Kerala High Court
Syam Raj. R.S vs State Of Kerala on 13 September, 2024
Author: K.Babu
Bench: K. Babu
Crl.A.No.1686/2024
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"C.R."
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
FRIDAY, THE 13TH DAY OF SEPTEMBER 2024 / 22ND BHADRA, 1946
CRL.A NO. 1686 OF 2024
CRIME NO.586/2024 OF Naruvamoodu Police Station,
Thiruvananthapuram
AGAINST THE ORDER/JUDGMENT DATED 14.08.2024 IN CRMP
NO.482 OF 2024 OF SPECIAL COURT-TRIAL OF OFFENCE UNDER
SC/ST(POA)ACT1989, NEDUMANGAD
APPELLANT/S:
SYAM RAJ. R.S
AGED 36 YEARS
S/O RAJAN, SOUMYA NILAYAM, KIZHAKKEKKARA PUTHEN
VEEDU, VALLOTTUKONAM, MOTTAMOODU,
NARUVAMOODU.P.O., THIRUVANANTHAPURAM, PIN -
695528
BY ADVS.
K.K.DHEERENDRAKRISHNAN
Crl.A.No.1686/2024
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N.P.ASHA
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN - 682031
2 VISWAMBARAN
S/O KOCHUCHERUKKAN, THANNIYARATHALA MEME PUTEHN
VEEDU, MOTTAMOODU, NARUVAMOODU.P.O.,
THIRUVANANTHAPURAM, PIN - 695528
BY PUBLIC PROSECUTOR SRI G SUDHEER
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION
ON 13.09.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
Crl.A.No.1686/2024
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"C.R."
K.BABU, J
-------------------------------------------------
Crl.A No.1686 of 2024
-------------------------------------------------
Dated this the 13th day of September, 2024
JUDGMENT
This is an appeal filed under Section 14-A of the
Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 (for short 'the Act'). The challenge
in the appeal is to the order dated 14.08.2024 in
Crl.M.P.No. 482 of 2024 passed by the Special Court for
the trial of Offences under SC/ST(POA) Act, Nedumangad.
2. The appellant is accused No.2 in Crime
No.586/2024 of Naruvamoodu Police Station. The
appellant is alleged to have committed the offences
punishable under Sections 115(2), 296(b), 333, 351(2), 74
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and 3(5) of the Bharatiya Nyaya Sanhita, 2023 (for short
'the BNS') and Sections 3(1)(r), 3(1)(s) and 3(2)(va) of the
Act.
The Prosecution case:-
3. The appellant is not a member of the Scheduled
Caste or Scheduled Tribe. The victim/respondent No.2 is
a member of a Scheduled Caste community. On
24.07.2024 at 10.15 pm, the appellant and the other
accused criminally trespassed into the residence of the
victim and voluntarily caused hurt to him. They abused
the victim by calling his caste name within the public
view. Accused No.1 caught hold of the hair of the de
facto complainant's wife and pushed her down. The
appellant dragged her. Accused No.3 fisted the brother of
the de facto complainant. Accused No.1 criminally
intimidated the victim and other members of his family,
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showing an iron rod. The de facto complainant suffered
mental torture and humiliation.
4. I have heard the learned counsel for the
appellant, the victim and the learned Public Prosecutor.
5. The learned Counsel for the appellant made the
following submissions:-
(1)The FIS and the other material placed before the Court
do not contain any specific allegation as to the overt acts
allegedly committed by the appellant, insofar as the
offences under Sections 3(1)(r) and 3(1)(s) of the Act are
concerned.
(2)The de facto complainant is a local political leader, and
therefore, there is every possibility that he influenced the
Police to register a false case against the appellant and
the other accused.
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(3)The learned Special Judge has not considered the
motive behind the incident that allegedly occurred.
(4)The offence under Section 3(2)(va) is not attracted as
the offences alleged under the BNS cannot be treated as
scheduled offences since the schedule appended to the
Act has not been amended after the repeal of the IPC by
the Act 45 of 2023.
6. The victim made the following submissions:-
The appellant and the other accused committed the
offences alleged, knowing that he is a member of the
Scheduled Caste. Even after the incident, the appellant
and the other accused are continuously making threats to
his life. The attempt of the appellant and the other
accused is to pressurize him to withdraw the complaint.
On 28.08.2024, he filed a complaint before the Chief
Minister of Kerala, stating the threats on the part of the
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appellant and the other accused, pressurizing him to
withdraw the complaint. On 27.07.2024, his wife filed a
petition before the Kerala Women's Commission stating
that they are facing threats from the appellant and the
other accused. If anticipatory bail is granted to the
appellant, his life and property will be put to danger.
7. The learned Public Prosecutor made the
following submissions:-
(1)The bail plea of the appellant is barred under Section
18 of the Act.
(2)The prosecution has placed sufficient materials to
attract the offences alleged.
8. The learned counsel for the appellant submitted
that the victim has raised the allegations of threat for the
first time before this Court which is evident from the
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impugned order, in which the learned Special Judge has
not recorded any of the contentions raised by the victim.
9. The learned Public Prosecutor countered and
submitted that the victim cannot be blamed for the fact
that the Special Judge has not recorded his submissions.
The victim had made specific mention regarding the
threats to his life and property before the Special Judge
also.
10. The Special Judge has recorded that he heard
the victim but did not mention the submissions made by
him in the order impugned.
11. I shall first consider the argument of the
learned counsel for the appellant that the offence under
Section 3(2)(va) of the Act is not attracted on the ground
that the schedule to the Act has not been amended
subsequent to the repeal of the Indian Penal Code.
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12. Section 3(2)(va) of the Act reads thus:-
"3. Punishments for offences of atrocities.-
xxxxx
(va)commits any offence specified in the Schedule,
against a person or property, knowing that such person is
a member of a Scheduled Caste or a Scheduled Tribe or
such property belongs to such member, shall be
punishable with such punishment as specified under the
Indian Penal Code (45 of 1860) for such offences and shall
also be liable to fine;"
13. Section 3(2)(va) is attracted when a person
commits any offence punishable under the Indian Penal
Code specified in the schedule against a person or
property, knowing that such person is a member of the
Scheduled Caste or the Scheduled Tribe.
14. Section 8 of the General Clauses Act, 1897,
deals with the construction of references to repealed
enactments.
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15. Section 8 of the General Clauses Act reads
thus:-
8. Construction of references to repealed
enactments.-- [(1)] Where this Act, or any [Central Act]
or Regulation made after the commencement of this Act,
repeals and re-enacts, with or without modification, any
provision of a former enactment, then references in any
other enactment or in any instrument to the provision so
repealed shall, unless a different intention appears, be
construed as references to the provision so re-enacted.
(2) Where before the fifteenth day of August, 1947, any
Act of Parliament of the United Kingdom repealed and re-
enacted, with or without modification, any provision of a
former enactment, then reference in any [Central Act] or
in any Regulation or instrument to the provision so
repealed shall, unless a different intention appears, be
construed as references to the provision so re-enacted.
16. The object of Section 8, obvious and patently
made known, is that where any Act or Regulation is
repealed and re-enacted, references in any other
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enactment to provisions of the repealed former
enactment must be read and construed as references to
the re-enacted new provisions, unless a different intention
appears.
17. The repeal and re-enactment of a provision has
the effect set out in that section, and the reference to the
repealed provision is required to be construed as
reference to the provision as re-enacted. If a provision of
one statute was incorporated in another statute, then any
subsequent amendment in the former statute or even its
total repeal would not affect the provision as incorporated
in the latter statute. [vide:- Collector of Customs v.
Nathella Sampathu Chetty [Collector of Customs v.
Nathella Sampathu Chetty, 1962 SCC OnLine SC 30 :
(1962) 3 SCR 786 : AIR 1962 SC 316], New Central Jute
Mills Co. Ltd. v. Collector of Central Excise [New
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Central Jute Mills Co. Ltd. v. Collector of Central
Excise, (1970) 2 SCC 820] and Mahindra & Mahindra
[Mahindra & Mahindra Ltd.v. Union of India, (1979) 2
SCC 529].
18. In similar situations the Supreme Court had
placed reliance upon Section 8 of the General Clauses
Act. In New Central Jute Mills Co. Ltd. v. The
Assistant Collector of Central Excise, Allahabad and
Ors. [MANU/SC/0339/1970 : 1978(2)ELT393(SC)], the
Supreme Court held it to be possible to read the
provisions of the Customs Act, 1962 in the place of Sea
Customs Act, 1878 found mentioned in Section 12 of the
Central Excise and Salt Act, 1944. In State of Bihar v.
S.K. Roy [MANU/SC/0184/1966 : 1966CriLJ1538], the
Supreme Court held that by virtue of Section 8 of the
General Clauses Act, references to the definition of the
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word 'employer' in Clause (e) of Section 2 of the Indian
Mines Act, 1923, made in Coal Mines Provident Fund and
Bonus Schemes Act, 1948 should be construed as
references to the definition of 'owner' in Clause (1) of
Section 2 of the Mines Act, 1952, which repealed and re-
enacted 1923 Act.
19. The resultant conclusion is that the penal
provisions of the Indian Penal Code referred to in the
schedule to the Act are to be construed as reference to
the corresponding penal provisions in the Bharatiya
Nyaya Sanhita, 2023.
20. Moreover, the Ministry of Law and Justice on
16.07.2024 issued the following notification.
S.O.2970(E).--In pursuance of section 8 of the General
Clauses Act, 1897 (10 of 1897), the Central Government
hereby notifies that where any reference of the Indian
Penal Code (45 of 1860), or the Code of Criminal
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Procedure, 1973 (2 of 1974) or the Indian Evidence Act,
1872 (1 of 1872) or any provisions thereof is made in any
-
(a)Act made by Parliament; or
(b)Act made by the Legislature of any State;
(c)Ordinance;
(d)Regulations made under Article 240 of the
Constitution;
(e)President's order;
(f) rules, regulations, order or notification made
under any Act, Ordinance or Regulation.
For the time being in force, such reference shall
respectively be read as the reference of the Bharatiya
Nyaya Sanhita, 2023 (45 of 2023) (BNS), the Bharatiya
Nagarik Suraksha Sanhita, 2023 (46 of 2023) (BNSS) or
the Bharatiya Sakshya Adhiniyam, 2023 (47 of 2023)
(BSA), and the corresponding provisions of such law shall
be construed accordingly.
21. In the schedule to the Act, reference is made to
the offences under the Indian Penal Code. The Indian
Penal Code was repealed by the Act 45 of 2023. The
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penal provisions in the IPC were re-enacted in the BNS.
In the present case, the petitioner faces allegations under
Sections 115(2), 296(b), 333, 351(2), 74 and 3(5) of the
BNS. The corresponding provisions in the IPC are
Sections 323, 294, 452, 503, 354 and 341, respectively,
out of which Section 354 IPC is a scheduled offence. The
corresponding penal provision in the BNS is Section 74.
Section 74 BNS is in pari materia with Section 354 IPC.
Therefore, in view of Section 8 of the General Clauses
Act, 1897, and the notification S.O.2970(E) dated
16.07.2024 of the Ministry of Law and Justice, reference
to Section 354 of Indian Penal Code in the schedule of the
Act shall be read as reference to Section 74 of the BNS,
2023. Therefore, the contention of the learned counsel
for the appellant that Section 3(2)(va) of the Act is not
attracted falls to ground.
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22. The learned counsel for the appellant submitted
that there are no specific allegations against the
appellant to attract Section 3(1)(r) or 3(1)(s) of the Act. I
have gone through the FIS. It does not contain any
specific allegations to attract the offences under Sections
3(1)(r) and 3(1)(s) of the Act. There is only a general
allegation that the appellant and the other accused
abused the victim by calling his caste name. Therefore,
the contention of the learned counsel for the appellant
has force.
23. The motive behind the alleged attack, as
mentioned in the FIS, is that the victim's son Sri. Dileep
sent a message to the lover of accused No.1. Such an
incident, even if happened will not destroy the
prosecution allegations.
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24. There is specific allegation against the
appellant that he assaulted the victim's wife, knowing it
to be likely that he would thereby outrage her modesty.
The prosecution could establish the ingredients of Section
74 of the BNS. Therefore, the offence under Section 3(2)
(va) of the Act is also attracted.
25. 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 establish a prima facie case for the
applicability of the provisions of the Act.
26. 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
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case is made out or where on judicial scrutiny the
complaint is found to be prima facie mala fide.
27. I have gone through the FIS and the relevant
materials placed by the Prosecution. The ingredients of
the offence under Section 3(2)(va) have been prima facie
made out. The bail plea of the appellant is hence barred
under Section 18 of the Act. Therefore, the prayer for
anticipatory bail insofar as the offence under Section 3(2)
(va) of the Act stands rejected.
28. As I have mentioned above, the prosecution
could prima facie establish the offence under Section 74
of the BNS. The victim has a specific contention that
even after the incident, the appellant and the other
accused are making attempts to pressurise him. His
specific case is that he has threats to his life and property.
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29. The learned counsel for the appellant has a
contention that since the victim is a political leader, there
is every probability that he influenced the Police. This
contention of the learned counsel for the appellant is
unacceptable.
30. On consideration of the entire circumstances, I
am of the view that the appellant is not entitled to
anticipatory bail. Therefore, the order dated 14.08.2024
in Crl.M.P.No. 482 of 2024 passed by the Special Court
for the trial of Offences under SC/ST(POA) Act,
Nedumangad, requires no interference and it stands
confirmed.
31. It is legally permissible for this Court to direct
the accused to surrender before the Jurisdictional Court
while rejecting prayer for anticipatory bail {See: Nathu
Singh v. State of Uttar Pradesh (MANU/SC/0360/2021)
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: [2021 (3) KLT Online 1113 (SC)] and Rahul v. State of
Kerala [ILR 2021 (4) Kerala 64)]}.
32. The appellant is directed to surrender before
the jurisdictional Court within two weeks from this date.
On his surrender before the jurisdictional Court, if the
appellant prefers an application seeking regular bail, the
Court shall dispose of the application on the same day
itself in the light of the principles enunciated by the
Supreme Court in the judgment in Satender Kumar
Antil v. Central Bureau of Investigation [(2022) 10
SCC 51] and paragraph 53 of the judgment in Manish
Sisodia v. Enforcement Directorate (2024 SCC
OnLine SC 1920).
The appellant is at liberty to serve a copy of the
application seeking bail in advance to the Public
Prosecutor and the counsel who appeared for the defacto
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complainant. On receipt of the advance copy of the bail
application, the Public Prosecutor shall see that notice is
served on the victim/defacto complainant before the bail
application is heard.
Sd/-
K.BABU, JUDGE
kkj
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PETITIONER ANNEXURES
Annexure-I TRUE COPY OF FIR ALONG WITH FIS IN
CRIME NO.586/2024 OF NARUVAMOODU
POLICE STATION
