Kerala High Court
Shemeer vs State Of Kerala on 7 January, 2025
Crl.Appeal No.2435 of 2024
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2025:KER:701
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
TUESDAY, THE 7TH DAY OF JANUARY 2025 / 17TH POUSHA, 1946
CRL.A NO. 2435 OF 2024
CRIME NO.875/2018 OF ANCHAL POLICE STATION, KOLLAM
AGAINST THE ORDER DATED 26.11.2024 IN CRMP NO.354 OF
2024 OF SPECIAL COURT- OFFENCES UNDER SC/ST (POA) ACT,1989,
KOTTARAKKARA
APPELLANT(S)/ACCUSED NO.3:
SHEMEER
AGED 36 YEARS,
S/O NOORUDHEENKUNJU, SHEMEER MANZIL,
ANCHAL P.O,CHEEPUVAYAL,ANCHAL VILLAGER,
PUNALUR TALUK,KOLLAM DISTRICT, PIN - 691306
BY ADV NAHAS H.
RESPONDENT(S)/DEFACTO COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
2 PRAKASH
AGED 56 YEARS
S/O PACHAN, EDATHANNIKONATHU VEEDU,
CHEEPUVAYAL,THAZHAMEL,KOLLAM, PIN - 691306
THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON
07.01.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Crl.Appeal No.2435 of 2024
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C.S.SUDHA, J.
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Crl.Appeal No.2435 of 2024
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Dated this the 7th day of January 2025
JUDGMENT
This appeal under Section 14A of the Scheduled Caste &
Scheduled Tribe (Prevention of Atrocities) Act, 1989 (the Act)
has been filed by the petitioner/3 rd accused in Crime No.875/2018,
Anchal police station, aggrieved by the dismissal of his
application under Section 482 BNSS for pre-arrest bail, that is,
Crl.M.P.No.354/2024 on the file of the Special Judge, Special
Court for Scheduled Caste/Scheduled Tribe (POA) Act cases,
Kottarakkara. The trial court dismissed the application finding the
bar under Section 18 of the Act.
2. The prosecution case is that the accused persons,
six in number, due to their enmity towards the informant/injured
on 01/10/2017 at 10:45 p.m., while the latter was at the residence
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of his friend, trespassed into the said residence, abused him by
calling obscene words, intimidated him and voluntary caused hurt
to him. They are also alleged to have abused the
informant/injured by his caste name. As per the FIR, the accused
persons are alleged to have committed the offences punishable
under Sections 447, 294(b), 323, 324, 506(I), 354 read with
Section 34 IPC and Section 3(1)(s) of the SC/ST (POA) Act.
3. The learned counsel for the appellant/3 rd accused
submits that no offence under the SC/ST Act is made out and
therefore, the trial court went wrong in holding that the bar under
Section 18 of the Act is attracted.
4. The learned public prosecutor opposes the
request for bail and submits that there is no infirmity in the
impugned order.
5. Heard both sides.
6. During the course of the arguments, a copy of
the FIS was handed over to me. On going through the FIS, I find
that reference is made only to accused nos.1 to 4 in the crime.
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The presence of A5 and A6 at the scene is not referred to.
Further going by the allegations, the incident happened on
01/10/2017 at 10:45 p.m. at the residence of the friend of the
informant/injured. As per Section 3(1)(s) of the Act, the abuse
should be made in any place within public view. The FIS does
not refer to the presence of any other person(s) at the time of the
incident. Therefore, prima facie, the offence under Section 3(1)
(s) of the Act is not seen made out. Moreover, the incident is
alleged to have happened on 01/10/2017. However, the crime is
seen registered only on 02/05/2018. The explanation given by the
informant/injured in the FIS is that on the basis of the complaint
of one of accused person, a crime was registered against him and
hence the reason why he did not appear before the police and give
his complaint. Now he is on bail and hence the complaint. The
crime referred to in the FIS is Crime no.1923/2017, Anchal police
station, wherein the informant is alleged to have committed the
offences punishable under Sections 341, 294(b), 323, 324 read
with Section 34 IPC. It needs to be noted that the first accused in
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the case on hand is the injured/informant in Crime No.1923/2017.
7. Further, it is also brought to my notice that A5
and A6 have already been granted anticipatory bail by the trial
court. The first accused is no more. The second accused was
initially arrested and remanded and thereafter he has also been
released on bail. The petitioner herein is the third accused in the
crime. As the offence under Section 3(1)(s) of the Act is not
prima facie made out, the conclusion of trial court that the bar
under Section 18 of the Act is attracted does not seem to be
correct. It is from the available materials presently before this
Court, it is opined that prima facie a case under the Act is not
made out. However, it is made clear that it is for the investigating
officer to investigate into the matter and produce necessary
materials before the court to prove the ingredients of the offence
under Section 3(1)(s) of the Act, that is, to show that the abuse
was done in public view. In these circumstances, I find that the
appellant/third accused is entitled to be granted pre-arrest bail.
Therefore, the impugned order is set aside and it is ordered thus:-
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i) The appellant/third accused in the event of his
arrest shall be released on bail on execution of a
bond to the satisfaction of the officer concerned;
ii) The appellant/ third accused shall co-operate
with the investigation and appear before the
investigating officer as and when required/
directed;
iii) He shall not leave the country without the
prior permission of this Court;
iv) He shall surrender his passport before the
jurisdictional court. If the appellant does not have
a passport he shall execute an affidavit to that
effect and file the same before the said court
within seven days of release on bail;
v) He shall not contact or intimidate the
informant/victim or the witnesses in this case;
vi) The appellant/third accused shall not directly or
indirectly make any inducement, threat or promise
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to any person acquainted with the facts of the case
so as to dissuade him/her from disclosing such
facts to the Court or to any police officer.
The appeal is allowed.
Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA
JUDGE
Jms
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PETITIONER ANNEXURES
Annexure A-1 THE TRUE COPY OF THE FIR NO. 875/2018
Annexure A-2 THE ACCUSED COPY OF THE ORDER DATED
26.11.2024 SPECIAL COURT FOR SCHEDULED
CAST AND SCHEDULED TRIBE (POA) ACT
CASES, KOTTARAKKARA, KOLLAM DISTRICT IN
Annexure A-3 THE TRUE COPY OF THE FIR NO. 1923/2017
DATED 02.10.2017
