Kerala High Court

Seenath vs State Of Kerala on 3 September, 2024

Author: K.Babu

Bench: K. Babu

                                                         2024:KER:66462
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Crl.A Nos.1435 & 1516 of 2024



               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. 1435 OF 2024
     CRIME NO.743/2024 OF THRIKKODITHANAM POLICE STATION,
                                       KOTTAYAM
AGAINST THE ORDER/JUDGMENT DATED 24.07.2024 IN CRMP NO.2236
     OF 2024 OF DISTRICT COURT & SESSIONS COURT, KOTTAYAM

APPELLANTS/ACCUSED:

      1        CHINCHU S LAKSHMI @ ANU,
               AGED 34 YEARS,
               W/O SREERAJ VAYALITHARA HOUSE, SANTHIPURAM P.O,
               NEDUNGADAPPALLY, KARUKACHAL VILLAGE,
               CHANGANACHERRY TALUK,
               KOTTAYAM DISTRICT, PIN - 686101

      2        SHANTHAKUMARI V D,
               AGED 56 YEARS,
               W/O LATE SALIKUMAR, VAYALITHARA HOUSE,
               SANTHIPURAM P.O, NEDUNGADAPPALLY,
               KARUKACHAL VILLAGE, CHANGANACHERRY TALUK,
               KOTTAYAM DISTRICT, PIN - 686101


               BY ADVS.
               S.RAJEEV
               V.VINAY
               M.S.ANEER
               SARATH K.P.
               PRERITH PHILIP JOSEPH
               ANILKUMAR C.R.
               K.S.KIRAN KRISHNAN
               NOURIN S. FATHIMA
                                                         2024:KER:66462
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Crl.A Nos.1435 & 1516 of 2024




RESPONDENTS/STATE:

       1       STATE OF KERALA,
               REPRESENTED BY PUBLIC PROSECUTOR,
               HIGH COURT OF KERALA
               (CRIME NO 743/2024 OF THRIKODITHANAM POLICE
               STATION, KOTTAYAM DISTRICT), PIN - 682031

       2       RAJI DINESAN,
               AGED 53 YEARS,
               W/O DINESAN, KOTTACKAL PUTHUPARAMBIL HOUSE,
               PERUMBANCHY, MADAPALLY VILLAGE, KOTTAYAM,
               PIN - 686546


               BY ADV
               SRI.T.U.SUJITH KUMAR
               SRI.G.SUDHEER, PUBLIC PROSECUTOR


THIS       CRIMINAL        APPEAL   HAVING   BEEN   FINALLY   HEARD   ON
03.09.2024, ALONG WITH CRL.A.1516/2024, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
                                                          2024:KER:66462
                                          3
Crl.A Nos.1435 & 1516 of 2024



               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. 1516 OF 2024
     CRIME NO.743/2024 OF THRIKKODITHANAM POLICE STATION,
                                       KOTTAYAM
AGAINST THE ORDER/JUDGMENT DATED 24.07.2024 IN CRMP NO.2225
                    OF 2024 OF SESSIONS COURT,KOTTAYAM

APPELLANT/S:

      1        SEENATH
               AGED 64 YEARS
               W/O BASHEER, KUTTIKKATTUPARAMBIL HOUSE,
               PERUMPANACHY.P.O, MADAPPALLY VILLAGE,
               CHANGANACHERRY TALUK,
               KOTTAYAM DISTRICT, PIN - 686536

      2        SHEEBA,
               AGED 33 YEARS,
               W/O NISHAD, KUTTIKKATTUPARAMBIL HOUSE,
               PERUMPANACHY.P.O, MADAPPALLY VILLAGE,
               CHANGANACHERRY TALUK, KOTTAYAM DISTRICT.,
               PIN - 686536

               BY ADVS.
               K.A.MANZOOR ALI
               FAYIZA PARVEEN ZAHEER


RESPONDENTS/STATE & COMPLAINANT:

      1        STATE OF KERALA,
               REPRESENTED BY STATION HOUSE OFFICER,
               PATTAMBI POLICE STATION,
               PALAKKAD DISTRICT., PIN - 679303
                                                             2024:KER:66462
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Crl.A Nos.1435 & 1516 of 2024




      2        RAJI DINESAN,
               AGED 53 YEARS, W/O DINESAN KOTTACKAL,
               PUTHUPARAMBIL HOUSE, PERUMBANCHY,
               MADAPPALLY VILLAGE, KOTTAYAM,, PIN - 686546


               BY ADV
               SRI.T.U.SUJITH KUMAR
               SRI.G.SUDHEER, PUBLIC PROSECUTOR


        THIS     CRIMINAL       APPEAL   HAVING   BEEN   FINALLY   HEARD   ON
03.09.2024, ALONG WITH CRL.A.1435/2024, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
                                                            2024:KER:66462
                                         5
Crl.A Nos.1435 & 1516 of 2024



                                  K.BABU, J.
                  --------------------------------------
                   Criminal Appeal Nos.1435 & 1516 of 2024
                  ---------------------------------------
                  Dated this the 3rd day of September, 2024

                                   JUDGMENT

These two appeals are filed under Section 14-A of the

Scheduled Castes and the Scheduled Tribes (Prevention of

Atrocities) Act, 1989. The challenge in these two appeals is to the

common order dated 24.07.2024 in Crl.M.P Nos.2225/2024 and

2236/2024 passed by the Sessions Court, Kottayam.

2. The appellants are the accused in Crime No.743/2024 of

Thrikkodithanam Police Station. The appellants in Crl.A

No.1435/2024 are accused Nos.1 and 2. The appellants in Crl.A

No.1516/2024 are accused Nos.3 and 4. They are alleged to have

committed the offences punishable under Section 294(b) read with

Section 34 of IPC and Sections 3(1)(r) and 3(1)(s) of the Scheduled

Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989

(for short 'the Act').

2024:KER:66462

Crl.A Nos.1435 & 1516 of 2024

3. The prosecution case: On account of previous enmity and

in furtherance of common intention, on 24.02.2024 at about 10.00

p.m, the appellants came in front of the residence of the victim at

Perumbanachi, hurled abuses against her and called her caste

name. Thereafter on 25.02.2024 at about 8.30 p.m, the appellants

trespassed into her residence and abused and humiliated her by

calling her caste name. On 01.04.2024, when the victim and her

family were not in the house the appellants poured some poisonous

substance into the well, pond and the nearby places used by them.

4. Originally, the FIR was registered alleging offences under

Sections 294(b), 451, 270, 277 and 278 read with Section 34 of IPC

and Sections 3(1)(c), 3(1)(g), 3(1)(p), 3(1)(q), 3(1)(r) and 3(1)(s) of the

Act.

5. The learned Public Prosecutor submitted that the

Investigating Officer during the course of investigation found that

the appellants committed only the offences under Section 294(b)

read with Section 34 of IPC and Sections 3(1)(r) and 3(1)(s) of the 2024:KER:66462

Crl.A Nos.1435 & 1516 of 2024

Act.

6. I have heard the learned counsel appearing for the

appellants, the learned counsel appearing for the victim and the

learned Public Prosecutor.

7. The learned counsel for the appellants submitted that the

prosecution failed to place any material to attract the offences

alleged. The learned counsel submitted that the possibility of false

implication is evident from the delay in the registration of the crime

and the registration of Annexure-II FIR based on a complaint filed

by appellant No.1 in Crl.A No.1435/2024 (accused No.1) against the

husband of the defacto complainant, Sri.Dinesan.

8. The learned counsel for the victim submitted that the

prosecution materials reveal the offences alleged. The learned

counsel further submitted that the bar under Section 18 of the Act is

applicable to the facts of the present case. The learned counsel

for the victim further submitted that the appellants are still

harassing the victim.

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Crl.A Nos.1435 & 1516 of 2024

9. The learned Public Prosecutor opposed the bail plea

essentially on the ground that the bail plea is hit by Section 18 of

the Act.

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.

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 2024:KER:66462

Crl.A Nos.1435 & 1516 of 2024

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 2024:KER:66462

Crl.A Nos.1435 & 1516 of 2024

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-I is the FIR. The incidents allegedly occurred on

24.02.2024, 25.02.2024 and 01.04.2024. The victim filed a complaint

before the jurisdictional Court, which was forwarded to the Police

for investigation. The Police registered the FIR on 14.06.2024. The

victim filed the complaint on 25.05.2024. Annexure-II FIR [See Crl.A

No.1435/2024] refers to an incident occurred on 30.03.2024, in

which the husband of the defacto complainant allegedly trespassed 2024:KER:66462

Crl.A Nos.1435 & 1516 of 2024

into the residence of appellant No.1 in Crl.A No.1435/2024 (accused

No.1) and committed mischief therein. It is evident that the parties

have been living in inimical terms.

13. The circumstances brought out especially the delay in the

registration of the FIR and the FIR registered against the husband

of the defacto complainant are reasons to doubt a prima facie case

to attract the offences under the Act. Therefore, I am of the

considered view that the bar under Section 18 of the Act is not

applicable to the facts of the case. The prosecution has no case that

the custodial interrogation of the appellants is required. The

offence alleged under the Indian Penal Code is bailable.

14. On a perusal of materials placed before the Court, I am of

the prima facie view that the possibility of the false implication

cannot be ruled out.

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:

2024:KER:66462

Crl.A Nos.1435 & 1516 of 2024

"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 2024:KER:66462

Crl.A Nos.1435 & 1516 of 2024

[(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).

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.

18. Having considered the entire circumstances on the 2024:KER:66462

Crl.A Nos.1435 & 1516 of 2024

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 Appeals are allowed.

          (ii)    The       common       order        dated     24.07.2024

                  dismissing         Crl.M.P        Nos.2225/2024      and

                  2236/2024 stands set aside.

          (iii) The appellants           shall       appear    before the

Investigating Officer on 12.09.2024 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.50,000/- (Rupees Fifty Thousand only)

each with two solvent sureties each for the

like sum.

(v) The appellants shall not influence the

witnesses in this case or tamper with the 2024:KER:66462

Crl.A Nos.1435 & 1516 of 2024

evidence.