Kerala High Court
Binesh vs State Of Kerala on 4 December, 2019
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
WEDNESDAY, THE 04TH DAY OF DECEMBER 2019 / 13TH AGRAHAYANA,
1941
CRL.A.No.1343 OF 2019
AGAINST THE ORDER IN CRMC 2194/2019 OF SESSIONS
COURT,TRIVANDRUM
CRIME NO.1510/2019 OF Nedumangad Police Station ,
Thiruvananthapuram
APPELLANTS/PETITIONERS/ACCUSED:
1 BINESH
AGED 25 YEARS
S/O. BALAKRISHNAN, THAWKARAKKUZHY
THADATHARIKATHU VEEDU, THANNIMOODU,
IRUNCHAYAM, NEDUMANGAD, THIRUVANANTHAPURAM
DISTRICT.
2 MARTIN THOMAS,
AGED 27 YEARS
S/O. NESAMONY, OTTAKKOMBU VEEDU, UNDAPPARA,
IRUNCHAYAM, NEDUMANGAD, THIRUVANANTHAPURAM
DISTRICT.
3 VINEETH,
AGED 27 YEARS
UDAYA BHAVAN, UNDAPPARA, ANAD P O,NEDUMANGAD,
THIRUVANANTHAURAM DISTRICT.
4 DAVID ROY,
AGED 42 YEARS
ROY MANDIRAM, UNDAPPARA, IRUNCHAYAM,
NEDUMANGAD, THIRUVANANTHAPURAM DISTRICT.
BY ADV. SRI.LATHEESH SEBASTIAN
Crl.A.No.1343/2019
2
RESPONDENTS/STATE & DE FACTO COMPLAINANT:
1 STATE OF KERALA
REPRE
SENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, 682031.
2 DEPUTY SUPERINTENDENT OF POLICE,
NEDUMANGAD POLICE STATION,
THIRUVANANTHAPURAM DISTRICT-695543.
3 STATION HOUSE OFFICER,
NEDUMANGAD POLICE STATION, THIRUVANANTHAPURAM
DISTRICT-695543.
4 SANAL
S/O. MATHEWS, SALINI BHAVAN, PARAYANKAVU,
ANAPPARA, ANAD, IRUNCHAYAM P O, NEDUMANGAD,
THIRUVANANTHAPURAM - 695543
ADV.R.B.RAJESH FOR R4
SRI.C.K.PRASAD PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
26.11.2019, THE COURT ON 04.12.2019 DELIVERED THE FOLLOWING:
Crl.A.No.1343/2019
3
"CR"
R.NARAYANA PISHARADI, J
************************
Crl.A.No.1343 of 2019
----------------------------------------------
Dated this the 4th day of December, 2019
JUDGMENT
This is an appeal filed under Section 14A(2) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'the Act').
2. The appellants are the accused in the case registered as Crime No.1510/2019 of Nedumangad police station. The case was initially registered under Sections 341, 294(b), 323, 324, 506, 427 and 308 read with 34 I.P.C. Subsequently, the offences punishable under Sections 3(1)(r) and 3(1)(s) of the Act were added.
3. The case against the appellants was registered on the basis of the first information statement given to the police by the fourth respondent/de facto complainant. The material averments in the first information statement can be stated as follows: On Crl.A.No.1343/2019 4 12.09.2019, at about 21.30 hours, while the de facto complainant was proceeding through a public road and when he reached the place Parayankavu Junction, the accused reached there on two motor cycles. They stopped the motor cycles in front of the de facto complainant and obstructed him. The first accused abused him by using obscene words and beat him on the head with a wooden piece causing injury above his right eye and the forehead. The first accused threatened the de facto complainant that he would kill him and he again beat him on the back of his head. The other accused kicked and stamped him on various parts of his body. When people reached there on hearing his hue and cry, the accused left the place on the motor cycles. During the incident, the de facto complainant lost an amount of Rs.9,500/- and also the mobile phone which he was carrying with him.
4. The appellants/accused filed an application for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code) before the Court of Session, Thiruvananthapuram. As per the impugned Crl.A.No.1343/2019 5 order, the learned Sessions Judge dismissed the aforesaid application holding that a prima facie case was made out against the petitioners revealing commission of the offences under the Act and the prohibition under Section 18 of the Act would apply in granting pre-arrest bail to them.
5. I have heard the learned counsel for the appellants and also the learned Public Prosecutor. I have also heard the learned counsel for the fourth respondent/de facto complainant. Perused the case diary.
6. Learned counsel for the appellants contended that the averments in the first information statement given to the police by the de facto complainant and the allegations raised against the appellants would not reveal commission of any offence under the Act by them and therefore, the learned Sessions Judge has gone wrong in invoking Section 18 of the Act and declining the benefit of anticipatory bail to them.
7. On the other hand, learned Public Prosecutor would contend that the case diary contains sufficient materials attracting the ingredients of the offences under the Act which are Crl.A.No.1343/2019 6 alleged against the appellants. Learned Public Prosecutor submitted that there is absolute bar under Sections 18 and 18A(2) of the Act against granting anticipatory bail to a person accused of having committed an offence under the Act. Learned counsel for the fourth respondent has supported the submissions made by the learned Public Prosecutor.
8. Section 18 of the Act provides that nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under the Act.
9. Section 18A(2) of the Act, which was introduced by Act 27 of 2018 and which came into force with effect from 20.08.2018, provides that the provisions of Section 438 of the Code shall not apply to a case under the Act, notwithstanding any judgment or order or direction of any Court.
10. In Union of India v. State of Maharashtra : AIR 2019 SC 4917 : AIR Online 2019 SC 1167, the Supreme Court has considered the question of misuse of the provisions of the Act and it has been held as follows:
Crl.A.No.1343/20197
" The consistent view of this Court that if prima facie case has not been made out attracting the provisions of SC/ST Act of 1989, in that case, the bar created under section 18 on the grant of anticipatory bail is not attracted. Thus, misuse of the provisions of the Act is intended to be taken care of by the decision above".
11. In Vilas Pandurang Pawar v. State of Maharashtra : AIR 2012 SC 3316, the Supreme Court has laid down the parameters to be followed in adjudging an application for anticipatory bail filed by a person accused of an offence under the Act. The Apex Court has held thus:
"8. Section 18 of the SC/ST Act creates a bar for invoking Section 438 of the Code. However, a duty is cast on the Court to verify the averments in the complaint and to find out whether an offence under Section 3(1) of the SC/ST Act has been prima facie made out. In other words, if there is a specific averment in the complaint, namely, insult or intimidation with intent to humiliate by calling with caste name, the accused persons are not entitled to anticipatory bail.
9. The scope of Section 18 of the SC/ST Act read with Section 438 of the Code is such that it creates a specific bar in the grant of anticipatory bail. When an Crl.A.No.1343/2019 8 offence is registered against a person under the provisions of the SC/ST Act, no Court shall entertain application for anticipatory bail, unless it prima facie finds that such an offence is not made out. Moreover, while considering the application for bail, scope for appreciation of evidence and other material on record is limited. Court is not expected to indulge in critical analysis of the evidence on record. When a provision has been enacted in the Special Act to protect the persons who belong to the Scheduled Castes and the Scheduled Tribes and a bar has been imposed in granting bail under Section 438 of the Code, the provision in the Special Act cannot be easily brushed aside by elaborate discussion on the evidence."
12. The question arises, when Section 18A (2) of the Act provides that the provisions of Section 438 of the Code shall not apply in relation to the offences committed under the Act, irrespective of any judgment, order or direction of any Court, has the Special Court or the High Court got power to consider and decide whether a prima facie case is made out or not against the accused, attracting the offences under the Act. In other words, the issue is, whether that power is taken away by the introduction of Section 18A(2) of the Act. Crl.A.No.1343/2019 9
13. The statement of objects and reasons of Act 27 of 2018 shows that the amendment of the Act in the year 2018 was made to make it clear that, previous enquiry and prior approval before making arrest of the offenders under the Act, as directed by the Apex Court in Dr. Subhash Kashinath Mahajan v. State of Maharashtra [(2018) 6 SCC 454], are not necessary.
14. It appears that, by incorporating a new provision as Section 18A(2) in the Act, nothing new with regard to the applicability of Section 438 of the Code to persons accused of the offences under the Act, has been introduced. Section 18 of the Act remains without any change. Section 18A(2) of the Act is couched in a different language but the essence and spirit of that provision are the same as in Section 18. In my view, since Section 18 of the Act remains in the statute book without any change or alteration, the interpretation given to that provision in Vilas Pandurang Pawar (supra) and other decisions of the Apex Court, is not rendered nugatory or inoperative by the introduction of Section 18A(2) of the Act. This is evident from the observations made by the Apex Court in Union of India v. Crl.A.No.1343/2019 10 State of Maharashtra : AIR 2019 SC 4917 : AIR Online 2019 SC 1167 which have been quoted earlier. If any other interpretation is given, it would create a situation where the expression "case under this Act" in Section 18A(2) would include a case where the police officer casually, mechanically or wrongly or even deliberately incorporates an offence under the Act in the first information report, though the allegations in the complaint do not disclose ingredients of such offence and where the court would become powerless to consider whether such an offence is, prima facie, made out or not. Therefore, I am of the view that, notwithstanding the incorporation of Section 18A(2) in the Act, the power of the Special Court or the High Court to decide whether the allegations raised against the accused, on their face value, attract the ingredients of the offences under the Act, is not taken away. In other words, the court has got power to decide whether there is real accusation against a person of having committed an offence under the Act. Judicial scrutiny is permissible to examine facts of a case to find out whether, prima facie, an offence under the Act has been committed or not by a Crl.A.No.1343/2019 11 person, before refusing him the benefit of anticipatory bail.
15. The provisions contained in Sections 18 and 18A(2) of the Act do not prevent or prohibit the court from examining whether a prima facie case is made out attracting the provisions of the Act. If it is found by the court that a prima facie case is not made out against the accused and that the allegations against the accused do not attract the offences under the Act, the bar created under Sections 18 and 18A(2) of the Act against granting anticipatory bail, does not come into play.
16. In the instant case, the first information statement given to the police by the de facto complainant, does not reveal commission of any offences punishable under the Act by the accused. There is not even an allegation in the first information statement that the de facto complainant is a person who belongs to Scheduled Caste and that the accused are persons who do not belong to Scheduled Caste. Evidently, this is the reason for not incorporating any offence under the Act against the accused at the time of registration of the first information report. Crl.A.No.1343/2019 12
17. In Gorige Pentaiah v. State of Andhra Pradesh :
(2008) 12 SCC 531, the Supreme Court has held as follows:
"In the instant case, the allegation of respondent No.3 in the entire complaint is that on 27/05/2004, the appellant abused them with the name of their caste. According to the basic ingredients of S.3(1)
(x) of the Act, the complainant ought to have alleged that the accused - appellant was not a member of the Scheduled Caste or a Scheduled Tribe and he (respondent no.3) was intentionally insulted or intimidated by the accused with intent to humiliate in a place within public view. In the entire complaint, nowhere it is mentioned that the accused - appellant was not a member of the Scheduled Caste or a Scheduled Tribe and he intentionally insulted or intimidated with intent to humiliate respondent No.3 in a place within public view. When the basic ingredients of the offence are missing in the complaint, then permitting such a complaint to continue and to compel the appellant to face the rigmarole of the criminal trial would be totally unjustified leading to abuse of process of law."
18. The dictum laid down by the Apex Court in the aforesaid decision would show that there shall be specific Crl.A.No.1343/2019 13 allegations in the first information report disclosing the ingredients of the offences under the Act alleged against the accused.
19. However, subsequently, a three-Judge Bench of the Supreme Court has taken the view that the first information report itself need not contain all the ingredients of an offence under the Act. In Ashabai Machindra Adhagale v. State of Maharashtra : AIR 2009 SC 1973, the Apex Court has held as follows:
"It needs no reiteration that the FIR is not expected to be an encyclopedia. As rightly contended by learned counsel for the appellant whether the accused belongs to scheduled caste or scheduled tribe can be gone into when the matter is being investigated. ..... After ascertaining the facts during the course of investigation it is open to the investigating officer to record that the accused either belongs to or does not belong to scheduled caste or scheduled tribe".
(emphasis supplied).
20. What follows from the above decision is that, absence of any averment in the first information report regarding the caste of the accused or the victim, is of no consequence. During the Crl.A.No.1343/2019 14 investigation, if it is revealed that the victim is a person who belongs to scheduled caste and that the accused is a person who does not belong to scheduled caste, an offence under the Act can be added against the accused, provided other ingredients of such an offence are also disclosed during the investigation.
21. The offences under the Act subsequently alleged against the appellants are under Sections 3(1)(r) and 3(1)(s) of the Act.
22. Section 3(1)(r) of the Act provides that, whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view, shall be punished. Section 3(1)(s) of the Act provides that, whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, abuses any member of a Scheduled Caste or a Scheduled Tribe by caste name in any place within public view, shall be punished.
23. As noticed earlier, the first information statement given to the police by the de facto complainant does not contain Crl.A.No.1343/2019 15 any allegation against the accused that they abused him by caste name or intentionally insulted or intimidated him with intent to humiliate him. Of course, there is an allegation in the first information statement that the accused used obscene words to the annoyance of the de facto complainant. The obscene words allegedly used by the accused are also mentioned in the first information statement.
24. At this juncture, it is to be noted that the alleged incident took place at about 21.30 hours on 12.09.2019 but the first information statement was given to the police only on 18.09.2019 at 17.45 hours. The delay in reporting the matter to the police is not explained in the first information statement. But, merely on the ground of delay in reporting the matter to the police, it cannot be found that the offences alleged against the accused under the Act have not been committed or that the case against the accused is a false one. There may be so many reasons for the delay occurred in reporting the matter to the police. Whether the complainant has given any explanation or reason for the delay in reporting the matter to the police, Crl.A.No.1343/2019 16 whether the explanation given by the complainant for the delay is satisfactory or not etc. are matters to be decided at the time of the trial of the case. Suffice it to state that, mere delay in reporting the matter to the police, does not raise a presumption that the case is false.
25. The case diary reveals that the investigating officer had recorded an additional statement of the de facto complainant. In that statement, the de facto complainant has stated that he is a person who belongs to scheduled caste and that the accused had knowledge of that fact. The caste to which the accused persons belong is also mentioned in the additional statement given by him to the police. However, there is no statement given to the police that the accused are persons who do not belong to scheduled caste.
26. Even in the additional statement given to the police during the investigation, the de facto complainant has not mentioned that the accused had abused him by his caste name.
27. Learned Public Prosecutor has submitted that the statements of the witnesses recorded by the police during the Crl.A.No.1343/2019 17 investigation reveal that the accused had called the de facto complainant by his caste name and also that they had intentionally insulted and humiliated him.
28. One of the vital ingredients of the offences under Sections 3(1)(r) and 3(1)(s) of the Act is that the acts mentioned under that provisions shall be committed by the accused within public view. Merely for the reason that a person who does not belong to scheduled caste commits such acts against a person who belongs to scheduled caste, the offences under Sections 3(1)(r) and 3(1)(s) of the Act would not be attracted. It is necessary that such acts shall be committed within public view. It is not sufficient that the alleged acts have been committed at a public place. The acts alleged against the accused should have been committed by them within public view, that is, in the presence of persons other than the victim and the accused. A place can be a private place but yet within public view. An act may be committed at a public place but not within public view. The offences under Sections 3(1)(r) and 3(1)(s) of the Act would be attracted only if the acts mentioned therein are committed Crl.A.No.1343/2019 18 within public view.
29. On a perusal of the statements of the witnesses contained in the case diary, I find that none of the witnesses has given any statement to the police that they saw or heard the accused insulting or abusing or humiliating the de facto complainant in any manner. In fact, when the witnesses reached the scene of the incident, they only saw the accused leaving the place. Whatever allegations against the accused contained in the statements of the witnesses regarding the abuse or insult or intimidation of the de facto complainant are only matters disclosed to those witnesses by the de facto complainant. As per the materials contained in the case diary, no such abuse, insult or intimidation of the de facto complainant had taken place in the presence of any other person. In other words, there is, prima facie, no allegation or material to show that any act as contemplated under Sections 3(1)(r) and 3(1)(s) of the Act was committed by the accused within public view.
30. Learned Sessions Judge has rightly observed that a critical analysis of the materials on record shall not be made Crl.A.No.1343/2019 19 while considering an application under Section 438 of the Code. But, there is distinction between critical analysis of materials and examination of materials to find out whether a prima facie case is made out against the accused. No doubt, a deeper scrutiny with regard to probability or improbability or the truth or falsity of the allegations, shall not be undertaken by the court. However, the court shall not blindly accept the opinion of the investigating officer that an offence under the Act has been committed. At the same time, the court would not be justified at all in weighing or scrutinising the preponderance of probability of commission of the offence by the accused. But, if the ingredients of the offence alleged against the accused under the Act are found to be missing, the bar created by Sections 18 and 18A(2) would not operate against an accused.
31. In the instant case, I have found that, prima facie, the allegations raised against the accused do not attract the offences punishable under Sections 3(1)(r) and 3(1)(s) of the Act. Learned Sessions Judge has dismissed the application for anticipatory bail only in view of the bar contained in Section 18 of Crl.A.No.1343/2019 20 the Act. Since it is now found that the bar under Section 18 of the Act has no application, the learned Sessions Judge has to consider the application for anticipatory bail afresh in view of the non-bailable offence under the Indian Penal Code alleged against the appellants.
32. In the result, the appeal is allowed. The impugned order passed by the learned Sessions Judge dismissing the application for anticipatory bail filed by the appellants is set aside. The application Crl.M.C.No.2194/2019 is remanded to the Court of Session, Thiruvananthapuram for fresh consideration in the light of the findings made by this Court in this order. Learned Sessions Judge shall consider and dispose of the application for anticipatory bail afresh within a period of seven days from the date of production of a certified copy of this judgment before that court.
(sd/-) R.NARAYANA PISHARADI, JUDGE jsr Crl.A.No.1343/2019 21 APPENDIX PETITIONERS' EXHIBITS:
ANNEXURE A1 TRUE COPY OF FIR AND F.I. STATEMENT IN CRIME NO.1510/2019 OF NEDUMANGAD POLICE STATION.
ANNEXURE A2 TRUE COPY OF THE TREATMENT CERTIFICATE OF
THE 4TH APPELLANT ISSUED FROM MEDICAL
COLLEGE HOSPITAL, THIRUVANANTHAPURAM
DISTRICT 12.09.2019.
RESPONDENTS' EXHIBITS : NIL
TRUE COPY
PS TO JUDGE