Sunil 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 challenge in this appeal is to the order dated 09.08.2024 in Crl.M.P No.2470/2024 passed by the Sessions Court, Kottayam.

The appellant is the sole accused in Crime No.874/2024 of Kottayam East Police Station. He is alleged to have committed the offences punishable under Sections 294(b) and 323 of IPC and Sections 3(1)(r), 3(1)(s) and 3(2)(va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'the Act').

The prosecution case as discernible from the impugned order is as follows:

“The prosecution allegation is that, the petitioner, with his intention to insult the defacto complainant, who is a member of the Scheduled Caste Community, used to hurl abuses against him and call his caste name in front of public. That the petitioner and the defacto complainant are autorickshaw drivers at Nagambadam Autostand. On 14.06.2024 at about 02.30 p.m., at Nagambadam Autostand, the petitioner hurled abuses against the defacto complainant and slapped on his left cheek and chest and thereby committed the above said offences.”

Notice was served on the victim. He did not turn up.

I have heard the learned counsel appearing for the appellant and the learned Public Prosecutor.

The learned counsel for the appellant submitted that the appellant has been falsely implicated in this crime as a retaliation to the complaint lodged by him against the victim on 15.06.2024 alleging that he used to engage in anti-social activities including consuming alcohol along with his friends in public place. In the said complaint, the appellant had also alleged that the victim, an auto driver, has the habit of obtaining exorbitant charges from the travellers.

The learned counsel relied on Anx.A4 complaint dated 15.06.2024 and the delay in lodging the FIS in support of his contentions.

Annexure A4 is a complaint dated 15.06.2024 stated to have been filed by the appellant before the Sub Inspector of Police, East Police Station, Kottayam. In Annexure A4, the appellant had stated the allegations as referred to above. The date of incident in the present crime was 14.06.2024, whereas the victim filed the complaint only on 06.07.2024.

The case diary has been made available. I have gone through the first information statement and the related documents.

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)}.

Annexure A4 complaint filed by the appellant reveals that the appellant and the victim has been living in inimical terms.

On evaluation of the entire material, this Court is of the view that the possibility of false implication cannot be ruled out. Those circumstances are sufficient reasons to doubt a prima facie case to attract the offences under the Act.

I am of the considered view that the bar under Section 18 of the Act is not applicable to the facts of the case. The offences alleged under the Indian Penal Code are bailable.

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 influencing the course of investigation, or tampering with evidence (including intimidating witnesses), likelihood of fleeing justice (such as leaving the country), etc.

Having considered the entire circumstances on the touchstone of the precedents mentioned above, I am of the view that the appellant is entitled to anticipatory bail on conditions. In the result,

(i) The Criminal Appeal is allowed.

(ii) The order dated 09.08.2024 dismissing Crl.M.P No.2470 of 2024 stands set aside.

(iii) The appellant shall appear before the Investigating Officer on 14.10.2024 between 10.00 AM and 11.00 AM for interrogation.

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

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