Ismayil vs State Of Kerala on 15 October, 2020

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Kerala High Court

Ismayil vs State Of Kerala on 15 October, 2020

Bench: B.Sudheendra Kumar

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

          THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR

 THURSDAY, THE 15TH DAY OF OCTOBER 2020 / 23RD ASWINA, 1942

                      CRL.A.No.636 OF 2020

CRMP 1448/2020 OF DISTRICT COURT & SESSIONS COURT,THRISSUR

CRIME NO.367/2019 OF Peramangalam Police Station , Thrissur


APPELLANT/S:

      1      ISMAYIL, AGED 38 YEARS,S/O. SULAIMAN, AMBALATHU
             VEETTIL HOUSE, KAIPARAMBU, PERAMANGALAM,
             THRISSUR.
      2      NAVAS, AGED 27 YEARS
             S/O. HUSSSAIN, AMBALATHUVEETTIL HOUSE,
             KAIPARAMBU, PERAMANGALAM, THRISSUR.
      3      NIKHU,AGED 23 YEARS,S/O. HUSSAIN, AMBALATHUVEETTL
             HOUSE, KAIPARAMBU, PERAMANGALAM, THRISSUR.
              BY ADVS.
              SRI.S.RAJEEV
              SRI.K.K.DHEERENDRAKRISHNAN
              SRI.V.VINAY
              SRI.K.ANAND (A-1921)

RESPONDENT/S:

      1        STATE OF KERALA,
               REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
               KERALA, ERNAKULAM-682031.
               (CRIME NO.367/2019 OF PERAMANGALAM POLICE
               STATION, THRISSUR DISTRICT)

      2        SUMESH,AGED 35 YEARS, S/O. SREENIVASAN,
               IRIPPASSERY HOUSE, KAIPARAMBU, PERAMANGALAM,
               THRISSUR DISTRICT-680545.

               R2 BY ADV. SRI.T.M.CHANDRAN

OTHER PRESENT:

           SMT. M.K.PUSHPALATHA, SR.PP
     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
15.10.2020, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 Case No. Crl.A.636/2020


                              -2-




                          JUDGMENT

The appellants are the accused in Crime No.367 of 2019 of Peramangalam Police Station. The offences alleged are punishable under Sections 341, 323, 324 and 326 read with Section 34 IPC and Sections 3(1)(s) and 3(2) (va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (for short 'the Act').

2. The prosecution allegation is that on 22.4.2019 at about 10.45 p.m., the appellants assaulted the informant and his brother. They also abused the informant and his brother by calling their caste name in public view. The informant and his brother belong to SC/ST community, whereas the appellants do not belong to the said community.

Case No. Crl.A.636/2020 -3-

3. The appellants filed application before the court below praying for the relief under Section 438 Cr.P.C.

However, the said application was dismissed by the court below as per order dated 11.8.2020 in Crl.M.P. No.1448 of 2020. Aggrieved by the said order, this appeal has been filed.

4. Heard the learned counsel for the appellants, the learned Public Prosecutor and also the learned counsel for the informant, who is the 2nd respondent herein.

5. It appears that the allegations against the appellants would primafacie constitute the offence under the Act. Therefore, the court below was justified in dismissing Crl.M.P.No.1448 of 2020 filed by the appellants seeking for the relief under Section 438 Cr.P.C., in view of the Bar under Sections 18 and 18A(2) of the Act. In the said circumstances, I find no reason to interfere with the order impugned. However, it is settled law that the fact that Case No. Crl.A.636/2020 -4- the person who is accused of an offence under the Act is not entitled to get anticipatory bail does not mean that he is not entitled to get regular bail. In cases where the custodial interrogation of an accused is not necessary and there may not be any risk of the accused fleeing from justice, the court will be justified in granting regular bail to the accused, as the bar is only in respect of granting the relief under Section 438 Cr.P.C., as held by this Court in Juli C.J. v. State of Kerala and Another [2020 (4) KHC 45]. In view of the above, the appellants shall be at liberty to surrender before the special court concerned and apply for regular bail. It has been submitted by the learned counsel for the appellants that the appellants are prepared to surrender before the special court on 22.10.2020 at 11 a.m. The learned counsel for the 2nd respondent has submitted that the 2nd respondent will also be represented before the court concerned through the lawyer on that date. In view of the above, it is directed that if the appellants surrender before the special court on 22.10.2020 and apply for regular bail, after giving copy of the bail application in advance to the learned Case No. Crl.A.636/2020 -5- Special Public Prosecutor concerned, to enable the learned Public Prosecutor, to inform the victim about the bail application, as provided under Section 15A(3) of the Act, the court concerned shall consider and dispose of the application for regular bail, in accordance with law, as expeditiously as possible, preferably on the date of filing of the application itself.

This Criminal Appeal stands dismissed.

sd B. SUDHEENDRA KUMAR, JUDGE.

dl/

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