Kerala High Court
Praveen Kumar D.A vs State Of Kerala on 23 September, 2024
Author: K.Babu
Bench: K. Babu
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
MONDAY, THE 23RD DAY OF SEPTEMBER 2024 / 1ST ASWINA, 1946
CRL.A NO. 1783 OF 2024
CRIME NO.656/2024 OF ATTINGAL POLICE STATION, THIRUVANANTHAPURAM
AGAINST THE ORDER/JUDGMENT DATED 03.09.2024 IN CRMP
NO.500 OF 2024 OF SPECIAL COURT-TRIAL OF OFFENCE UNDER
SC/ST(POA)ACT1989, NEDUMANGAD
APPELLANTS/ACCUSED NOS.2 TO 4:
1 PRAVEEN KUMAR D.A
AGED 31 YEARS
S/O DEVAPALAN NAIR S.K.NILAYAM,ANACHAL, KATTAYIKONAM
P.O,THIRUVANANTHAPURAM, PIN - 695584
2 SHIBIN S
AGED 20 YEARS
S/O SHABU,THIRUVONAM MITHIRMALA,VAMANAPURAM
P.O,THIRUVANANTHAPURAM, PIN - 695606
3 JAYAKRISHNAN J.M
AGED 31 YEARS
S/O JAYAKUMAR,JAYASREE BHAVAN KALAMACHAL P.O,
THIRUVANANTHAPURAM, PIN - 695606
BY ADV S.NIKHIL SANKAR
RESPONDENTS/STATE AND COMPLAINANT:
1 STATE OF KERALA
REP BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA,ERNAKULAM (REPRESENTING STATION HOUSE
OFFICER,ATTINGAL POLICE STATION,THIRUVANANTHAPURAM
DISTRICT-695101), PIN - 682031
2 SARATH
AGED 23 YEARS
S/O VENU,V.S BHAVAN,PALAKUNNU MUNDAKKAL P.O, KOLLAM
DISTRICT, PIN - 691010
NIMA JACOB, PP
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
23.09.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.MC No. 1783 of 2024
2
2024:KER:70635
K.BABU.,J
---------------------
CRL.A.No.1783 of 2024
---------------------------
Dated this the 23rd 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 03.09.2024 in Crl.M.P No.500/2024 passed by
the Court of the Special Judge for the trial of offences under
the Scheduled Castes/Scheduled Tribes (Prevention of
Atrocities) Act, Nedumangad.
2. The appellants are accused Nos.2 to 4 in Crime
No.656/2024 of Attingal Police Station,
Thiruvananthapuram. They are alleged to have committed
the offences punishable under Sections 365, 348, 294(b),
323 and 506 read with Section 34 of IPC and Sections 3(1)(r)
and 3(1)(s) of the Scheduled Castes and the Scheduled
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Tribes (Prevention of Atrocities) Act, 1989 (for short 'the
SC/ST (POA) Act').
The prosecution case:
3. The appellants are not members of Scheduled
Caste or Scheduled Tribe. The defacto complainant and his
friend Manoj belong to Scheduled Caste community. On
13.04.2024 at 09.00 a.m., the bike ridden by the defacto
complainant hit against a car bearing registration No.KL-25-
E-0727 near Elamba School, Mudakkal. The passengers in
the car abused the defacto complainant and his friend. They
had taken away the motorbike to another place. The defacto
complainant reached there and took back the vehicle.
Thereafter, in the night, the appellants and the other
accused assembled in the place of occurrence and brutally
attacked the defacto complainant.
4. Notice was served on the victim. He did not turn
up.
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5. Heard the learned counsel for the appellants and
the learned Public Prosecutor.
6. The learned counsel for the appellants submitted
that the appellants have been falsely implicated in the
crime as a counterblast to the incident in which the defacto
complainant, after threatening the wife of the 1 st accused,
had taken away the motorbike kept in the residence of the
1st accused. It is submitted that the wife of the 1 st accused
had filed a complaint before the Police on 15.04.2024 itself.
It is further submitted that the present FIR has been
registered based on a complaint filed by the defacto
complainant on 16.05.2024, a month after the earlier
incident.
7. The learned counsel for the appellants relied on
Annexure 1 complaint and Annexure 2 acknowledgment
receipt in support of his contentions.
8. The learned counsel for the appellants submitted
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that enmity resulted from the fact that the wife of the 1 st
accused had filed a complaint against the defacto
complainant is the reason for filing this false complaint.
9. The learned Public Prosecutor opposed the bail
plea on the ground that there are materials to attract the
offences alleged.
10. The Case Diary has been made available. I have
gone through the first information statement and the
related documents.
11. The First Information Statement and other
materials placed before the Court do not reveal specific
allegations against the appellants to attract the offences
under Sections 3(1)(r) and 3(1)(s) of the SC/ST (POA) Act.
12. There is no absolute bar against grant of
anticipatory bail in cases alleging offences under the SC/ST
(POA) Act, if no prima facie case is made out or where on
judicial scrutiny the complaint is found to be prima facie
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mala fide. While considering the question of prima facie
case, the material showing that the parties live in inimical
terms is a circumstance to doubt a prima facie case (vide:
Prathvi Raj Chauhan v. Union of India [(2020) 4 SCC
727], Subhash Kashinath Mahajan (Dr.) v. State of
Maharashtra and Another 2018 (2) KHC 207 and xxxx
v. State of Kerala 2022 KHC 1001).
13. Annexure 1 is a complaint filed by the wife of
the 1st accused narrating an incident allegedly occurred on
13.04.2024. Annexure 2 is the acknowledgement receipt
showing the filing of the complaint by the wife of accused
No.1. The specific case of the appellants is that the reason
for filing the present complaint by the defacto complainant
is the enmity resulted from the incident happened on
13.04.2024.
14. On evaluation of the genesis of the prosecution
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case, this Court is of the view that the possibility of false
implication cannot be ruled out. Those circumstances are
sufficient reasons to doubt a prima facie case to attract the
offences under the Act.
15. 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.
16. Accused No.1 in this case was granted
anticipatory bail by this Court as per order dated 19.08.2024
in Crl.Appeal No.1484/2024.
17. 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
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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."
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18. 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 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).
19. 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
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influencing the course of investigation, or tampering with
evidence (including intimidating witnesses), likelihood of
fleeing justice (such as leaving the country), etc.
20. 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
on conditions.
In the result,
(i) The Criminal Appeal is allowed.
(ii) The order dated 03.09.2024 dismissing
Crl.M.P No.500 of 2024 stands set aside.
(iii) The appellants shall appear before the
Investigating Officer on 08.10.2024 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
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with two solvent sureties each for the like
sum.
(v) The appellants 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 appellants shall not influence the
witnesses in this case or tamper with the
evidence.
Sd/-
K.BABU
JUDGE
bng
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PETITIONER ANNEXURES
ANNEXURE 1 TRUE COPY OF THE COMPLAINT FILED BY WIFE OF
THE 1 ST ACCUSED BEFORE S.H.O ,VENJARAMOODU
POLICE STATION DATED 15/04/2024
ANNEXURE 2 TRUE COPY OF THE RECEIPT OF THE COMPLAINT
FILED BY WIFE OF THE 1 ST ACCUSED BEFORE
S.H.O ,VENJARAMOODU POLICE STATION DATED
15/04/2024
ANNEXURE 3 TRUE COPY OF THE F.I.R IN CRIME NO:
656/2024 OF ATTINGAL POLICE STATION
ANNEXURE 4 CERTIFIED COPY OF THE ORDER OF SPECIAL
COURT FOR TRIAL OF OFFENCES U/S
SC/ST(POA),ACT,NEDUMANGADU IN CRL.M.P
NO:500/2024 DATED 03/09/2024
ANNEXURE 5 TRUE COPY OF THE JUDGMENT OF THIS
HONOURABLE COURT IN CRL A. NO:1484/2024
DATED 19/08/2024
