Byju Sebastian vs State Of Kerala

Ziyad Rahman A.A, J

This is an application submitted for anticipatory bail under Sec.438 of the Cr.P.C.

The petitioners are the accused Nos. 1 to 6 in Crime No.1311/2021 of Ranny Police Station, which is registered for the offences punishable under Secs.294(b), 506 & 34 of the IPC read with Secs.3(1)(r) & 3(1)(s) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

The prosecution case is that on 21.10.2021 at 11 A.M., the petitioners herein have abused the defacto complainant by calling her caste name and also using abusive words. The crime was registered in the said circumstances.

Heard both sides. Even though, the notice of the bail application has been served on the 3rd respondent/defacto complainant, there is no appearance for her.

The learned counsel for the petitioners contends that the aforesaid complaint was submitted by the defacto complainant by raising false allegations at the instance of one V.T.Varghese, who is in inimical terms with the petitioners herein.

The specific case of the petitioners is that the said V.T.Varghese had donated 26 cents of property lying in the neighbourhood of the petitioners' property to 8 different persons. While conveying the aforesaid properties to the said persons, the said V.T.Varghese had created an impression among them that a private road which is leading to the properties of the 1st petitioner, in which he has exclusive right of way, can be used by the said assignees. On the basis of the same, the assignees of the properties of the said V.T.Varghese, started claiming right over the aforesaid pathway, and the present crime is the result of the said claim.

It is also pointed out that in connection with the dispute between the 1st petitioner and the said V.T.Varghese, O.S.No.166/2021 filed by the 1st petitioner, is pending before the Munsiff Court, Ranni, in which he has obtained an order of injunction in his favour.

Another crucial aspect pointed out by the learned counsel for the petitioners is that, in connection with the very same dispute, 4 other crimes were also registered at the instance of different defacto complainants. The aforesaid crimes are numbered as 1310/2021, 1313/2021, 1308/2021 & 1285/2021. It is pointed out that in all the above cases, similar allegations are seen raised against the petitioners. In such circumstances, it was contended that all the cases are registered against the petitioners for the purpose of compelling the 1st peitioner to give the right of way to the aforesaid persons and all the allegations are with malafide intentions.

On the other hand, the learned Public Prosecutor would oppose the aforesaid application. It was pointed out that since the offences alleged against the petitioners include the offences under the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, [for short “The SC/ST Act”] the application under Sec.438 Cr.P.C. for anticipatory bail, is not maintainable. In such circumstances, the learned Public Prosecutor seeks for dismissal of the application.

When the materials relating to the aforesaid case are examined, it can be seen that three other bail applications, namely B.A.No.325/2022, B.A.No.330/2022 & B.A.No.294/2022, which are arising from Crime Nos.1313/2021, 1308/2021 & 1285/2021 respectively, have also came up today for consideration. I have perused the allegations in all the aforesaid cases. From a scrutiny of the facts and circumstances which led to the registration of all the aforesaid cases, a clear pattern can be seen. Out of these four cases, three crimes were registered in respect of the incidents occurred on the same day, ie, 21.10.2021. However, the information regarding aforesaid incident in all these cases was given after one month. In B.A. No.294/2022, the incident is alleged to have occurred during the first week of October, 2021 and the FIR is seen registered on 19.11.2021. All the allegations in the aforesaid complaints contain a uniform pattern, and the motive alleged against the petitioners in commission of the aforesaid offences are relating to right of way and the obstructions caused by the petitioners. When all the aforesaid aspects are taken into consideration, particularly, the uniform pattern of the allegations, the delay in submitting the complaints and the dispute which the 1st petitioner has with the said V.T.Varghese, the assignor of the properties of the defacto complainants in the above cases, I find some force in the contentions put forward by the learned counsel for the petitioners.

The malafide nature of the allegations, for making out the allegations under the SC/ST Act cannot be ruled out in the peculiar facts and circumstances of the case. The other offences alleged against the petitioners are not very serious in nature.

In Prathvi Raj Chauhan v. Union of India & Ors. [2020 (1) KLT 810], the Hon'ble Supreme Court has laid down various guidelines as to the manner in which the powers of the Court under Sec.438 of the Cr.P.C. can be invoked in the matter relating to offences punishable under the SC/ST Act. As per the principles laid down therein, if the complaint, prima facie, does not disclose offence under the provisions of the SC/ST Act, the Court will have the power to invoke Sec.438 of the Cr.P.C. When the facts and circumstances of the case are carefully scrutinized, I am of the view that, this is a fit case which falls into the aforesaid category. Therefore, I am inclined to invoke the powers of this Court under Sec.438 of the Cr.P.C. and to grant anticipatory bail to the petitioners herein.

In this regard, it is also a relevant aspect to notice that as per order dated 6.4.2022 in B.A. No. 1704/2022, this Court has granted anticipatory bail to the petitioners herein in Crime No. 1310/2021 which arises from a similar incident. The findings entered by this Court in the aforesaid order, fortifies the view which I have taken in this case.

In the result, this bail application is disposed of, subject to the following conditions:

1) The petitioners shall surrender before the Investigating officer, within a period of two weeks from today, for subjecting themselves for interrogation.

2) After interrogation, the petitioners shall be released on bail, on the very same day of surrender upon the petitioners separately executing a bond for Rs.1,00,000/- (Rupees One Lakh only) each with two solvent sureties each for the like sum, to the satisfaction of the investigating officer.

3) The petitioners shall fully co-operate with the investigation, including subjecting themselves to the deemed police custody for the purpose of recovery, if any, as and when demanded.

4) The petitioners shall appear before the Investigating Officer between 10.00 a.m and 11.00 a.m on every Wednesday until the filing of final report.

5) The petitioners shall also appear before the investigating officer as and when required by him.

6) The petitioners shall not commit any offence of like nature while on bail.

7) The petitioners shall not make any attempt to contact any of the prosecution witnesses, directly or through any other person, or any other way try to tamper with the evidence or influence any witnesses or other persons related to the investigation.

8) The petitioners shall not leave the State of Kerala without the permission of the trial court.

In case of violation of any of the above conditions, the jurisdictional Magistrate/Court shall be empowered to consider the application for cancellation of bail, if any, and pass appropriate orders in accordance with the law.