Ajayakumar vs State Of Kerala

A. Badharudeen, J

This is an appeal filed under Section 14A(2) of the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as `SC/ST Act' for convenience) and the appellant is the 1st accused in Crime No.745/2023 of Sasthamcotta Police Station, Kollam.

The appellant impugns order in CRMP.No.147/2023 dated 01.07.2023, whereby the learned Special Judge under the SC/ST, Kottarakkara refused anticipatory bail to the appellant.

Heard the learned counsel for the appellant and the learned counsel appearing for the defacto complainant to submit the version of the defacto complainant under Section 15A(5) of the SC/ST Act. Heard the learned Public Prosecutor and perused the case diary and the order impugned.

The prosecution case is that at about 10 p.m on 2.5.2023, when Gireesh, who is a member of the Scheduled Caste community, reached the shop of one Ani, and demanded pan Ani said that the same is not available. Later Ani given the same to another person and the same was questioned by Gireesh. Soon accused 1 to 3, who do not belong to the Scheduled Caste or Scheduled Tribe community, reached the place of occurrence and accused No.1, who is the appellant herein beat on the head of the above said Gireesh by using a brick. The above said Gireesh sustained very serious injuries including frontal fracture and he had undergone treatment. It is at this juncture, police registered Crime alleging commission of the offences punishable under Sections 324, 326, 308 and 34 of the Indian Penal Code as well as under Sections 3(1)(c) and 3(2)(c) of the ST/St Act.

The learned counsel for the appellant submitted that the incident is the outcome of a sudden provocation and the allegations are false. It is submitted further that the appellant was incorporated in this crime without any justification and the appellant is a first time offender. Accordingly, offering co-operation in the matter of investigation, the learned counsel for the appellant prays for anticipatory bail.

The learned Public Prosecutor strongly opposed bail on the submission that the allegations are serious and in this occurrence, the above said Gireesh sustained serious injuries including frontal bone fracture. Therefore, arrest, custodial interrogation and recovery of the brick at the instance of the 1st accused, who alleged to have used the brick to beat the above said Gireesh, are essential to accomplish the investigation. It is also pointed out that since the offences under the SC/ST Act also were alleged to be committed, there is specific bar under Section 18 and 18A of SC/ST Act in granting anticipatory bail. Therefore, the appellant cannot be released on anticipatory bail.

The learned counsel for the defacto complainant also strongly opposed the bail and submitted that in this occurrence Gireesh sustained very serious injuries including fracture of frontal bone and he has been on treatment. Therefore, the appellant is not entitled to get anticipatory bail. She also pointed out the bar in the matter of grant of anticipatory bail in this case involving offences under the SC/ST Act.

To be on the crux of the matter, the specific allegation against the appellant/1st accused is that he hit on the head of the defacto complainant by using a brick. On perusing the copy of the wound certificate of Gireesh , the following injuries were noted:

"(1) Lacerated wound over the forehead near the left eye, 7 X 3 X 5 cm (deep) and

(2) suspected fracture."

Gireesh was referred to C.T scan examination of head at Parietal region and on C.T scan examination, comminuted displaced fracture of frontal bone was diagonised.

Reading the complicity of the appellant/1st accused in segregation from the other accused, the learned Special Judge granted anticipatory bail to accused 2 and 4 while refusing the same to the appellant.

The facts of the case discussed above herein would show that very serious offences were alleged to be committed by the appellant and therefore his arrest, custodial interrogation and recovery of weapon at his instance are absolutely necessary to accomplish meaningful investigation and successful prosecution.

Law regarding grant of anticipatory bail in cases under Section 18-A of the SC/ST Act is settled as per the decision of a 3 Bench of the Apex Court reported in [2020 (2) KHC 423 : AIR 2020 SC 1036 : (2020) 4 SCC 727 : MANU/SC/0157/2020], Prathvi Raj Chauhan v. Union of India(UOI) & Ors., that as far as the provision of Section 18-A and anticipatory bail is concerned, the judgment of Mishra, J. has stated that in cases where no prima facie materials exist warranting arrest in a complaint, the court has the inherent power to direct a pre-arrest bail. Thus the law is settled by the Apex Court after incorporation of Section 18-A also that there is no absolute bar in entertaining an application for anticipatory bail in cases alleging commission of offences under the SC/ST Act if the prosecution allegations do not constitute any offence under the SC/ST Act prima facie and the court has the power to grant anticipatory bail if the prosecution allegations do not make a prima facie case.

Since the materials available prima facie establish the commission of offences alleged against the appellant, he cannot be released on anticipatory bail as the same would impede the investigation as pointed out in paragraph 11, herein above.

In view of the above discussion, the appeal stands dismissed by confirming the order of the Special Judge. The appellant is directed to surrender before the Investigating Officer forthwith, failing which the Investigating Officer shall record his arrest and proceed with the investigation without fail.

Registry shall forward a copy of this judgment to the Special Court for information and compliance.