Renjini vs State Of Kerala

A. Badharudeen, J

This appeal arises out of dismissal of Crl.M.C No. 2096/2022 dated 14.10.2022 on the file of Special Court, Thodupuzha for Trial of Cases under Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, (herein after referred as SC/ST (POA) Act, for convenience).

Though notice was issued to the defacto complainant through the Station House Officer, the defacto complainant did not turn up.

Heard the learned counsel for the appellant, the counsel for the defacto complainant as well as the learned Public Prosecutor.

The prosecution case is that on 23.09.2022 at about 2.30 pm, the 1st accused caught hold of the defacto complainant, who belongs to Scheduled Caste community, and brutally manhandled with intention to do away him. The allegation against the 2nd accused/appellant is that she also beat the defacto complainant using a stick. The further allegation is that the defacto complainant is a member of Scheduled Caste community whereas the accused are members of Ezhava community. On the above premise, prosecution alleges commission of offences punishable under Sections 324, 308 and 506(ii) read with 34 of the Indian Penal Code as well as under Section 3(2)(va) of the SC/ST (POA) Act.

Learned counsel for the petitioner argued that the entire case is false. According to him the defacto complainant in this case is the accused in crime No. 369/2019 of Varkala Police Station where he alleged to have committed offences under Sections 366 and 376 of Indian Penal Code as well as 5(1) read with 6 and 9(1) read with 10 of the POCSO Act. It is submitted that since the defacto complainant is in enimical terms with the accused this case was poised so as to keep the relationship of the defacto complainant with the daughter of the accused alive with ulterior motives, which the family dislike.

The learned Public Prosecutor would submit that the defacto complainant reached the residence of the accused as invited by her daughter and thereafter he was manhandled by the accused. In this matter, the 1st accused was arrested and his bail application was dismissed by the Special Court. In Crl.A.1037/2022, this Court granted bail to the 1st accused as per the order dated 25.10.2022.

In this matter the question is whether a prima facie case is made out. Going by the recitals in the Wound Certificate, it could be noticed that, there is no allegation against the 2nd accused and the history and alleged cause of injury is sated as assault by 'one person'.

No doubt, in order to grant anticipatory bail in a case involving offence under SC/ST (POA) Act, there is specific bar under Section 18 and 18A of the Act. The said bar has no application in a case where there is no prima facie case.

Even after amendment and incorporation of Section 18A, a three bench of the Apex Court considered the impact of Section 18 and 18-A Prathvi Raj Chauhan v. Union of India (UOI) and Others  [2020 (2) KHC 423 : AIR 2020 SC 1036 : (2020) 4 SCC 727 : MANU/SC/0157/2020] 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. Therefore, the law is no more res integra on the point, when the prosecution allegation make a prima facie, anticipatory bail cannot be granted.

In this matter, in the FIS, the caste of the defacto complainant is shown as a member of Scheduled Caste community and the caste of the accused is shown as Ezhava community. Allegation of assault by the 2nd accused stated in the FIS could not found a place in the Wound Certificate. Therefore prima facie case against the 2nd accused is doubtful, particularly when the allegations are at the instance of the defacto complainant, who is an accused in the POCSO Act case, where the 16 years old victim is the daughter of the 2nd accused.

In view of the matter, the order impugned stands set aside. Accordingly the appeal stands allowed and the appellant shall be released on bail on the following conditions:

i. The appellant/2nd accused shall surrender before the Investigating Officer, within ten days from today.

ii. On her surrender, the Investigating Officer can question the appellant/2nd accused and if she will be arrested, she shall be produced before the Special Court, on the same day.

iii. On production before the Special Court, the Special Court Judge shall release the appellant/ 2nd accused on bail on her executing bond for Rs.50,000/- (Rupees Fifty Thousand Only) with two solvent sureties, each for the like amount to the satisfaction of the Special Court concerned.

vi. The appellant/2nd accused shall not intimidate witnesses or tamper the evidence. She shall co- operate with the investigation and shall be available for interrogation as and when directed by the Investigating Officer.

v. The appellant/ 2nd accused shall not involve in any other offence during the currency of bail and any such event, if reported or came to the notice of this court, the same shall be a reason to cancel the bail hereby granted.