Kerala High Court
Jafar Sadhik Thangal vs State Of Kerala on 17 December, 2019
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
TUESDAY, THE 17TH DAY OF DECEMBER 2019 / 26TH AGRAHAYANA, 1941
Bail Appl..No.8763 OF 2019
CRIME NO.773/21019 OF VADANAPPALLY POLICE STATION , THRISSUR
PETITIONERS/ACCUSED NOS.1 TO 5:
1 JAFAR SADHIK THANGAL,
AGED 26 YEARS
S/O POOKOYA THANGAL, CHERKARAPADAVUNGAL HOUSE,
VADANAPALLY, THRISSUR -680 614.
2 FAHAD A.M.,
AGED 21 YEARS
S/O ABU, MANJALVALAPPIL HOUSE, VADANAPALLY,
THRISSUR -680 614.
3 SABITH A.S.,
AGED 30 YEARS
S/O SARASAN, ANTHUPARAMBIL HOUSE, P.O. THRITHALLUR,
THRISSUR -680 614.
4 SREEJITH A.S.,
AGED 30 YEARS
AMBATT HOUSE, P.O., NADUVILAKARA, VADANAPALLY,
THRISSUR -680 614.
5 SADHAM HUSSAIN,
AGED 28 YEARS
S/O MUHAMMED, PANIKKAVEETTIL, VADANAPALLY BEACH,
VADANAPALLY,
THRISSUR -680 614.
BY ADVS.
SRI.MANSOOR.B.H.
SMT.JANET JOB
RESPONDENTS/COMPLAINANT/STATE AND DE FACTO COMPLAINANT:
1 STATE OF KERALA,
REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM - 682 031.
2 STATION HOUSE OFFICER,
VADANAPALLY POLICE STATION, THRISSUR -680 614.
B.A No.8763 of 2019
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3 DEPUTY SUPERINTENDENT OF POLICE,
DY.S.P. OFFICE, IRINJALAKUDA, 680121.
4 SHRUTHI JAYAPRAKASHAN,
AGED 26 YEARS
D/O JAYAPRAKASHAN, CHEMBAPULLY VEEDU, VADANAPALLY,
THRISSUR -680 614.
R4 BY ADV. SRI.THIYYANNOOR RAMAKRISHNAN
R4 BY ADV. SRI.ARUN KUMAR.P
R4 BY ADV. SMT.AMBIKA RADHAKRISHNAN
SRI.T.R.RENJITH, PUBLIC PROSECUTOR
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
17.12.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
B.A No.8763 of 2019
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(CR)
ALEXANDER THOMAS, J.
===========================
B.A No.8763 of 2019
===========================
Dated this the 17th day of December, 2019
ORDER
The petitioners herein have been arrayed as the accused Nos.1 to 5 among the five accused initially arrayed in the instant Annexure-B Crime No.773/2019 of Vadanappally Police Station. The offences initially registered in the said crime are those punishable under Secs.354A(1)(ii), (iii), (iv), 509 & 506 of the IPC. As the lady defacto complainant in this case belongs to Scheduled Caste community (SC), the Police after investigation has later added the offence as per Secs. 3(2)(v)(a) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 as amended. At the outset, the Prosecutor would point out that the investigation has subsequently revealed that the 4th petitioner (accused No.4) belongs to SC community and therefore, the offence as per the abovesaid SC/ST (POA) Act cannot be pressed into service as against him. Further that, the Police after investigation has also found that the allegations raised as against the B.A No.8763 of 2019 4 3rd and 5th petitioners (A3 and A5) are factually false and investigation agency has already filed report before the Special Court concerned deleting the said A3 and A5 from the said accused array. Therefore, as of now, only the 1st and 2nd petitioners (A1 and A2) are in the accused array, whose anticipatory bail plea alone become the subject matter of this case. Needless to say that the plea for anticipatory bail in respect of the 3rd and 5th petitioners (A-3 & A-5) has become redundant as they are no longer arrayed in the accused array. Further, since the offence as per Sec. 3(2)(v)(a) of the SC/ST (POA) Act, 1989 has not been pressed into service as against the 4 th petitioner (A4) and as all the other offences alleged against him as per the IPC are bailable offences. Therefore, his plea for anticipatory bail has also become redundant and it is for him to work out his remedies by approaching the competent criminal court concerned by seeking bail under Sec.436 of the Cr.P.C. for grant of bail in cases involving only bailable offences.
2. In short, the prosecution case is that the accused persons and the lady defacto complainant were activists of a political youth organisation viz. Democratic Youth Federation of India (DYFI) and that out of enmity, the 1st and 2nd petitioners herein (A1 and A2) have B.A No.8763 of 2019 5 been threatening and intimidating the lady defacto complainant through phone calls etc. since May 2018 and talking to her in sexually lewd and sexually coloured manner etc. and thus denigrating her modesty as a woman. Further that, the accused persons have threatened her that they have in their possession her naked pictures and videos and that if the lady gives any complaint to the Police, they would kill her and A1 had also lifted his dhoti and showed it to her during a scuffle.
3. After hearing both sides and after careful evaluation of the facts and circumstances of this case, more particularly, taking into account some of the pleas made by Sri.P.Arunkumar, learned Advocate appearing for R-4 (lady de facto complainant), this Court had suggested to both sides to thrush out their differences by mutual discussion. The learned Advocate appearing for the petitioners and the learned Advocate appearing for R-4 has now submitted that the parties have entered into some discussions and the learned Advocates appeared would submit that it is hoped that the said discussion may bring them results.
B.A No.8763 of 20196
4. Be that as it may, it has been noted at the outset that all the offences in relation to Sec.354A and the sub-sections thereto are all bailable offences going by the part-I of the Schedule appended to the Cr.P.C, which deals with the classification of the offences. The offence as per Sec.3(1)(va) of the Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act is only in relation to committing an offence in the IPC, which is included in the Schedule of the to the SC/ST (Prevention of Atrocities) Act, 1989 as amended. Sec.3(2)(va) stipulates that whoever, not being a member of a Scheduled Caste or a Scheduled Tribe-commits any offence specified in the Schedule, against a person or property, knowing that such person is a member of a Scheduled Caste on a Scheduled Tribe or such property belongs to such member, shall be punishable with such punishment as specified under the Indian Penal Code, for such offences and shall also be liable to fine. All the offences included in the Schedule to the SC/ST (Prevention of Atrocities) Act, 1989 are the offences mentioned therein as per the IPC. Sec.354A of the IPC is one such offence. So if the offence in IPC which is included in the Schedule to the SC/ST Act is a bailable offence, then the offence as per Sec.3(2)(va) for B.A No.8763 of 2019 7 commencing such scheduled IPC offence is also a bailable offence. The provisions of the SC/ST (Prevention of Atrocities) Act, 1989 as amended does not make any specific special provisions, regarding as to whether any offences as per the said Act are bailable or non- bailable or as to whether it is cognizable or non-c0gnizable. Therefore, then it will have to depend on the classification of offences in Part-II of the Schedule appended to the Cr.P.C is related to the classification of offences. Since the offence as per Sec.354A and the various sub-sections thereto are bailable offences, it goes without saying that the offence as per Sec.3(2)(va) of the SC/ST (Prevention of Atrocities) Act, 1989, for allegedly having committed the abovesaid IPC offences in the Schedule to the said Act, will also be a bailable offence, so long as the principal offences as per the IPC are bailable offences. Hence, suffice to say that in the instant case, the offences alleged against the petitioner are those punishable under Secs.354A and its various sub-sections and Sec.3(2)(va) of the SC/ST (Prevention of Atrocities) Act, 1989. Since that is the position, all the above alleged offences are bailable offences. Further, as all the above alleged offences are thus bailable offences, the plea for anticipatory B.A No.8763 of 2019 8 bail under Sec.438 Cr.P.C., which is only in respect of non-bailable offences, is redundant and cannot be pressed into service. Hence, the proper remedy of the petitioners is to move the competent court concerned (viz., Special Court concerned) for bail as per Sec.436 of the Cr.P.C, which is for bailable offences. In a case like this, where the accused person approaches the Special Court concerned and makes an application under Sec.436 of the Cr.P.C, the said court is obliged to grant bail, as all the offences alleged therein are bailable offences. The position in that regard is declared and ordered.
5. The learned Prosecutor has already submitted that A-3 & A-5 are deleted from the accused array and that as against A-4, the offence as per Sec.3(2)(va) of the Act has been deleted, as he belongs to SC community. In the light of these aspects, it is for the accused persons concerned to work out their remedies as per law.
6. Before parting of this case, this Court will only observe that the petitioners on the one hand and the 3rd respondent/de facto complainant on the other hand are all youngsters in the brim of their youth and this Court hopes and expects that they would show the maturity and that the petitioners would rise up to the occasion and B.A No.8763 of 2019 9 show more seriousness in dealing with issues in life and also to ensure that they show due respect to women in general and more particularly, to the 4th respondent/lady de facto complainant, who is stated to be a member of their own organization. Paying lip service to the cause of backward classes and weaker sections of the society, is certainly not a bad thing. But if it is divorced from actual way of life, such pretence is of no benefit and would only lead to the weaker sections of the society losing faith in the fabric of our social and democratic way of life.
With these observations and directions, the above Bail Application will stand disposed of.
Sd/-
ALEXANDER THOMAS JUDGE vgd B.A No.8763 of 2019 10 APPENDIX PETITIONER'S/S EXHIBITS:
ANNEXURE A COPY OF THE COMPLAINT DATED 25/10/2019 SUBMITTED BY THE DE FACTO COMPLAINANT ANNEXURE B COPY OF THE F.I.R AND F.I.S IN CRIME NO.773/2019 OF VADANAPALLY POLICE STATION.
ANNEXURE C COPY OF THE COMPLAINT DATED 12/10/2019 SUBMITTED BY THE DE FACTO COMPLAINANT TO THE DISTRICT POLICE CHIEF, THRISSUR.
ANNEXURE D COPY OF THE LETTER DATED 13/10/2019
SUBMITTED BY THE DE FACTO COMPLAINANT.