Madhavankutty vs State Of Kerala

A. Badharudeen, J

This appeal has been filed under Section 14A(2) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short ‘The SC/ST Act’ hereinafter). The appellants are accused Nos.1 and 2 in Crime No.1124/2022 of Mala Police Station, where accused alleged to have committed offences punishable under Section 3(1)(s) of the SC/ST Act.

Heard the learned counsel for the appellants. The learned Public Prosecutor also was heard.

Although notice was served upon the de facto complainant, he did not turn up.

Prosecution allegation is that, during the month of September, 2022 and on 24.9.2022, the appellants, who do not belong to Scheduled Caste or Scheduled Tribe community, called the caste name of the de facto complainant, who belongs to Hindu Pulaya community, a Scheduled Caste, when he insisted production of receipt for doing pooja in Kulangara Sree Maha Vishnu Temple, where the de facto complainant has been working as ‘poojari’. The specific allegation is that the appellants herein called his caste name and abused him, in the presence of other persons present and thereby, he was humiliated within public view.

The learned Special Judge considered the anticipatory bail plea of the appellants and the same was dismissed, holding that prima facie case as to commission of offence under Section 3(1)(s) of the SC/ST Act could be found from the prosecution records and therefore, the bar under Section 18 of the SC/ST Act would attract.

The learned counsel for the appellants would submit that the appellants are the members of the advisory committee of the temple and there were allegations regarding the behaviour of the de facto complainant and for which, they have filed complaint before the Devaswom Commissioner and it is, at this juncture, as a retaliatory measure, the de facto complainant lodged false complaint and now, the appellants who are aged 70 and 74 years respectively, are facing threat of arrest. Therefore, this Court needs to interfere in this matter.

The learned Public Prosecutor highlighted the recitals in the case diary, particularly, with reference to the First Information Statement given by the de facto complainant, to assert that there are materials prima facie to show the commission of offence under Section 3(1)(s) of the SC/ST Act and therefore, the bar under Section 18 and 18A would apply.

In the decision 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., a 3 Bench of the Apex Court considered the impact of Section 18-A and it was held 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 and the court has the power to grant anticipatory bail if the prosecution allegations do not make a prima facie case.

In this matter, on perusal of the First Information Statement, this Court cannot say that there is no prima facie case alleging commission of offence under Section 3(1)(s) of the SC/ST Act. Therefore, grant of anticipatory bail is specifically barred under Section 18 and 18A. Therefore, the impugned order cannot be interfered.

However, having noticed the status of the appellants as trustees of the Managing Committee of the temple where the de facto complainant is a poojari, the Special Court can consider regular bail application, if any, filed by the appellants on the date of their production before the court after their surrender before the police. Therefore, the appellants are directed to surrender before the investigating officer at 9.00 a.m., within a period of 7 days from today. On their surrender, the investigating officer can interrogate the appellants and they shall be produced before the Special Court on the date of surrender itself. If bail application, if any, will be filed, after serving copy to the de facto complainant through the Station House Officer, so as to secure his presence on the date of surrender, the learned Special Judge is directed to consider the regular bail application, on merits, preferably on the day itself, or without much delay, taking note of the facts and circumstances, which led to registration of this crime and also taking note of the fact that there is no bar in granting regular bail in an appropriate case. The appellants’ arrest in this crime shall stand deferred for a period of 7 days from today.

Directing so, the appeal stands disposed of.