SHAIBU,
AGED 50 YEARS,
S/O.SATHYAN, USHUS, ELLUVILA,
KILIMANOOR. P.O, THIRUVANANTHAPURAM,
PIN - 695601
2 AJAL SHAH,
AGED 20 YEARS,
S/O.SHAIBU, USHUS, ELLUVILA,
KILIMANOOR. P.O, THIRUVANANTHAPURAM,
PIN - 695601
BY ADVS.
SRI.K.SIJU
SRI.S.ABHILASH
SMT.ANJANA KANNATH
SMT.MARIYA JOSE
RESPONDENTS/STATE & VICTIM:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM,
PIN - 682031
2 THE STATION HOUSE OFFICER,
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Crl.A.No.1624 of 2024
2
KILIMANOOOR POLICE STATION,
THIRUVANANTHAPURAM DISTRICT, PIN - 695601
3 ANANDU,AGED 26 YEARS,
S/O RAJU, KUNNUVILA VEEDU, KEEZHMANNADI,
VARTHOOR, PUTHIYAKAVU, KILIMANOOR P.O,
THIRUVANANTHAPURAM DISTRICT, PIN - 695601
BY ADV.
SRI.G.SUDHEER, PP
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
03.09.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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Crl.A.No.1624 of 2024
3
K.BABU, J.
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Crl.A No.1624 of 2024
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Dated this the 3rd day of September, 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
07.08.2024 in Crl.M.P No.419/2024 passed by the Court of the
Special Judge for the trial of the offences under the Scheduled
Castes/Scheduled Tribes (Prevention of Atrocities) Act,
Nedumangad.
2. The appellants are accused Nos.3 and 4 in Crime
No.423/2024 of Kilimanoor Police Station. They are alleged to
have committed the offences punishable under Sections 143,
147, 148, 149, 294(b), 341, 323, 324, 506 and 308 of IPC and
Section 3(2)(va) of the Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act, 1989 (for short 'the Act').
3. The prosecution case: The appellants are not
members of the Scheduled castes or Scheduled Tribes.
Respondent No.3/defacto complainant/the victim is a member
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of Scheduled Caste. On 11.03.2024 at 10.00 p.m., the defacto
complainant and his brother Amal went to Elluvila temple in
connection with a festival. They parked their motorcycle near
the auditorium of the temple. Accused No.1 demanded them to
remove the vehicle. The defacto complainant did not concede
to the demand as other vehicles were also seen parked there.
Accused No.1 voluntarily caused hurt to him by slapping on his
nose. Accused No.2 fisted towards his lips. Accused No.3 beat
him with an iron bar. The other accused also attacked him. He
sustained grievous injuries in the incident.
4. Notice was served on the victim. He did not turn up.
5. I have heard the learned counsel for the appellants
and the learned Public Prosecutor.
6. The learned counsel for the appellants submitted
that the crime has been registered as a counterblast to the
incident in which Jithin (A1) and the appellants were brutally
assaulted by the defacto complainant and his friends. The
learned counsel for the appellants submitted that the defacto
complainant voluntarily caused grievous injuries to Jithin and
the appellants. It is submitted that he committed the above
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acts with the knowledge that, if he by that act caused death, he
would be guilty of murder. The learned counsel further
submitted that the ingredients of the offence under Section 3(1)
(r) of the Act are not made out by the materials placed by the
prosecution.
7. The learned Public Prosecutor opposed the bail plea.
The learned Public Prosecutor submitted that the bail plea is hit
under Section 18 of the Act.
8. The learned counsel for the appellants relied on
Annexure A2 FIR, the crime registered based on the complaint
lodged by accused No.1 in this case in support of his
contention.
9. The case diary is made available. I have gone
through the first information statement and the related
documents.
10. 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.
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11. 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
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
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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."
12. Annexure A2 FIR narrates the incident allegedly
happened on 11.03.2024 in which accused No.1 in this case and
the appellants were attacked by the victim. The weapons
allegedly used by the victim are chopper and wooden reapers.
The incident in which accused No.1 in this case was attacked is
the first in point of time, which is evident from Annexure A2 FIR.
On a perusal of the pleadings in the FIR and the other related
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materials, this Court failed to find any averments to attract the
offence under Section 3(1)(r) of the Act.
13. On an evaluation of the genesis of the prosecution
case and the registration of Annexure A2 FIR, even prior to the
registration of the present crime, this Court prima facie is of the
view that the possibility of false implication cannot be ruled out.
Those circumstances are sufficient reason to doubt a prima
facie case to attract the offence under Section 3(1)(r) of the Act.
To attract the offence under Section 3(2)(v) of the Act, the
prosecution has to prima facie establish that the offenders
committed the acts for the reason that the victim or the injured
is a member of Scheduled Caste or Scheduled Tribe. In the
present case, as of now, the prosecution has not collected any
material to attract the allegations as above.
14. Therefore, I am of the view that the bar under
Section 18 of the Act is not applicable to the facts of the case.
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:
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"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."
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
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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).
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 of fleeing justice
(such as leaving the country), etc.
Having considered the entire circumstances on the
touchstone of the precedents mentioned above, I am of the
view that the appellants are entitled to anticipatory bail. In the
result,
(i) The Criminal Appeal is allowed.
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(ii) The order dated 07.08.2024 dismissing Crl.M.P
No.419 of 2024 stands set aside.
(iii) The appellants shall appear before the
Investigating Officer on 09.09.2024 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) each with two solvent sureties
each for the like sum.
(v) The appellants shall appear before the
Investigating Officer on all Mondays and Fridays
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) They shall fully co-operate with the
investigation, including subjecting themselves to
`deemed custody', as observed in Gurbaksh Singh
Sibbia & Ors. v. State of Punjab [(1980) 2 SCC
565] and Sushila Aggarwal & Others v. State (NCT
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of Delhi) and Ors. (AIR 2020 SC 831) , for the
purpose of discovery or identification, if any.
(vii) The appellants shall not maintain contact with
any of the witnesses.
(viii) The appellants shall not influence the
witnesses or tamper with the evidence.
Sd/-
K.BABU
JUDGE
VPK
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PETITIONER ANNEXURES
Annexure A1 THE COPY OF FIR IN CRIME NO.423/2024 OF
KILIMANOOR POLICE STATION DATED
12.3.2024
Annexure A2 THE COPY OF FIR IN CRIME NO.420/2024 OF
KILIMANOOR POLICE STATION DATED
12.3.2024
Annexure A3 THE COPY OF ORDER IN B.A 2977/2024 OF
THIS HON'BLE COURT DATED 27.06.2024
