Kerala High Court
Ali Sabrin vs State Of Kerala on 21 August, 2024
Author: K.Babu
Bench: K. Babu
CRL.A NO. 1346 OF 2024
1
2024:KER:59547
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
WEDNESDAY, THE 21ST DAY OF AUGUST 2024 / 30TH SRAVANA, 1946
CRL.A NO. 1346 OF 2024
CRIME NO.423/2024 OF KADAKKAVOOR POLICE STATION,
THIRUVANANTHAPURAM
AGAINST THE ORDER/JUDGMENT DATED 23.07.2024 IN CRMP NO.415 OF
2024 OF SPECIAL COURT-TRIAL OF OFFENCE UNDER SC/ST(POA)ACT1989,
NEDUMANGAD
APPELLANT:
ALI SABRIN
AGED 59 YEARS
S/O. A.M BASHEER, ARIA COTTAGE, PUTHUKURICHY P.O,
THIRUVANANTHAPURAM, PIN - 695303
BY ADVS.
SUMAN CHAKRAVARTHY
K.R.RIJA
BREJITHA UNNIKRISHNAN
SUDEESH K.E.
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN - 682031
2 LAKSHMI.P
AGED 23 YEARS
D/O.SUCHITHRA, PARAYADI KANJIRAVILA HOUSE,
KADAKKAVOOR, THIRUVANANTHAPURAM, PIN - 695306
SRI.G.SUDHEER.P.P
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 21.08.2024,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A NO. 1346 OF 2024
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2024:KER:59547
K.BABU, J.
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Crl.A.No.1346 of 2024
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Dated this the 21st day of August, 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 23.07.2024 in Crl.M.P No.415/2024 passed by the Special Court for the trial of offences under the Scheduled Castes/Scheduled Tribes (POA) Act, Nedumangad.
2. The appellant is the sole accused in Crime No.423/2024 of Kadakkavoor Police Station. The appellant is alleged to have committed offences punishable under Section 354D of the Indian Penal Code, Sections 66E and 67 of the Information Technology Act and Sections 3(1)(w)(ii) and 3(2)
(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'the Act'). The prosecution case:
3. The defacto complainant is holder of MSW degree CRL.A NO. 1346 OF 2024 3 2024:KER:59547 and was working as a National Youth Volunteer at Chirayinkeezhu Block office from June 2021 onwards. The appellant was the District Head of her office. They used to have contact over mobile phone in connection with their official duties. In March 2023, the appellant was promoted as Deputy Director,'Nehru Yuva Kendra' and transferred to Bangalore. The contract employment of the defacto complainant was terminated in March 2024. Even after that, the appellant and the defacto complainant used to communicate over mobile phones and social media. The defacto complainant got a message regarding a job opportunity from Bangalore Gowda Group, based on the recommendation of the appellant. She was requested to send AI images to the modelling company. Later, the defacto complainant came to know that such a company was not in existence and that the message was fake. She received lascivious videos from the mobile number 8971118967 to her Telegram account. More than ten obscene videos were sent by the appellant.
CRL.A NO. 1346 OF 2024 4 2024:KER:59547
4. Based on the complaint lodged by the defacto complainant, the Police registered the above referred crime.
5. I have heard the learned counsel for the appellant, the learned Public Prosecutor and respondent No.2/the complainant.
6. The learned counsel for the appellant submitted that the prosecution failed to produce materials to prima facie establish the ingredients of the offences alleged under the Act. It is further submitted that there is nothing to show that the appellant sent the messages.
7. The learned counsel for the appellant submitted that long back the appellant had lost his mobile phone. The appellant filed a complaint on 26.06.2024 with the Bangalore Police, alleging loss and misuse of his mobile phone.
8. The learned counsel for the appellant submitted that custodial interrogation of the appellant is not required. It is further submitted that the defacto complainant misused the statutory provisions in the Act to frame him in a false case. There is a conspiracy to target the appellant. CRL.A NO. 1346 OF 2024 5 2024:KER:59547
9. The learned Public Prosecutor submitted that the prosecution has placed sufficient materials to attract the offences under the Act. It is submitted that the bail plea of the appellant is barred under Section 18 of the Act. The learned Public Prosecutor submitted that the acts allegedly committed by the appellant are on account of the victim belonging to the Scheduled Caste.
10. The victim appeared in person. She reiterated the allegations in the FIS. She submitted that after the registration of the crime, the appellant is behind her and attempting to harass her.
11. I have gone through the case diary. The defacto complainant has made specific allegations to attract the offences alleged.
12. It is trite that the express exclusion under Section 18 of the Act is limited to genuine cases and inapplicable where no prima facie case is made out.
13. In Prathvi Raj Chauhan v. Union of India [(2020) 4 SCC 727], the Supreme Court held that the bar CRL.A NO. 1346 OF 2024 6 2024:KER:59547 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.
14. 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.
15. The essential question to be considered is whether the prosecution materials, prima facie reveal the ingredients of the offences under the Act. The materials relied on by the prosecution clearly establish the offences alleged.
16. The learned counsel for the appellant has a contention that the registration of the crime alleging offences under the Act is a misuse of the Statue. On going through the statement of the victim and other witnesses, I am not in a position to accept this contention.
17. It is apposite to refer to the observation of the CRL.A NO. 1346 OF 2024 7 2024:KER:59547 Apex Court in Union of India v. State of Maharashtra and Ors. (2019 (5) KHC 57), which reads thus:-
"49. There is no presumption that the members of the Scheduled Castes and Scheduled Tribes may misuse the provisions of law as a class and it is not resorted to by the members of the upper Castes or the members of the elite class. For lodging a false report, it cannot be said that the caste of a person is the cause. It is due to the human failing and not due to the caste factor. Caste is not attributable to such an act. On the other hand, members of the Scheduled Castes and Scheduled Tribes due to backwardness hardly muster the courage to lodge even a first information report, much less, a false one. In case it is found to be false / unsubstantiated, it may be due to the faulty investigation or for other various reasons including human failings irrespective of caste factor. There may be certain cases which may be false that can be a ground for interference by the Court, but the law cannot be changed due to such misuse. In such a situation, it can be taken care in proceeding under S.482 of the Cr.PC."
18. The Act was enacted to address the gulf between the rights which the Constitution guaranteed to all people, particularly those who continued to remain victims of ostracism and discrimination. Rules under the Act were framed in 1995 to prevent the commission of atrocities against members of Scheduled Castes and Tribes, to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matters connected therewith or incidental thereto. The Statement of Objects and Reasons appended to the Bill, when CRL.A NO. 1346 OF 2024 8 2024:KER:59547 moved in Parliament, observed that despite various measures to improve the socio-economic conditions of Scheduled Castes and Scheduled Tribes, they remained vulnerable. They are denied a number of civil rights and are subjected to various offences, indignities, humiliation and harassment. They have been, in several brutal instances, deprived of their life and property. Serious atrocities were committed against them for various historical, social and economic reasons. The Act, for the first time, puts down the contours of "atrocity" so as to cover the multiple ways through which members of Scheduled Castes and Scheduled Tribes have been for centuries humiliated, brutally oppressed, degraded, denied their economic and social rights.
19. It is important to reiterate and emphasise that unless provisions of the Act are enforced in their true letter and spirit, with utmost earnestness and dispatch, the dream and ideal of a casteless society will remain only a dream, a mirage. The marginalisation of Scheduled Caste and Scheduled Tribe communities is an enduring exclusion and is based almost CRL.A NO. 1346 OF 2024 9 2024:KER:59547 solely on caste identities. It is to address problems of a segmented society, that express provisions of the Constitution which give effect to the idea of fraternity, or bandhutva referred to in the Preamble, and statutes like the Act, have been framed. These underline the social -- rather collective resolve -- of ensuring that all humans are treated as humans, that their innate genius is allowed outlets through equal opportunities and each of them is fearless in the pursuit of her or his dreams. The question which each of us has to address, in everyday life, is can the prevailing situation of exclusion based on caste identity be allowed to persist in a democracy which is committed to equality and the rule of law? If so, till when? And, most importantly, what each one of us can do to foster this feeling of fraternity amongst all sections of the community without reducing the concept (of fraternity) to a ritualistic formality, a tacit acknowledgment, of the "otherness" of each one's identity. [Vide:-[Prathvi Raj Chauhan v. Union of India].
20. I am of the considered view that the bar under Section 18 is applicable to the facts of the case, and hence, the CRL.A NO. 1346 OF 2024 10 2024:KER:59547 application seeking anticipatory bail, as far as the offences under the act are concerned, is not maintainable.
21. Therefore, the order dated 23.07.2024 in Crl.M.P No.415/2024 passed by the Special Court for the trial of offences under the Scheduled Castes/Scheduled Tribes (POA) Act, Nedumangad, stands confirmed.
22. The learned counsel for the appellant submitted that the two mobile phones allegedly used for the commission of the offence were recovered by the Investigating officer. The learned counsel for the appellant further submitted that the appellant appeared before the Investigating officer for questioning pursuant to notice under Section 41 A of the Cr.P.C., and therefore, the custodial interrogation of the appellant is not required.
23. It is legally permissible for this Court to direct the accused to surrender before the Jurisdictional Court while rejecting a prayer for anticipatory bail [See: Nathu Singh v. State of Uttar Pradesh MANU/SC/0360/2021 : (2021 (3) KLT Online 1113 (SC) and Rahul v. State of Kerala (ILR 2021 (4) CRL.A NO. 1346 OF 2024 11 2024:KER:59547 Kerala 64)].
24. The appellant is directed to surrender before the jurisdictional Court within ten days 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.
The appellant is at liberty to serve a copy of the application that may be filed before the Special Court seeking regular bail in advance to the Public Prosecutor and the defacto complainant. On receipt of the advance copy of the bail application the Public Prosecutor shall see that notice is served on the victim before the bail application is heard.
Sd/-
K. BABU JUDGE saap CRL.A NO. 1346 OF 2024 12 2024:KER:59547 APPENDIX OF CRL.A 1346/2024 PETITIONER ANNEXURES Annexure -1 A TRUE COPY OF FIR AND FIS IN CRIME NO.423/2024 OF KADAKKAVOOR POLICE STATION Annexure -2 A TRUE COPY OF THE LOST REPORT NO.1117454/2024 DATED 26.06.2024 BEFORE THE KARNATAKA POLICE Annexure- 3 A TRUE COPY OF THE SCREEN SHOT OF THE COMPLAINT GIVEN TO CYBER POLICE THROUGH THEIR WHATSAAP THREAD DATED 20.06.2024 Annexure- 4 A FREE COPY OF THE ORDER DATED 23.07.2024 IN CRL.MP NO.415/2024 BY THE SPECIAL COURT FOR TRIAL OF OFFENCES U/S SC/ST (POA) ACT, NEDUMANGAD Annexure- 5 A TRUE COPY OF THE NOTICE DATED 20.07.2024 BY THE ASSISTANT SUPERINTENDENT OF POLICE, VARKALA Annexure- 6 A TRUE COPY OF THE RECEIPT DATED 22.07.2024 ISSUED FROM THE POLICE HEADQUARTERS //True copy// PA to Judge