Kerala High Court
Sreejith vs State Of Kerala on 9 October, 2019
Equivalent citations: AIRONLINE 2019 KER 553
Author: Mary Joseph
Bench: Mary Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
WEDNESDAY, THE 09TH DAY OF OCTOBER 2019 / 17TH ASWINA, 1941
CRL.A.No.1071 OF 2019
AGAINST THE ORDER/JUDGMENT IN CMP 483/2019 DATED 31-08-2019
OF SPECIAL COURT FOR SC/ST (POA)ACT, MANNARKKAD
CRIME NO.425/2019 OF CBCID, PALAKKAD
APPELLANTS/PETITIONERS 3 & 4/ACCUSED 5 & 7:
1 SREEJITH, AGED 29 YEARS
S/O. SHIVAN S. I., SREENILAYAM, MANGALAM,
KANNAMBRA P. O., PALAKKAD
2 VAISHAG K., AGED 28 YEARS
S/O. KALADHARAN, THACHAMOOCHIKKL HOUSE,
VILAYANCHATHANOOR P.O., PALAKKAD
BY ADVS.SRI.P.VIJAYA BHANU (SR.)
SRI.M.REVIKRISHNAN
SRI.AJEESH K.SASI
SRI.THOMAS J.ANAKKALUNKAL,CGC
SRI.V.C.SARATH
SRI.VIPIN NARAYAN
SMT.POOJA PANKAJ
SRUTHY N. BHAT
RESPONDENT/RESPONDENT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM - 682 031
OTHER PRESENT:
PP C.K.PRASAD
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
09.10.2019, ALONG WITH CRL.A.1079/2019, CRL.A.1080/2019,
CRL.A.1083/2019, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
CRL.A.No.1071 OF 2019 & con. Cases
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
WEDNESDAY, THE 09TH DAY OF OCTOBER 2019 / 17TH ASWINA, 1941
CRL.A.No.1079 OF 2019
AGAINST THE ORDER/JUDGMENT IN CMP 484/2019 DATED 31-08-2019
OF SPECIAL COURT FOR SC/ST (POA)ACT, MANNARKKAD
CRIME NO.425/2019 OF CBCID, PALAKKAD , Palakkad
APPELLANT/PETITIONER NO.2/ACCUSED NO.6:
JAYESH
AGED 30 YEARS
S/O. VELAYUDHAN, KARINGULANGARA HOUSE,
VAVULLIPURAM P.O., ALATHUR, PALAKKAD
BY ADVS.SRI.P.M.RAFIQ
SRI.M.REVIKRISHNAN
SRI.AJEESH K.SASI
SRI.V.C.SARATH
SRI.VIPIN NARAYAN
SMT.POOJA PANKAJ
SRUTHY N. BHAT
RESPONDENT/RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM - 682 031
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
09.10.2019, ALONG WITH CRL.A.1071/2019, CRL.A.1080/2019,
CRL.A.1083/2019, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
CRL.A.No.1071 OF 2019 & con. Cases
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
WEDNESDAY, THE 09TH DAY OF OCTOBER 2019 / 17TH ASWINA, 1941
CRL.A.No.1080 OF 2019
AGAINST THE ORDER/JUDGMENT IN CRMC 483/2019 DATED 31-08-
2019 OF SPECIAL COURT FOR SC/ST (POA)ACT/ADDITIIONAL
SESSIONS COURT, MANNARKKAD
CRIME NO.425/2019 OF CBCID, PALAKKAD,
APPELLANTS/ACCUSED 2,3 & 8:
1 MUHAMMED AZAD, AGED 43 YEARS
S/O. A.M. IBRAHIM, SAHIB HOUSE, EAST STREET,
KODUVAYUR, KALLEKKAD, PALAKKAD. (SCPO-4175 AR
CAMP, KALLEKKAD, PALAKKAD)
2 RAFEEK, AGED 48 YEARS
S/O MUHAMMEDLI, NEDIYEADATH VEEDU, ALANGAD
(P.O), P-3827, QUARTER MASTER, AR CAMP,
KALLEKKAD, PALAKKAD
3 MAHESH K.C., AGED 38 YEARS
S/O. CHANDRAN, KANDEMKAVIL, PALLIPPADI,
KIANJIRAPUZH, MANNARKKAD (CPO-6789, AR CAMP,
KALLEKKAD, PALAKKAD)
BY ADVS.SRI.K.RAVI (PARIYARATH)
SRI.A.V.RAVI
RESPONDENT/STATE OF KERALA:
THE STATE OF KERALA
REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, PIN - 682 031, (CR. NO.
425/CB/PKD/R/19 OF CRIME BRANCH, PALAKKAD)
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
09.10.2019, ALONG WITH CRL.A.1071/2019, CRL.A.1079/2019,
CRL.A.1083/2019, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
CRL.A.No.1071 OF 2019 & con. Cases
4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
WEDNESDAY, THE 09TH DAY OF OCTOBER 2019 / 17TH ASWINA, 1941
CRL.A.No.1083 OF 2019
AGAINST THE ORDER/JUDGMENT IN CMP 483/2019 DATED 31-08-2019
OF SPECIAL COURT FOR SC/ST (POA)ACT/ADDITIONAL SESSIONS
COURT, MANNARKKAD
CRIME NO.425/2019 OF CBCID, PALAKKAD
APPELLANT/4TH ACCUSED:
PRATHAPAN,
AGED 32 YEARS
S/O VELLA, KALLEKKAD (H), KUTHANOOR, PALAKKAD
(CPO-6712, AR CAMP, KALLEKKAD, PALAKKAD).
BY ADVS.SRI.K.RAVI (PARIYARATH)
SRI.A.V.RAVI
RESPONDENT/STATE OF KERALA:
THE STATE OF KERALA
REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, (CR.NO 425/CB/PKD/R/19,CRIME
BRQANCH PALAKKAD).
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
09.10.2019, ALONG WITH CRL.A.1071/2019, CRL.A.1079/2019,
CRL.A.1080/2019, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
CRL.A.No.1071 OF 2019 & con. Cases
5
JUDGMENT
[ CRL.A.1071/2019, CRL.A.1079/2019, CRL.A.1080/2019, CRL.A.1083/2019 ] Dated this the 9th day of October 2019 Accused Nos.2, 3, 4, 5, 6, 7 and 8 in Crime No.425/CB/PKD/R/2019 of Crime Branch, Palakkad are the appellants. Order dated 31.08.2019 was passed by the Special Court for Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) [for short 'SC/ST(POA)') cases, Mannarkkad dismissing CMP No.483 and 484/2019 applications filed by them under Section 438 Cr.P.C. The applications were dismissed and pre-arrest bail sought by the appellants were declined for the reason that prima facie materials are available to attract the offences under the SC/ST(POA) Act and therefore, the Special Court is barred from exercising the discretionary jurisdiction under Section 438 Cr.P.C to grant pre-arrest bail to petitioners. The Special Court had also found that grant of anticipatory bail to CRL.A.No.1071 OF 2019 & con. Cases 6 petitioners would interfere and hamper with the smooth progress of investigation.
2. It is contended by Sri.Vijayabhanu, the learned Senior Counsel on behalf of appellants in Crl.Appeal Nos.1071/2019 and 1079/2019 that though the SC/ST(POA) Act creates bar under Section 18 and 18A against exercise of authority to grant pre- arrest bail, High Courts are not barred from exercising it after getting convinced on a perusal of the materials available that those are inadequate to attract the offences under the SC/ST(POA) Act or those are totally false ones, concocted either by the victim or his relatives. According to him, whether the bar under Section 18 and 18A will operate or not, against invocation of power under Section 438 Cr.P.C in a crime depends on the veracity of the allegations and attraction of the ingredients of the offences from the allegations raised. To substantiate his contentions the learned counsel has also relied on certain decisions which are dealt with hereunder :
3. In Crl.A. No.787/2018 (Kiran Madhukar Ingle v. State of Maharasthra), the High Court of Bombay while considering the CRL.A.No.1071 OF 2019 & con. Cases 7 maintainability of an application seeking pre-arrest bail in view of Section 18 of the Act of 1989, held in paragraphs 13 and 15 which are extracted hereunder :
"13. It is explicitly made clear that the Court of Sessions or High Court can entertain the application for pre-arrest bail to ascertain its maintainability. The law does not permit to reject the application for anticipatory bail merely because the case has been registered under Section 3 of the Act of 1989. But, it is incumbent on the part of the Court to examine as to whether the applicant at all is a fit person to be treated as accused of the crime registered under the Act of 1989. Section 18 of the Act of 1989 does not bar judicial scrutiny of the accusation made in the complaint. When the Court is held competent to enter into scrutiny of the allegations to determine whether the person can be treated as accused of commission of offence under the Act of 1989, then question would arise as to what extent the Court would be justified to examine material to determine the prima facie case against him.
14.xx xx xx xx xx xx
15. The exposition of law as referred above unequivocally pointed to the inference that the application for anticipatory bail can be entertained only on the ground of inapplicability of the provisions of Act of 1989 and it would be ascertainable only on perusal of recitals of the FIR or complaint and not beyond that, because once it is gathered from the FIR that the applicant is accused of committing the offence prescribed under Section 3 of the Act of 1989, a bar under Section 18 of the Act of 1989 would instantly operate against him. Therefore, the Courts are CRL.A.No.1071 OF 2019 & con. Cases 8 permitted to enter into roving enquiry in regard to sustainability of accusation nurtured on other material to test veracity of the allegations made in the FIR also not permissible under the law."
4. The offence under Section 3(1)(r)(s) was allegedly committed by the appellants involved in the appeal under consideration of the High Court of Bombay and the Court had taken the view that in spite of the bar under Section 18 of the Act of 1989, against invocation of power under Section 438 Cr.P.C, it is still open to this Court to find out by looking into the recitals in the FIR of the case itself, whether prima facie case is made out by the complainant against the appellants. The court after a scrutiny of the allegations in the FIR, held :
1. "incriminating circumstances to show that intentional insult or intimidation with intent to humiliate the complainant with public view on the part of the appellants are lacking in the case. There is no impediment to arrive at the conclusion that there are no material prima facie on record to draw the inference that the appellants have committed the offence under Section 3(1)(r)(s) of the Act, 1989. As such, there is no statutory bar for this Court to consider the application of the appellants filed under Section 438 of the Cr.P.C. It is also required to take into consideration that other offences of PC applied against present appellants all are of bailable in nature except Section 324 of the IPC. It is rather doubtful as to hold the belt weapon used by CRL.A.No.1071 OF 2019 & con. Cases 9 appellant, as a dangerous weapons or means. Moreover, there are simple injuries caused to first informant. Therefore, custodial interrogation of appellant is not necessary for the sake of investigation. There is also no possibility of absconding of the accused in this crime. So far as the apprehension of tampering with the evidence of prosecution is concerned, the requisite conditions would be imposed on the appellants. In the result, there is no difficulty to allow the present appeals for the relief of anticipatory bail in favour of appellants-accused in the present crime. Hence, appeals deserve to be allowed."
5. A learned Single Judge of this Court had set aside the order declining pre-arrest bail passed by a subordinate court and directed release of the appellant in Crl.A. No.1458 of 2018 on 08.01.2019 for the reason that the allegations that the appellant had committed offence involving sexual harassment against the alleged victim in the month of July 2016 was taken for setting the law in motion only on 01.02.2017 i.e. after about 2 years of the incident and there was no specific plea for the victim in the complaint lodged that she was abused or harassed sexually or otherwise acted to exploit her status as a member of the Scheduled Caste Community. The Single Bench held in Jishnu v. State of Kerala [2019 (1) KLT 432]:
CRL.A.No.1071 OF 2019 & con. Cases 10 "8. As held by the Apex Court mere unilateral allegation by any individual belonging to any caste, when such allegation is clearly motivated and false, cannot be accepted as gospel truth to deprive a person of his liberty without an independent scrutiny. The exclusion of provision of anticipatory bail cannot possibly be treated as applicable when no case is made out or allegations are patently false or ill motivated. The protection of innocents against abuse of law is part of inherent jurisdiction of court being part of access to justice and to protect individual liberty against any oppressive action. At the same time, S.18 of the Act would apply in all its vigor in deserving cases where on evaluation of the prosecution allegation, the court finds the case to be prima facie genuine warranting custodial interrogation and pre-trial arrest and detention."
6. Another Single bench of this Court in Damodaran v.
State of Kerala [2018 (1) KLT 883] had taken a view while reversing the order declining bail by a subordinate court in a case wherein an offence under the SC/ST(POA) Act is involved and granting pre-arrest bail that :
"The materials so far collected by the prosecution are not sufficient to show that the petitioners had instigated or intentionally aided the deceased to commit suicide. The prosecution has no case that there was any positive act on the part of the petitioners instigating or intentionally aiding the deceased to commit suicide and that they intended the consequence to follow, it being commission of suicide by the CRL.A.No.1071 OF 2019 & con. Cases 11 deceased. In such circumstances, I am of the view that it is not imperative for an effective investigation of the case to curtail the personal liberty of the petitioners. It appears that custodial interrogation of the petitioners is not necessary. The prosecution has no case that the petitioners have got criminal antecedents."
Rather than the FIR, the court had also done a scrutiny of the materials collected by the prosecution till date on which appeal came up for its consideration.
The court had even gone into the suicide note and held :
"The Suicide note, as stated earlier, was not written by the deceased in his handwriting. He had got it prepared by an Advocate Clerk. It mentions the names of the petitioners as persons responsible for the suicide. However, it does not state the acts committed by the petitioners or the third accused which led and compelled the deceased to commit suicide. Mere mentioning the names of the accused in the suicide note, without particulars of the acts committed by them, is not sufficient to implicate the accused for the offence punishable under Section 306 IPC."
7. In Pratikkumar Rajeshbhai Patel v. State of Gujarat [2019 SCC Online Guj 137] relied on by the learned counsel the High Court of Gujarat at Ahmedabad found that in the FIR lodged by the victim, a plea that the accused is not a CRL.A.No.1071 OF 2019 & con. Cases 12 member of the SC/ST caste is not taken and therefore, held that the amended provision of Section 18 of the Act creating the bar will not come into play. The appeal was allowed and pre-arrest bail was granted after setting aside the order of the Special Court declining bail.
8. Reliance was also placed on Kingshuk Gupta v. Sate of West Bengal (CRM No.10429 of 2018), in which the allegation of the defacto complainant was, whether a publication titled as "Mrittu Noi Sabarpallir Chinta Bhat" made by the appellant, who was a reporter has caused insult or intimidation or an act to promote feelings of enmity, hatred or ill-will against the members of the said community disclosing offences under Section 3(1)(r) (u) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. In the above circumstances it was contended that the petitioner is not entitled to get pre-arrest bail in view of the bar under Section 18A of the SC/ST(POA) Act. The maintainability of the petition was considered by the Calcutta High Court and held that no man of reasonable prudence could have come to the conclusion that news item was published to CRL.A.No.1071 OF 2019 & con. Cases 13 insult, humiliate or promote feelings of enmity, hatred or ill-will amongst the members of Sabar Community. Allegation of the prosecution that such publication hurt the sentiments of Sabar Community or caused breach of peace or ill-will amongst them are so patently absurd and inherently improbable that no case under the Act could have been registered. Contents of the publication do not disclose any insult, intimidation, enmity, hatred or ill-will towards the community and any fanciful inference in the FIR dehors the primary facts cannot constitute the ingredients of the alleged offences justifying the applicability of the exclusionary bar under Sections 18/18A of the Act. Accordingly, the petitioner was directed to be released on bail in the event of his arrest subject to certain conditions imposed on him. The Calcutta High Court has observed in the case (Supra) that notwithstanding incorporation of Section 18A into the Act, limited jurisdiction of the Court to examine the uncontroverted allegations in the FIR to see whether such allegations when taken up at their face value, disclose ingredients of such offence is not taken away.
CRL.A.No.1071 OF 2019 & con. Cases 14
9. In Salim Abdul Shaikh v. The State of Mharashtra (Crl.A. No.1030 of 2018), the court granted pre-arrest bail to the appellant after finding that the bar under Section 18 of the SC/ST(POA) Act is not applicable to the case which was seized by it. The court below found after perusal of the FIR containing narration of the incident by the first informant that those do not make out a case that the accused had intentionally touched a girl named Shrutika and that touch was sexual in nature. Therefore, the court found that the offence under Section 3(1)(w)(ii) was unlikely to be attracted prima facie for want of allegations in the FIR. Thus, jurisdiction under Section 438 was exercised and pre-arrest bail was granted.
10. The Apex Court has held in Dr.Subhash Kashinath Mahajan v. State of Maharashtra and another [(2018) 6 SCC 454] that to avoid false implication of innocent under Atrocities Act, preliminary inquiry must be made by Deputy Superintendent of Police (DSP) concerned prior to registration of an FIR to find out whether an offence under Atrocities Act is made out or that the allegations are frivolous or motivated. The Apex Court held CRL.A.No.1071 OF 2019 & con. Cases 15 that the inquiry must be time bound and should not exceed seven days and even if case is registered after preliminary inquiry, arrest of the accused is not mandatory.
11. Sri.Ravi K(Pariyarath), learned counsel has also advanced arguments of the very nature on behalf of the appellants in Crl.A Nos.1080/2019 and 1083/2019.
12. It is emanated from the discussion made on the basis of the decisions cited by the learned counsel, that despite the bar under Section 18 and 18A, the courts are not precluded from conducting a preliminary enquiry based on FIR or complaint in a case wherein pre-arrest bail is applied for by the accused allegedly involved in offences under the SC/ST(POA) Act to see whether the allegations therein would prima facie disclose the ingredients to constitute the offence or that those are false ones. In all the decisions except Damodaran's case (supra) the various High Courts and Apex Court were of the opinion that the preliminary inquiry to get convinced of the twin aspects stated above must be confined to a scrutiny of FIS or complaint. Therefore, the Courts dealing with the application seeking pre- CRL.A.No.1071 OF 2019 & con. Cases 16 arrest bail in a case against the petitioner involving offences under the SC/ST(POA) Act must see whether the allegations in the FIS lodged or the complaint filed by the victim would attract any offences under the Act against the appellants or are totally false ones.
13. Therefore, it has come out from a discussion of the above cases that the bar either under Section 18 or 18A is not an absolute one, that restrains the courts even from entertaining applications filed under Section 438 Cr.P.C or in other words, the courts which are in seizin of applications seeking pre-arrest bail, must look into the averments of the first informant or complainant either in the FIS lodged or in the complaint filed to set the law in motion, to see whether those are adequate to prima facie attract offences for which the crime is registered against the accused or are patently false ones.
14. In view of the position of law emerged from the decisions supra, this Court is not restrained from looking into the veracity of the allegations in the FIS to see whether the allegations are false or would attract the offence alleged in the CRL.A.No.1071 OF 2019 & con. Cases 17 FIR based on materials. As is revealed from the Case Diary, Crime No.443/19 was registered at Ottapalam Police Station, following the finding of the dead body of Mr.Kumar N.K., a CPO- 6699 of Armed Reserve Camp, Kallekkad, Palakkad near an electric post that stands on the northern side of the railway track situated one kilometer westwards from the Lakkidy Railway Station at 22.15 hours on 22.05.2019. After getting report of the incident from the Station Master of Lakkidy Railway Station, the SHO of Ottapalam Police Station reached the spot followed by Sub Inspector of Police, Ottapalam. The body was got identified to be that of Sri.Kumar N.K., CPO-6699 of A.R.Camp, it was removed from the railway track to a convenient and safer location and a scene guard was posted. Crime No.443/2019 under Section 174 Cr.P.C was registered by the Sub Inspector of Police, Ottapalam Police Station on the same day. Investigation was commenced by ISHO of Ottapalam. Lateron investigation was entrusted to the Deputy Superintendent of Police, D.C.R.B, Palakkad vide order No.B3-17315/2019/TSR dated 01.08.2019 and was conducted by him during the period from 02.08.2019 till CRL.A.No.1071 OF 2019 & con. Cases 18 04.08.2019. Subsequently a petition was filed by Smt.Sajini, W/o.Sri.Kumar and based on that the case was transferred to Crime Branch, vide order dated 02.08.2019 No.D3- 112096/2019/PHQ and the case was re-registered as Crime No.425/CB/PKD/R/2019 at CBCID Head Quarters. Accordingly, in obedience to proceedings No.D1-5523/2019/CB-PKD(1) dated 04.08.2019 of SP, CBCID, Palakkad, thorough investigation in the case was held.
15. During the course of investigation by local police, a suicide note allegedly written by deceased Kumar N.K. wherein involvement of Deputy Commandant and some other policemen was recovered from a place near to Lakkidy Railway Station. The recovery of suicide note made tilt in the investigation and further investigation was continued on its basis. It was revealed to the investigating officer that the deceased who belongs to "Irula" caste of Scheduled Tribe community and working as Civil Police Officer at A.R. Camp, Kallekkad, Palakkad was allotted a family quarters No.E/57 vide Order No.330/G/DC AR/17 on 24.04.2017 for staying with his family. Sri.Kumar started residing there with CRL.A.No.1071 OF 2019 & con. Cases 19 his family from April 2017 onwards. In the meantime Smt.Sajini became pregnant and in December, 2018 she went to her ancestral house at Poovar in Thiruvananthapuram for delivery. Since the quarters was in a dilapidated condition, Sri.Kumar was in need of a more comfortable quarter to reside with their new born baby at A.R. Camp, Kallekkad, Palakkad. Quarter No.E 39 became vacant then and Sri.Kumar N.K. Preferred an application for getting the same. Quarter No.E/39 was allotted to him on 05.04.2019 vide proceedings of the 1st accused dated 25.04.2019 itself. In view of the repair works done in the quarters by one Mr.Gireesh Kumar, the pre-occupier, the deceased was made to remit Rs.15,000/- to him. Thereafter Mr.Kumar shifted his furniture and other belongings to the newly allotted quarter No.E/39. After occupying the newly allotted quarters, he had locked it and the key was kept with him.
16. Unlike in other normal cases, the crime in the case on hand was registered under Section 174 Cr.P.C after finding the dead body of Sri.Kumar in the railway track. Thereafter FIS was lodged by Smt.Sajini, W/o.Sri.Kumar. As is revealed from the CRL.A.No.1071 OF 2019 & con. Cases 20 FIS, Smt.Sajini who was away at her ancestral home, had only hearsay information from Kumar about the ill-treatment he faced at A.R. Camp, Kallekkad. The investigating officer also proceeded to incorporate offences in the FIR based on the allegations raised by Sajini in the FIS and available in the suicide note of the deceased. In view of the death of the author of the suicide note, it assumes much relevance in the matter of arriving at a prima facie satisfaction on the attraction of offences incorporated in the FIR. Since FIS was lodged by the wife of Kumar (Deceased) who had only limited direct knowledge or information about the alleged accusations, the recovery of suicide note very proximate to the death and referring to the incidents at the A.R. Camp at the instance of Deputy Commandant and other policemen though not in specific terms undoubtedly paved a major role in the pursuit of investigation. Therefore as directed by the dictums referred to supra, a preliminary inquiry is much warranted into the materials available. Attraction of the offences or involvement of falsity in the allegations can to the best be ascertained from a consideration of both the FIS, the suicide note CRL.A.No.1071 OF 2019 & con. Cases 21 allegedly written by the deceased and the materials obtained by the investigation team on its basis.
17. The suicide note refers about the ill-treatment extended to Sri.Kumar by Deputy Commandant and other civil police officers prior to the former's death. As already stated, deceased Kumar made allegations against the policemen at large and also specific ones against 1st accused and others. It is referred by him in the suicide note that certain officers in his Department insulted him in front of others several times. Consequent to that, as directed by the Deputy Commandant, the quarters which was allotted to him and wherein he was staying was locked after shifting his belongings kept therein to the old quarters by policemen in the camp without his knowledge and in his absence. Following the recovery of the suicide note and based on the allegations therein, Sections 306, 454, 380, 465, 471 r/w Section 34 IPC and Section 3(1)(g)(z), 3(2) (v) & (vii) of SC/ST (POA) Act were incorporated into the FIR. The suicide note being the basis for incorporation of the above serious offences into the crime, preliminary inquiry needs to be held by this Court on its CRL.A.No.1071 OF 2019 & con. Cases 22 basis to see whether the allegations are falsehood or adequate to prima facie attract the offences. The investigation so far held by the investigation team on the basis of allegations made by Kumar in his suicide note brought to light several aspects pointing at the role played by the appellants in the ill-treatment.
18. The veracity of the suicide note was doubted by the learned counsel for the appellants for the reason that it was not recovered on the date of occurrence from the place wherefrom dead body of Kumar was recovered. According to the learned counsel, in a circumstance where, several other articles belonging to Kumar having been recovered from the spot of death, it cannot be taken for granted that the deceased had thrown the suicide note alone away, after wrapping with his mobile phone. According to him, the alleged recovery of it from a place about 13 meters away from the Lakkidy Railway Station itself is a doubtful circumstance. The contention of the learned counsel was that the suicide note might have been concocted by the investigating officer to suit the allegations raised by the wife of the deceased in the FIS against the accused. This Court CRL.A.No.1071 OF 2019 & con. Cases 23 cannot go into those aspects, since the enquiry directed to be held by plethora of decisions was a preliminary inquiry into the allegations contained in the FIR or complaint itself. On reading of the suicide note and the allegations raised by the first informant, the conclusion liable to be drawn prima facie is that Kumar had faced ill-treatment and harassment from his companion Civil Police Officers and the Deputy Commandant. In the circumatances, this Court need not go into an indepth inquiry to see whether the suicide note is a creation of the prosecution. To make this Court to think on the line, proposed by the learned counsel that suicide note in view of its recovery, days after recovery of deadbody, can only be a fabricated document, there must be a tinge of evidence to drive home prejudice of the investigating team against the appellants. The learned Senior Counsel was unable to point out any such circumstances indicating such an enthusiasm for the investigating officer to say that the appellants and the appellants themselves are the perpetrators of the crime. In the case on hand the incorporation of several of the offences into the crime was based on recitals in CRL.A.No.1071 OF 2019 & con. Cases 24 the suicide note of the deceased and there is every justification to hold a preliminary enquiry to see prima facie those are liable to attract the offences. Therefore, a preliminary enquiry was held strictly confined to the FIS lodged by Smt.Sajini, the suicide note and the factums brought to light by the investigation held till date.
19. The accused are alleged as committed the offences under Sections 306 and 454 IPC. Therefore, this Court has to see the recitals in the first information statement and the suicide note allegedly written by the deceased to see whether those would prima facie make out the ingredients of the offences to attract it. From a reading of the above materials primarily the information possibly be gathered was that the victim was made to pass through several situations of ill-treatments and humiliations by his companion policemen. Though a new quarter was allotted to him on 25.04.2019, on the 30 th day i.e. 24.05.2019 itself, the 1st accused allotted the same to A5, who made an application for quarter only on 02.05.2019. On 08.05.2019 Kumar was brought before the 1 st accused by A8, the CRL.A.No.1071 OF 2019 & con. Cases 25 Civil Police officer in charge of Duty Warning Officer. There A1 grabbed his mobile phone and directed the duty officer on that day's duty to keep the same in duty office. A1 has also directed Kumar's stay at barrack. He also prevented his entry at the quarters by directing A3 to lock E-57, the old quarter occupied by him for the time being, so as to deny his access thereto. He was thus prevented from taking his personal belongings necessary to report for duty. Kumar was constrained to continue his stay in barrack. Therefore, he left the barrack and absented himself from attending duty from 09.05.2019. Memos issued to him by Assistant Commandant on 15.05.2019 and 22.05.2019, did not yield results.
20. Superintendent of Police caused to issue deserter notice directing him to furnish reply on 10.07.2019. On 15.07.2019 Kumar reported for duty at A.R. Camp. He also want to meet Superintendent of Police. In his absence, Additional S.P. was met. As directed by him, he met Superintendent of Police on 17.07.2019. Difficulty with regard to denial of quarter was narrated to him. As per the oral direction of S.P., he joined duty CRL.A.No.1071 OF 2019 & con. Cases 26 at A.R. Camp on 18.07.2019. He took leave from 19.07.2019 till 23.07.2019. On 20.07.2019 Kumar came to A.R. Camp with his wife to stay at Quarter NO.E-57, the original quarter with a view to attend the PSC examination on 21.07.2019 and 23.07.2019. In the quarter everything was put in a shattered manner and since it was not fit for accommodation, he was constrained to stay in a lodge with his wife and child. After sending his wife and child to Thiruvananthapuram on 23.07.2019, he travelled to Coimbatore on 24.07.2019 and returned to Ottappalam by a passenger train. He committed suicide at around 9.15 p.m. near Lakkidy Railway Station. These are the sequence of events prior to the death of Kumar revealed from the materials relating to investigation held till date. The factum that Kumar committed suicide is not in dispute. The dispute is only with respect to the involvement of the appellants to drive him to commit suicide. The information about incidents discussed above was collected during investigation held in the case till date. Though specific recitals regarding each incidents are not there in the suicide note, what can be derived on a reading of it was that incidents CRL.A.No.1071 OF 2019 & con. Cases 27 such as taking back possession of quarter No.E-39 from him on the 30th day of its allotment, insult and humiliation severally by superior officer and companion officers of A.R. Camp, removal of his belongings kept in quarter No.E-39 to E-57 without prior notice and against his consent and dumping of those in a scattered manner there, so as to damage relevant credentials belonging to him had caused mental pain and worries to Kumar and those had driven him to put an end to his life. Therefore, those are nothing but prima facie materials gathered by the investigating officer to reach a conclusion that the appellants are guilty of the offence under Section 306, IPC and thereby Section 3(2)(v) of SC/ST (POA) Act.
21. Coming to the attraction of Section 454 IPC, though the allegations are adequate to draw prima facie sustainability of an offence of trespass, materials are insufficient to draw criminal intention while doing so to commit an offence which as proposed by the prosecution is, theft. It is true that the lock put on the quarters allotted to Kumar was opened and the belongings of him kept therein were removed to his old quarters, without his CRL.A.No.1071 OF 2019 & con. Cases 28 consent or will. Though the act alleged was termed by the prosecution with nomenclature 'theft' and the offence under Section 380 IPC is incorporated in the FIR, there is absolutely nothing in the primary documents relied on by this Court to hold the preliminary enquiry that movables belonging to the deceased was removed from the quarters possessed by him by the culprits with a view to take those on their own. The materials relied on would prima facie indicate that the offence under Section 3(1)(g) of the Act is attracted, since it is liable to be drawn therefrom prima facie that Kumar being a member of Scheduled Tribe was dispossessed with his quarters and his enjoyment of the same was interfered with. On a close scrutiny of the provision in the Act describing the offence under Section 3(1)(g), it is pertinent to note that the word 'wrongfully' was not used by the legislature to understand its meaning as the same in usage in common parlance. The legislature in it's wisdom has given a specific meaning to the word 'wrongfully' as made it clear under explanation incorporated thereto. It is extracted hereunder for easy reference :
CRL.A.No.1071 OF 2019 & con. Cases 29 "Explanation.--For the purposes of clause (f) and this clause, the expression ―wrongfull includes--
(A) against the person's will;
(B) without the person's consent;
(C) with the person's consent, where such consent has been obtained by putting the person, or any other person in whom the person is interested in fear of death or of hurt; or (D) fabricating records of such land;"
22. In view of the meaning assigned to the word 'wrongfully' as above by the legislature, the argument advanced by the learned counsel do not hold good. Therefore, this Court is constrained to hold that the allegations are adequate to draw a conclusion prima facie that the offence under Section 3(1)(g) was attracted against the appellants.
23. Forceful eviction of a member of SC/ST is made punishable under Section 3(1)(z) of the SC/ST (POA) Act. But if the forceful act was done by the alleged culprit while discharging public duty, he will be exempted from punishment. The argument of the learned counsel was that though it appears from the allegations in the primary materials that the offence may be attracted, the culprits being public servants, having done the acts in obedience to orders issued by their superior official (Accused CRL.A.No.1071 OF 2019 & con. Cases 30 No.1) the offence will not be attracted against them. It is true that the recitals in the primary documents relied on indicate that the alleged culprits act to remove the belongings of the deceased from the quarters to another as directed by their superior. Every action done in obedience to the direction of a superior official cannot be in discharge of a public duty. Public duty has a different connotation than that was canvassed by the learned counsel . Therefore, there is no basis to draw a conclusion prima facie based on the materials relied on that the alleged culprits of those offences had done the alleged acts in discharge of public duty. Therefore, the act alleged is not liable to be exempted from the purview of the offence dealt with under Section 3(1)(z) of SC/ST (POA) Act.
24. Lastly and finally the venture is to see whether from the materials, the offence under Section 3(2)(vii) is prima facie attracted or not. As provided under Section 3(2)(vii) of the Act for an offence as envisaged thereunder to be attracted, prima face allegation required to be drawn from the primary materials collected by the investigating officer was that, those are CRL.A.No.1071 OF 2019 & con. Cases 31 adequate to draw a conclusion of commission of any of the offence under Section 3 of the SC/ST (POA) Act by the alleged culprits. In view of the discussion hereinabove made, this Court has no hesitation to draw a conclusion that the bar under Section 18 as well as 18A against exercise of jurisdiction under Section 438 Cr.P.C is applicable in the case of the appellants.
25. The learned Public Prosecutor has conceded the submission made by the learned counsel for the appellants on the community status of accused Nos.4 and 6 that they also belong either to SC or ST. They being the member of SC/ST the offence under the SC/ST(POA) Act will not attract against them. In that context, the conclusion liable to be drawn prima facie was that the offence alleged under the provisions of the Act will not be attracted against them. But, an offence under the IPC is attracted against them and being a serious one, application seeking pre-arrest bail was rightly rejected by the Special Court by the impugned order and interference is totally unwarranted.
26. As revealed from the materials, Kumar was allotted with a new quarters on his application only just two months' prior to CRL.A.No.1071 OF 2019 & con. Cases 32 his death. He had shifted his valuables to that quarters. He did not reside there. It is evidenced from the materials that the same quarter was re-allotted to accused No.5 without an order being passed cancelling the order of allotment and the reasons for doing so being communicated to Kumar. The learned counsel would argue that in view of the desertion of Kumar from A.R. Camp, the Deputy Commandant did not communicate. But, not even an attempt was made to communicate him by post in his known address. They did not even wait for him to turn up and to remove his belongings. The order of cancellation of allotment must be prepared officially and entry must be made in the register of allotment of quarters. It is mandatory that the reason for cancellation must be communicated to him after granting him an opportunity of being heard. Principles of natural justice require that. The contention of learned Public Prosecutor was that an entry of cancellation was made by endorsement in the order of allotment of quarters in the register itself by accused No.4 and 5 collusively and therefore, the offences under Sections 465 and 471 IPC were also alleged against them. Materials CRL.A.No.1071 OF 2019 & con. Cases 33 available are prima facie suggestive of complicity of accused in those offences also.
27. As reported by the investigating officer, custodial interrogation of appellants on several aspects including criminal conspiracy, if any prior to the commission of the alleged acts in the alleged manner, is necessary. The fact that Quarter No.E-39 allotted to Kumar was taken from him without granting him with opportunity to be heard on the causes or reasons for doing so, applying for a quarter by A5 in the meantime and replacing the lock put by Kumar by the CPOs, removal of his belongings to Quarter No.E-57 in his absence and dumping of those there to his prejudice are all suspicious circumstances throwing light to alleged collusion among A1 and appellants, which pre-supposes some conspiracy as contended by the prosecution.
28. Custodial interrogation alone could bring materials to support or negative the suspicious circumstances now urged by the prosecution. In view of that, this Court did not find any reason to exercise the jurisdiction under Section 438 Cr.P.C to grant the relief to the appellants. The bar under Section 18 and CRL.A.No.1071 OF 2019 & con. Cases 34 18A is strictly applicable in the case on hand.
The observations made on the merits of the case are meant for disposal of these appeals and the trial court shall deal with the case untrammelled by any of the observations made by this Court in this judgment.
In the result, Criminal Appeals are dismissed.
Sd/-
MARY JOSEPH JUDGE ttb