Kerala High Court
Mohammed Raphy K.M vs State Of Kerala on 19 November, 2019
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
TUESDAY, THE 19TH DAY OF NOVEMBER 2019 / 28TH KARTHIKA, 1941
CRL.A.No.1090 OF 2019
AGAINST THE ORDER/JUDGMENT IN CRMC 1698/2019 DATED 05-09-2019 OF
SESSIONS COURT, THRISSUR
CRIME NO.113/2019 OF ATHIRAPPILLY POLICE STATION, THRISSUR
APPELLANT/S:
MOHAMMED RAPHY K.M.
AGED 31 YEARS, S/O. MOHAMMED KHASIM,
KARUPPUM VEETTIL HOUSE,
ARAMKALLU, PATTIKAD POST, THRISSUR.
BY ADVS.
SRI.S.RAJEEV
SRI.K.K.DHEERENDRAKRISHNAN
SRI.V.VINAY
SRI.D.FEROZE
SRI.K.ANAND (A-1921)
RESPONDENTS/STATE:
1 STATE OF KERALA
REP. BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, - 682 031,
(CRIME NO. 113/2019 OF ATHIRAPPILLY
POLICE STATION, THRISSUR DISTRICT)
2 ADDL.R2
RAMYA.,
AGED 31 YEARS, W/O. BINU,
KADAR COLONY, VAZHACHAL, ATHIRAPPILLY VILLAGE,
THRISSUR RURAL 680 732.
ADDL. R2 IMPLEADED AS PER ORDER DATED 30.10.19 IN
CRL. M.A 1/19 IN CRL.A. 1090/19.
R2 BY ADV. SMT.I.SHEELA DEVI
R2 BY ADV. SRI.BINESH.K.N.
SRI.AMJAD ALI, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
19.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A.No.1090 OF 2019
2
ALEXANDER THOMAS, J.
===========================
Crl.Appeal No.1090 of 2019
===========================
Dated this the 19th day of November, 2019
JUDGMENT
The appellant herein has been arrayed as the sole accused in the instant Annexure-I Crime No.113/2019 of Athirappilly Police Station, Thrissur, registered for offences punishable under Secs.451, 341, 323 and 354 of the Indian Penal Code and Sec.3(2)(va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, as amended. The abovesaid crime has been registered on the basis of the First Information Statement given by the lady de facto complainant on 26.08.2019 at about 6.50 p.m., in respect of the alleged incidents which happened on the same day (26.08.2019) at about 10.40 a.m. in the morning.
2. The prosecution case in short is that the appellant/accused is working as a Forest Range Officer under the Forest Department of the CRL.A.No.1090 OF 2019 3 Government of Kerala and that the lady de facto complainant belongs to Scheduled Tribe community and that her husband has been engaged as a Watcher in the Forest Department and that he had made a posting in the facebook making some remarks about the photograph published by the appellant in the facebook and that the appellant was thus enraged at her husband and out of that animosity, the appellant had come to her residence on 26.08.2019 at about 10.40 a.m. in the morning and had slapped the lady de facto complainant's husband, which was then objected to by the lady de facto complainant and thereupon, the petitioner had pushed her down and had pulled her nightie and that thereby the appellant has committed the abovesaid offences. At the outset, it is submitted by the appellant's counsel that it is indisputable that the lady de facto complainant's husband does not belong to Scheduled Tribe and that there are no allegations anywhere in the FIS that the appellant/accused as a matter of fact knew or was aware that the lady de facto complainant belongs to Scheduled Caste community and that therefore, the invocation of the offences as per the SC/ST (Prevention of Atrocities) Act, 1989 is uncalled for in the facts of this case. Further it is pointed out that the abovesaid allegations in crime CRL.A.No.1090 OF 2019 4 are absolutely false and fabricated and that as a matter of fact, the truth of the matter is other way out. That the lady de facto complainant's husband was earlier engaged as a Watcher on temporary basis in the Forest Department and various complaints were received by the Forest Department against him, as can be seen from the various proceedings referred to in Annexure-III letter dated 28.05.2019 written by the appellant to the Forest Range Officer, wherein the appellant had ordered to terminate/disengage the service of the lady de facto complainant's husband's service as a Watcher. That it is only on account of the said animosity of the lady and her husband towards the appellant for having terminating her husband's service, the instant false allegations are made. Further that on 26.08.2019, the appellant and the other forest officials concerned had received a confidential information that the lady's husband has kept wild animal's meat in their house for illegal sale in contravention of the provisions contained in the Wild Life Protection Act, 1972 and the appellant after taking necessary permission from the Divisional Forest Officer concerned, along with another Forest Officer was asked to conduct raid in the house of the lady de facto complainant's house to detect the said wild animals meat and in course CRL.A.No.1090 OF 2019 5 of that, the appellant and the other forest officials concerned had reached the lady's house on 26.08.2019 at about 10.40 a.m. and that the lady's husband thereupon assaulted the appellant and obstructed him from performing his official duties as a Forest Range Officer and prevented the conduct of the raid and thereupon, immediate steps have been taken to register Annexure-II Crime No.114/2019 of Athirappilly Police Station, for offences punishable under Secs.506, 353 & 34 of the Indian Penal Code, in which the lady de facto complainant's husband and the said lady has been arrayed as the two accused therein, etc. This Court had directed the Divisional Forest Officer, Vazhachal to file a report or statement before this Court to furnish instructions, as to whether the appellant had got prior permission from the competent superior officer concerned of the Forest Department to conduct the said raid referred to Annexure-II crime, etc. and also about the veracity of the allegations raised against the lady's husband in Annexure-III proceedings dated 28.05.2019. The Divisional Forest Officer, Vazhachal has now filed a detailed statement in this case before the learned Public Prosecutor and wherein it is stated that the lady de facto complainant's husband is not a member of the SC/ST community and CRL.A.No.1090 OF 2019 6 further that various complaints were received about the misconducts committed by the lady's husband in his functioning as Watcher under the Forest Department. Annexure-R1(e) is the screen shot what's app messages sent by the Tribal Head to the Divisional Forest Officer, Vazhachal stating about the various misdemeanour committed by the lady's husband while functioning as Forest Watcher, including allegations that he frequently used to sleep in the forest dormitory without wearing any clothes, etc. Further that, the contents of Annexure-III proceedings dated 28.05.2019 and the contents of Annexure-R1(f) as well the various proceedings referred to therein have also been stated as correct. Further that on 26.08.2019, the appellant had sought for permission of the Divisional Forest Officer, Vazhachal to conduct the raid and due to paucity of time, the Divisional Forest Officer, Vazhachal had given oral permission to the appellant to conduct the said raid, as the scene of occurrence was about 40 kms away from the office of the Divisional Forest Officer. Annexure-R1(a) produced along with the said statement filed by the Divisional Forest Officer is the general diary entries maintained at the Kannankuzhi Forest Station, which would corroborate and establish the abovesaid facts, etc. CRL.A.No.1090 OF 2019 7
3. The learned Public Prosecutor has pointed out that the investigation in respect of Annexure-II crime has been completed and as it was found that as the appellant has conducted the raid without wearing uniform and without proper search warrant issued by the Divisional Forest Officer and the said case has been referred.
4. The learned counsel for the petitioner would point out that so far, no notice has been issued to the appellant regarding the factum of the submission of the refer report in respect of Annexure-II crime and that the appellant with the permission of the forest authorities concerned proposes to file protest complaint thereto, if it is permissible in law, etc.
5. The learned Public Prosecutor and Smt.I.Sheela Devi, learned Advocate appearing for the lady de facto complainant has opposed the plea for anticipatory bail.
6. After hearing both sides and after careful evaluation of the facts and circumstances of this case, it is found that now it is beyond any factual controversy as is evident from the averments in the statement/report filed by the Divisional Forest Officer, Vazhachal, who is the head of the forest division concerned that on 26.08.2019, the CRL.A.No.1090 OF 2019 8 appellant was given oral permission by the said Divisional Forest Officer, who is his official superior to conduct the said raid and permission in writing could not be given, as the Divisional Forest Officer's office was situated more than 40 kms. away from the scene of occurrence, etc. and therefore, in the light of said materials of unimpeachable quality, it is only to be held that at least for the purpose of the present anticipatory bail plea consideration that the appellant was indeed present at the residence of the lady de facto complainant and her husband in the course of his official duties, after getting necessary permission from the Divisional Forest Officer. Further it is seen that the service of the lady de facto complainant's husband was already terminated by the appellant, as evident from Annexure-III/ Annexure-R1(f) proceedings. Further, there are no allegations in the FIS that the appellant knew or was aware that the lady de facto complainant belongs to SC/ST community. As a matter of fact, it is beyond the bail of the factual controversy, the lady de facto complainant's husband, about whom the appellant had personal knowledge, do not belong to SC/ST community.
7. In the light of these aspects, this Court is constrained to take CRL.A.No.1090 OF 2019 9 the view that no prima facie case of any substance disclosing offences as per the SC/ST (Prevention of Atrocities) Act, 1989 as amended is disclosed in the instant case. Hence, the statutory bar under Secs.18 & 18A of the abovesaid Act will not apply and this Court is thus empowered under Sec.438 of the Cr.P.C to consider the abovesaid anticipatory bail plea of the appellant on merits. In the light of the abovesaid aspects, this Court is inclined to take the view that the custodial interrogation of the appellant may not really be necessary or warranted for effectuating the fair and proper conduct of the investigation of this crime.
8. In that view of the matter, it is ordered that in the event of the appellant being arrested in relation to the instant Annexure-I Crime No.113/2019 of Athirappilly Police Station, he shall be released on bail on his executing bond for Rs.40,000/- (Rupees Forty Thousand only) and on his furnishing two solvent sureties for the like sum each, both to the satisfaction of the Investigating Officer concerned. However, the grant of bail will be subject to the following conditions:
(a) The appellant shall report before the Investigating Officer concerned at any time between 10.a.m. and 1.00 p.m. on every 2nd and 4th Saturdays for the next three months. Thereafter, the appellant shall report before the Investigating Officer as and CRL.A.No.1090 OF 2019 10 when directed by him.
(b) The appellant shall not involve in any criminal offences of similar nature.
(c) The appellant shall fully co-operate with the investigation.
(d) The appellant shall report before the Investigating Officer as and when required in that connection.
(e) The appellant shall not influence witnesses or shall not tamper or attempt to tamper evidence in any manner, whatsoever.
9. In case, the appellant violates any of the above bail conditions, then the Investigating Officer concerned will stand hereby authorised, to consider the plea for cancellation of bail, if required, in accordance with law.
With these observations and directions, the above Crl.Appeal will stand disposed of.
Sd/-
ALEXANDER THOMAS JUDGE vgd CRL.A.No.1090 OF 2019 11 APPENDIX PETITIONER'S/S EXHIBITS:
ANNEXURE I TRUE COPY OF THE FIRST INFORMATION REPORT AND FIRST INFORMATION STATEMENT IN CRIME NO.113/2019 OF ATHIRAPPILLY POLICE STATION.
ANNEXURE II TRUE COPY OF THE FIRST INFORMATION REPORT
AND FIRST INFORMATION STATEMENT IN CRIME
NO.114/2019 OF ATHIRAPPILLY POLICE
STATION.
ANNEXURE III COPY OF THE PROCEEDINGS OF THE
PETITIONER.
RESPONDENTS' EXHIBITS
ANNEXURE R1(A) TRUE COPY OF GENERAL DIARY OF KANNANKUZHI
FOREST STATION
ANNEXURE R1(B) TRUE COPY OF THE MINUTES OF THE MEETING
OF EXECUTIVE COMMITTEE OF VAZHACHAL VSS
HELD ON 30.12.2018
ANNEXURE R1(C) TRUE COPY OF THE COMPLAINT
ANNEXURE R1(D) TRUE COPY OF THE REPORT DATED 27.05.2019
ANNEXURE R1(E) TRUE COPY OF THE SCREEN SHOT OF THE
WHATSAPP MESSAGE FORWARDED BY THE
DIVISIONAL FOREST OFFICER TO RANGE FOREST
OFFICER, CHARPA
CRL.A.No.1090 OF 2019
12
ANNEXURE R1(F) TRUE COPY OF THE DIRECTIONS OF THE RANGE
FOREST OFFICER, CHARPA