Kerala High Court
Bindu vs State Of Kerala on 24 October, 2019
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
THURSDAY, THE 24TH DAY OF OCTOBER 2019 / 2ND KARTHIKA, 1941
CRL.A.No.1169 OF 2019
AGAINST THE ORDER/JUDGMENT IN CRMP 5425/2019 DATED 25-09-2019 OF
DISTRICT & SESSIONS COURT, ALAPPUZHA
CRIME NO.1867/2019 OF Chengannoor Police Station , Alappuzha
APPELLANT/S:
1 BINDU, AGED 35 YEARS, W/O. BINU,
VISHNU BHAVAN, THONNAKKAD MURI,
PULIYOOR VILLAGE, CHENGANNUR, ALAPPUZHA.
2 VEENA, AGED 18 YEARS, D/O. BINU,
VISHNU BHAVAN, THONNAKKAD MURI,
PULIYOOR VILLAGE, CHENGANNUR, ALAPPUZHA.
BY ADVS.
SRI.P.THOMAS GEEVERGHESE
SRI.E.S.FIROS
RESPONDENT/S:
STATE OF KERALA
REPRESENTED BY INSPECTOR OF POLICE,
CHENGANNUR POLICE STATION, THROUGH THE PUBLIC
PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031
OTHER PRESENT:
SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
24.10.2019, ALONG WITH CRL.A.1170/2019, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
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Crl.A.No.1169 & 1170 Of 2019
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
THURSDAY, THE 24TH DAY OF OCTOBER 2019 / 2ND KARTHIKA,
1941
CRL.A.No.1170 OF 2019
AGAINST THE ORDER/JUDGMENT IN CRMP 5425/2019 DATED 25-09-
2019 OF DISTRICT & SESSIONS COURT, ALAPPUZHA
CRIME NO.1876/2019 OF Chengannoor Police Station ,
Alappuzha
APPELLANT/S:
BINU, AGED 39 YEARS, S/O.LAKSHMANAN,
VISHNU BHAVAN, THONNAKKAD MURI,
PULIYOOR VILLAGE, CHENGANNUR, ALAPPUZHA.
BY ADVS.
SRI.P.THOMAS GEEVERGHESE
SRI.E.S.FIROS
RESPONDENT/S:
STATE OF KERALA,
REPRESENTED BY INSPECTOR OF POLICE,
CHENGANNUR POLICE STATION,
THROUGH THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM - 682 031.
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
24.10.2019, ALONG WITH CRL.A.1169/2019, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
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Crl.A.No.1169 & 1170 Of 2019
ALEXANDER THOMAS, J.
-----------------------------
Crl.A.No.1170 & 1169 Of 2019
---------------------------------
Dated this the 24th day of October, 2019.
JUDGMENT
The sole appellant in Crl.A.No.1170/2019 and the two appellants in Crl.A.No.1169/2019 have been arrayed as accused Nos.1 to 3 respectively among the 3 accused in the instant Anx-A Crime No.1876/2019 of Chengannur Police Station, which was initially registered for offences punishable under Secs.294(b), 447, 326, 323 & 34 of the I.P.C., on the basis of the complaint of the de facto complainant in respect of the incidents that had happened on 12.7.2019 at about 6:30 p.m. The Police after investigation has later added the offence as per Secs.3(1)(r) and 3(2)(v)(a) of the SC/ST (POA) Act, 1989 as amended as well as Sec.506(ii) of the I.P.C.
2. The appellants herein had moved Crl.M.P.No.5425/2019 before the Sessions Court, Alappuzha, seeking anticipatory bail for their involvement in the abovesaid case and the Sessions Court as per the impugned order dated 25.9.2019 in Crl.M.P.No.5425/2019 (arising out of Crime ::4::
Crl.A.No.1169 & 1170 Of 2019 No.1867/2019 of Chengannur Police Station) has dismissed the plea for anticipatory bail on the ground that the plea for anticipatory bail cannot be entertained on merits in view of the statutory bar engrafted in Secs.18 & 18A of the SC/ST (POA) Act, 1989, as amended. Being aggrieved by the said order dated 25.9.2019 rendered by the Sessions Court dismissing the plea for anticipatory bail, the appellants have moved the abovesaid Criminal Appeals under Sec.14A of the SC/ST (POA) Act, 1989, as amended.
3. Heard Sri.P.Thomas Geeverghese, learned counsel for the appellants and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for the respondent-State.
4. The brief of the prosecution case in relation to Anx-A Crime No.1876/2019 of Chengannur Police Station is that the de facto complainant and his wife belongs to Scheduled Caste community, that the de facto complainant's wife is the ward member of the local Municipality concerned, that on 12.7.2019 at about 6:30 p.m., due to previous animosity towards the wife of the de facto complainant, the accused persons abused the de facto complainant, that A1 had beaten the de facto complainant with ::5::
Crl.A.No.1169 & 1170 Of 2019 iron rod which caused fracture to left forearm and that A2 & A3, who are the wife and daughter respectively of A1 had also instigated and abetted A1 in the abovesaid offence and A2 had caught hold of the hair of the de facto complainant and A3 had attacked the daughter of the de facto complainant, etc.
5. The learned counsel for the appellants would point out that the abovesaid allegations are false and fabricated and a close analysis of the prosecution case would make it clear like the day light that the alleged place in question is the residential house of the appellants and that the appellants and de facto complainant's family are immediate neighbours and both of them were victims of August, 2018 flood and they have got different relief compensation amounts, that the de facto complainant has got Rs.1.8 lakhs whereas the appellants' family got Rs.18,000/- and this huge difference was due to the wrongful interference of the local Municipal ward member, who is none other than the wife of the de facto complainant. That A1 had filed a complaint to the District Collector, stating that he had suffered identical damages and thus got his compensation enhanced to Rs.1.8 lakhs. In the said complaint made by A1 to the District Collector, certain other ::6::
Crl.A.No.1169 & 1170 Of 2019 allegations were also made against the wife of the de facto complainant, who is the ward member. On the day in question the de facto complainant's wife had trespassed into the appellants' house and confronted with them as to how they had the courage to file a complaint against her and she had taken away the title deed, ration card, aadhar card, etc., of the appellants and this led to altercations and mutual scuffle between the parties and the de facto complainant fell down and injured his hand, etc. Further it is pointed out that the allegations projected purportedly invoking the SC/ST (POA) Act is only to the effect that the accused persons called the de facto complainant's wife's caste name on previous occasion and he had called out her caste name on the day in question. Nowhere in the FI statement it is stated that the alleged calling out of her caste name is in the public place as contemplated in Sec.3(1)(r) of the SC/ST (POA) Act, 1989. Further the offence as per Sec.3(2)(v)(a) of the said Act would come into play only because the I.P.C offence alleged in this case are included in the SC/ST (POA) Act, 1989, etc.
6. The learned Prosecutor has opposed the plea for grant of anticipatory bail and has pointed out that in view of the bar ::7::
Crl.A.No.1169 & 1170 Of 2019 contained in Secs.18 & 18A of the abovesaid Act, the plea for anticipatory bail is not entertainable by this Court on merits.
7. After hearing both sides and after careful evaluation of the facts and circumstances, more particularly, examining the contents of the FI statement in this case, it is found as follows, only for the limited purpose of consideration of the anticipatory bail application:
A reading of the FI statement would indicate that the allegation made therein is that A1 used to call the de facto complainant's wife by her caste name on previous occasions and on the day in question A1 and his friend called out her caste name and that thereafter scuffle was happened and knowing about the scuffle some people in the locality gathered there. A reading of the FI statement would indicate that A1 and his friend had called caste name of the de facto complainant's wife. It appears that initially the said friend of A1 was also included in the accused's array and the Prosecutor would apprise that later the said friend of A1 has been deleted from the accused's array. There are no specific assertions or allegations for the alleged calling out the caste name within public view as contemplated in Sec.3(1)(r) of the abovesaid ::8::
Crl.A.No.1169 & 1170 Of 2019 Act. It appears that the scene of occurrence of the incident is right in front of the house of the parties. Further the inclusion of the offence under Sec.3(2)(v)(a) of the Act is only because I.P.C offences are including in the schedule to the SC/ST (POA) Act,1989 and on the premise that accused persons knew that the de facto complainant's wife belong to Scheduled Caste community. In the light of this crucial aspect, this Court is inclined to take the view, only for the limited purpose of consideration of the present application, that a prima facie case of offence in terms of the SC/ST (POA) Act is not made out and therefore the bar engrafted in Secs.18 & 18A of the abovesaid Act in the matter of entertaining anticipatory bail pleas will not be applicable in this case. This Court will have the competence to consider the application under Sec.438 of the Cr.P.C on merits in the facts and circumstances of this case. The abovesaid findings and observations made by this Court is only for the limited purpose of consideration of the anticipatory bail application and the said findings and observations will have no application to any other proceedings in relation to the very same case, which will have to be decided independently and untrammelled and uninfluenced by any of the observations made ::9::
Crl.A.No.1169 & 1170 Of 2019 hereinabove. However, it is seen that the de facto complainant has suffered fracture on his right forearm and that non bailable offence as per Sec.326 of the I.P.C is thus made out going by the prosecution materials. But at the same time, it is seen that no serious allegations are made out either as against A2 (A1's wife) or as against A3, who is 18 year old daughter of A1 in respect of the non bailable offences. Hence, this Court is not inclined to grant anticipatory bail to A1 and on the other hand, this Court is inclined to grant anticipatory bail in favour of A2 & A3.
8. Accordingly, it is ordered that in the event of the appellants in Crl.A.No.1169/2019 (A2 & A3) being arrested in relation to the instant Crime No.1876/2019 of Chengannur Police Station, then the said appellants shall be released on bail on their separately executing bonds for Rs.40,000/- (Rupees Forty Thousand only) and on their separately furnishing two solvent sureties for the like sum each both to the satisfaction of the Investigating Officer concerned. Further it is also ordered that the grant of bail will be subject to following conditions:-
(a) A2 & A3 shall report before the Investigating Officer as and when directed by the said Officer.
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Crl.A.No.1169 & 1170 Of 2019
(b) A2 & A3 shall not involve in any criminal offences of similar nature.
(c) A2 & A3 shall fully co-operate with the investigation.
(d) A2 & A3 shall not influence witnesses or shall not tamper or attempt to tamper evidence in any manner, whatsoever.
(g) If A2 & A3 violate all or any of the bail conditions, then the jurisdictional court concerned will stand hereby authorised, to consider the plea for cancellation of bail, if required, in accordance with law.
9. The learned counsel for the appellant in Crl.A.No.1170/2019 (A1) would submit on the basis of instructions of his party that A1 will immediately surrender and personally appear before the Investigating Officer concerned in relation to this case so that his bail application could be considered and decided by the jurisdictional court concerned, after hearing the learned counsel for the petitioner and the Prosecutor.
10. Taking note of the abovesaid submission made on behalf of A1, it is ordered that A1 will immediately surrender and personally appear before the Investigating Officer in relation to the instant Crime for interrogation purposes at 9:00 a.m., on any day on or before 8.11.2019 or within such other time that may be extended by the Investigating Officer concerned. A1 will fully co- operate with the above interrogation process. After the ::11::
Crl.A.No.1169 & 1170 Of 2019 interrogation process is over, the Investigating Officer will produce A1 before the jurisdictional special court concerned, whereupon the said court will consider the bail application of the petitioner in terms of Sec.437 of the Cr.P.C on the same of his production, after affording a reasonable opportunity of being heard to him through his counsel as well as the Prosecutor and after taking due note of the facts and circumstances in the case. The Special Court concerned will bear in mind that the bar under Secs.18 & 18A of the SC/ST (POA) Act even if applicable is pressed into service only at the time of consideration of the anticipatory bail application and not in respect of an application under Sec.437 of the Cr.P.C. So the bar will not be applicable for consideration of the bail application of A1 which will be in term of Sec.437 of the Cr.P.C in which the bar under Secs.18 & 18A will have any application whatsoever.
With these observations and directions, the above Criminal Appeals will stand disposed of.
Sd/-
ALEXANDER THOMAS, Judge.
bkn/-
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Crl.A.No.1169 & 1170 Of 2019 APPENDIX OF CRL.A 1169/2019 PETITIONER'S/S EXHIBITS:
ANNEXURE A CITIZEN'S COPY OF FIR IN CRIME NO.
1876/2019 OF CHENGANNUR POLICE STATION.