Mr.K.D.Ouseph vs State Of Kerala

P.G. Ajithkumar, J.

The appellants are the accused in Crime No.1131 of 2020 of Kumily Police Station. Their application for anticipatory bail was dismissed by the Special Court for the trial of offences under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 2015 (SC/ ST Act), Thodupuzha. That order is under challenge in this appeal filed under Section 14A of the SC/ST Act.

Crime No.1131 of 2020 was registered based on a statement of the 3rd respondent. He belongs to a scheduled caste. His parents were the labourers in Moongalaar estate. They retired from service. They were in occupation of a quarters in the estate. The 3rd respondent claims that since that quarters was dilapidated, another one was allotted to them by the manager of the estate, where he along with members of his family and parents were residing. There was assurance that the 3rd respondent would be provided with employment in the estate. It is alleged that the appellants with the object of evicting the 3rd respondent and members of his family forcibly demolished the building and in that course the 3rd respondent, his wife, children and parents sustained injuries. The further allegation is that the 3rd respondent was abused and intimidated by calling his caste name.

Appellants filed Crl.M.C.No.866 of 2023 seeking anticipatory bail. The special court after considering the facts of the case in the light of the law laid down by this court in Basheer K.M and Others v Rajani K.T and Others [2022 (6) KHC 619], dismissed the petition. The appellants assail the said order.

Heard the learned Senior Counsel appearing for the appellants and the learned Public Prosecutor.

On  receipt  of  the  notice,  the  3rd  respondent appeared in person and submitted his objections.

The offences alleged against the appellants are punishable under Sections 451, 294(b), 323 r/w 34 of the IPC and Sections 3(i)(r),(s), (z) and Section 3(2)(va) of the SC / ST Act. The learned senior counsel for the appellants would submit that from the materials on record it is evident that the appellants who are the manager and members of staff in the estate took action for eviction of unauthorized occupation of the quarters building occupied by the 3rd respondent through lawful means and the 3rd respondent with the ulterior motive of compelling the appellants to employ him in the estate foisted the case. It is pointed out that the complaint which was lodged more than one month after the date of the alleged incident was investigated into and found to be false. A final report was submitted to that effect. Thereafter, a further investigation was taken out and therefore the appellants are apprehending arrest. It is submitted that other than a dispute, as mentioned above, no incident as alleged by the 3rd respondent had occurred and therefore, this is a case, where the bar under Section 18 of the SC / ST Act does not apply. Whereas the court below, on a wrong understanding of the facts dismissed the petition.

What the 3rd respondent submitted is that immediately after the incident, he had approached the police with his complaint, but in consideration of the assurance by the 1st appellant that he would be provided employment, he did not pursue his complaint. He also stated that he as well as his mother and children sustained injuries in the incident for which they underwent treatment. It is also stated that the appellants very clandestinely attempted to demolish the building and that too with the knowledge that he is a member of a scheduled caste.

The learned Public Prosecutor made available for the perusal the case diary and objected grant of bail to the appellants stating that in the further investigation, sufficient materials are collected to show the commission of the offence by the appellants.

In Subhash Kashinath Mahajan v. State of Maharashtra[(2018) 6 SCC 454], the Apex Court after considering the provisions of the SC/ST Act and various decisions including the one in N.T.Desai v. State of Gujarat [1997(2)GLR 942], issued a few guidelines for dealing with the applications for anticipatory bail, arrest of public servant and quashing of FIRs concerning offences under the SC/ST Act. In Union of India vs State of Maharashtra [2020(4) SCC 761], a three-judge Bench of the Apex Court reviewed the aforesaid decision and directions Nos. iii and iv in that decision were recalled. Consequently, direction No.v was held to fade away. Direction No.2 however remains which reads:

“ii) There is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide. We approve the view taken and approach of the Gujarat High Court in Pankaj D Suthar (supra) and Dr.NTDesai (supra) and clarify the judgments of this Court in Balothia (supra) and Manju Devi (supra);”

A  Three  judge  bench  of  the  Apex  Court  in Prathvi Raj Chauhan vs. Union of India[ (2020) 4 SCC 727], observed that if a prima facie case has not been made out attracting the provisions of SC/ST Act, the bar created by Section 18 on anticipatory bail is not attracted. The Apex Court reiterated the said principle in Haji Iqbal v State of UP and Others [AIR 2023 SC 3964]. The Apex Court also explained how the prosecution case has to be approached when there is an allegation that the complaint was instituted with the ulterior motive of wreaking vengeance. It was held that if there is an allegation that the prosecution was launched with the ulterior motive of wreaking vengeance and proves manifestly frivolous or vexatious, the court owes a duty to look into the FIR with care and a little more closely. It was also observed that once the complainant decides to proceed against the accused with an ulterior motive, for wreaking personal vengeance, etc, then he would ensure that the complaint is very well drafted with all necessary pleadings.

Keeping the above in mind, the complaint in this case and the attending circumstances are to be considered. From the materials on record, it is evident that the 3rd respondent and members of his family occupy the quarters in the estate without any authority. The estate management even filed a suit for excluding them from the quarters. In the FI statement itself, it is stated that he initially did not pursue his complaint. The investigation conducted initially culminated in a finding that the complaint was false. Indisputably, the 1st appellant was the manager and other appellants were the members of the staff in the estate. It is submitted that appellants 2 to 4 already left the service in the estate. It indicates that the appellants did not have any personal interest in the matter of evicting the 3rd respondent from the quarters. Therefore it is not possible to find that the appellants committed the alleged acts of offence intending to cause any harm or hurt to the 3rd respondent or the members of his family. From the wound certificates available in the case diary, it is seen that there was no serious injury to any person. Conspicuously, there is no mention of assault by any of the appellants in the would certificate also. In such circumstances, I am of the view that it is not possible to find prima facie that the appellants have committed offences under the SC/ST Act as alleged, which follows that bar under Section 18 of the SC/ST Act does not apply to this case.

Considering the nature of the offence, custodial interrogation of the appellants is not required. Therefore the appellant can be granted anticipatory bail. Accordingly, this appeal is allowed. The impugned order is set aside. The appellants are directed to surrender before the investigating officer within two weeks. After interrogation and in the event of them being arrested, they shall be released on bail on the execution of bonds for Rs.50,000/- (Rupees fifty thousand only), with two solvent sureties for the like amount each, to the  satisfaction  of  the  investigating  officer,  and  on  the following conditions:

(i) They shall not influence or intimidate the defacto complainant or witnesses or tamper with evidence;

(ii) They shall appear before the investigating officer as and when called for; and

(iii) During the bail period, they shall not get involved in any offence.

In case of breach of the bail conditions, the prosecution shall be at liberty to apply for cancellation of the bail before the jurisdictional court. It is made clear that the observations made above are to decide the bail application only.