Jayakumar S vs State Of Kerala

K.Babu., J

This is an appeal filed under Section 14-A of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.

The appellants are accused Nos. 1 to 9 in Crime No.381/2024 of Kumaly Police Station. They are alleged to have committed offences punishable under Sections 141, 143, 144, 147, 148, 341, 354, 354B, 294(b), 324, 323 r/w Section 149 of the IPC and Sections 3(1)(s), 3(1)(w)(i) and 3(2)(va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.

The prosecution case :-

The appellant Nos.1, 4 to 9 are not members of Scheduled Caste or Scheduled Tribe. The victim is a member of Scheduled Caste. On 28.04.2024 at 8 p.m., the appellants formed themselves into an unlawful assembly wrongfully restrained the victim and abused her. The appellants also voluntarily caused hurt to the victim. They used force to the victim with intent to outrage her modesty. The appellants abused the victim by calling her caste name.

I have heard the learned counsel for the appellants, the learned counsel appearing for the victim and the learned Public Prosecutor.

The learned counsel for the appellants submitted that the victim filed the complaint before the police as a counter blast to the incident in which the victim and her men assaulted appellant No.9 and abused her by calling her caste name. In the said crime, the victim therein (appellant No.9) had alleged that the assailants attempted to outrage her modesty. The learned counsel for the appellants relied on Annexure A1 FIR in support of his contentions.

The learned counsel for the victim opposed the bail plea of the appellants on the ground that the offences alleged are grave. It is also submitted that the bail plea of the appellants is barred under Section 18 of the Act.

The learned Public Prosecutor opposed the bail plea of the appellants on the ground that it is hit by Section 18 of the Act.

The Case Diary is made available. I have gone through the FIS and the documents relied on by the learned counsel for the appellants.

There is no absolute bar against grant of anticipatory bail in cases alleging offences under the SC/ST (POA) Act, if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide. While considering the question of prima facie case, the material showing that the parties live in inimical terms is a circumstance to doubt a prima facie case (vide: Prathvi Raj Chauhan v. Union of India [(2020) 4 SCC 727], Subhash Kashinath Mahajan (Dr.) v. State of Maharashtra and Another 2018 (2) KHC 207 and xxxx v. State of Kerala 2022 KHC 1001).

The materials placed before the Court reveal that the parties are living in inimical terms. Annexure 1 FIR points to the fact that the incident relates to a scuffle between two rival political groups. I am of the considered view that the possibility of false implication cannot be ruled out.

On an evaluation of the genesis of the prosecution case, I hold that there are sufficient reasons to doubt a prima facie case to attract the offences under the SC/ST (PoA) Act. Therefore, the bar under Section 18 of the Act is not applicable to the facts of the case. The prosecution has no case that the custodial interrogation of the appellants is required. The accused in the connected case were granted bail by the Sessions Court.

While considering the scope of jurisdiction under Section 438 Cr.P.C., the Constitution Bench of the Apex Court in Gurbaksh Singh Sibbia & Ors. v. State of Punjab [(1980) 2 SCC 565] held thus:

“31. In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made. On the other hand, if it appears likely, considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice, such an order would not be made. But the converse of these propositions is not necessarily true. That is to say, it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides; and, equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond. There are several other considerations, too numerous to enumerate, the combined effect of which must weigh with the court while granting or rejecting anticipatory bail. The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant's presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and “the larger interests of the public or the State” are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail. The relevance of these considerations was pointed out in State v. Captain Jagjit Singh [AIR 1962 SC 253 : (1962) 3 SCR 622 : (1962) 1 Cri LJ 216] , which, though, was a case under the old Section 498 which corresponds to the present Section 439 of the Code. It is of paramount consideration to remember that the freedom of the individual is as necessary for the survival of the society as it is for the egoistic purposes of the individual. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints on his freedom, by the acceptance of conditions which the court may think fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail.”

In Siddharam Satlingappa Mhetre v. State of Maharashtra [(2011) 1 SCC 694] the Apex Court held thus:-

“113. Arrest should be the last option and it should be restricted to those exceptional cases where arresting the B.A.Nos.5010 of 2021 & Connected cases 40 accused is imperative in the facts and circumstances of that case. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record.”

(In Sushila Aggarwal v. State (NCT of Delhi) [(2020) 5 SCC 1]) the declaration of law in Siddharam Satlingappa Mhetre that no condition can be imposed while granting order of anticipatory bail alone was overruled).

In Sushila Aggarwal, the Constitution Bench of the Apex Court, following the decision in Gurbaksh Singh Sibbia, held that while considering an application (for grant of anticipatory bail) the Court has to consider the nature of the offence, the role of the person, the likelihood of his

Having considered the entire circumstances on the touchstone of the precedents mentioned above, I am of the view that the appellants are entitled to anticipatory bail on conditions.

In the result,

(i) The Criminal Appeal is allowed.

(ii) The order dated 08.07.2024 dismissing Crl.M.C No.561 of 2024 stands set aside.

(iii) The appellants shall appear before the Investigating Officer on 08.10.2024 between 10.00 AM and 11.00 AM for interrogation.

(iv) The Investigating Officer is directed to release the appellants on bail, in the event of their arrest, on their executing bond for Rs.1,00,000/- (Rupees One Lakh only) each with two solvent sureties each for the like sum.

(v) The appellants shall appear before the Investigating Officer on all Mondays between 10.00 AM and 11.00 AM for a period of three months or till the final report is filed, whichever is earlier.

(vi) The appellants shall not influence the witnesses in this case or tamper with the evidence.