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Prakash A vs State Of Kerala on 6 March, 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

WEDNESDAY,THE 06TH DAY OF MARCH 2019 / 15TH PHALGUNA,
1940

CRL.A.No. 354 of 2019

AGAINST THE ORDER/JUDGMENT IN CRMP 824/2019 of SESSIONS
COURT ,KASARAGOD

CRIME NO. 53/2019 OF Kumbla Police Station , Kasargod

APPELLANT/ACCUSED:

PRAKASH A.
AGED 29 YEARS
S/O. AITHAPPA POOJARI, KAKKALAM HOUSE,
ARIKADYKUNNIL, BAMBRANA VILLAGE AND POST,
MANJESHWAR TALUK, KASARAGOD DISTRICT.

BY ADV. SRI.R.KRISHNAKUMAR (CHERTHALA)

RESPONDENT/STATE:
STATE OF KERALA
REPRESENTED BY SUB INSPECTOR OF POLICE,
KUMBALA POLICE STATION, KUMBALA, KASARAGOD,
REP.BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM-682031.

OTHER PRESENT:
SRI.AMJAD ALI,PUBLIC PROSECUTOR

THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
06.03.2019, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
CRL.A.No. 354 of 2019

2

ALEXANDER THOMAS, J.
———————–
Crl. Appeal No. 354 of 2019
———————–
Dated this the 6th day of March, 2019

ORDER

The petitioner is the sole accused in crime No.53/2019 of Kumbala

Police Station registered for offences punishable under Sections 354 IPC

and Section 3(1) (w)(i) of Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, 2003.

2. The brief of the prosecution case based on the F.I. Statement of

the lady defacto complainant is that the petitioner had outraged the

modesty of the said defacto complainant who is a member of the Moger

community, (scheduled caste) on 8.01.2019 and 09.01.2019 at her

workplace at Akshaya centre, Bambrana. Petitioner was deputed to

Akshaya centre from the village office. The petitioner had held her by his

hand and that she had wriggled out by throwing the pen and paper. The

petitioner had threatened that he will complain against her subordination

etc.

3. The petitioner had earlier approached this court seeking

anticipatory bail by filing B.A.No.1065/2019, which this court had disposed

of on 20.02.2019 by holding that ordinarily an application of pre arrest bail

for offence under the SC/ST (POA) Act may not be maintainable under
CRL.A.No. 354 of 2019

3

Section 438 of the Code and that the petitioner will have to approach the

special court for consideration of regular bail and if it is otherwise any such

decision of the special court is amenable for an appeal under Section 14 A

of the said Act.

4. Later, the petitioner had surrendered before the Sessions Court

and had submitted Crl.M.P. 824/2019 for grant of regular bail which has

been refused by the impugned order 28.02.2019 and the petitioner has now

been remanded since 20.2.2019. Challenging this order, the petitioner has

filed this Crl. Appeal under Section 14A (2) of the SC/ST (POA) Act 1989

Central Act 33 of 1989.

5. Heard Sri. R.Krishnakumar, learned counsel appearing for the

petitioner and Sri. Amjath Ali, learned Public Prosecutor appearing for the

respondent -State.

6. The main ground urged by the learned counsel

Sri. R. Krishnakuamr appearing for the petitioner – accused is that, even

going by the case projected by the defacto complainant, petitioner was not

an employee of the Akshaya Centre, whereas, he is working as a part-time

employee of the Revenue department and he is regularly working in the

village office and that he was deputed to Akshaya Centre for doing some

work where the defacto complainant lady is regularly working and that the

defacto complainant has no case whatsoever in the F.I.S given by her or
CRL.A.No. 354 of 2019

4

otherwise that the petitioner was aware of the fact that the defacto

complainant was a member of SC/ST community. Therefore there is no

question of imputing her status. Hence it is pointed that the endeavor of

the prosecution to make out an offence under Section 3(1)(w) (i) of the

SC/ST (POA) Act is not justified and tenable. It is further pointed out that

it is held by the Apex Court in its decision in Vilas Pandurang Pawar and

Another v. State of Maharashtra [AIR 2012 SC 3316] that duty is cast on

the court to verify the averments in the complaint and find out whether

offence under the Act has been prima facie made out. Further that it has

been held by the Apex Court in Dr. Subhash Kasinath Mahajan v. State of

Maharashtra and Anr. [2018 (2) KHC 207] SC (2018) 6 SCC 454, that

there is no absolute bar against grant of anticipatory bail in cases under the

Atrocities Act, if no prima facie case is made our or where on judicial

scrutiny the complaint is found to be prima facie malafide.

7. The learned counsel for the petitioner had handed over a copy

of the FIR and FIS in the above said crime for perusal of this court and

copy of which was also given to the learned Public Prosecutor for perusal.

8. It is seen that no such imputation or suggestion is seen made

regarding such knowledge, regarding the caste, of the petitioner/accused.

9. Having regard to the facts and circumstances of the case, more

particularly, on the basis of the above said aspects urged by the petitioner,
CRL.A.No. 354 of 2019

5

this court is of the considered view that the learned Sessions Court has

erred in not considering the crucial aspects involved in the matter.

Accordingly, this court is inclined to consider the plea for regular bail.

Accordingly it is ordered that the Crl. Appeal is allowed and the impugned

order dated 28.02.2019 rendered by the Sessions Court in

Crl.M.P.No.824/2019 arising out of Crime No.53/2019 will stand set aside

on the following directions:

(i) The petitioner will stand released on bail on his executing bond

for a sum of Rs.50,000/- (Rupees fifty thousand only) with two

sureties for the like sum each to the satisfaction of the

jurisdictional Court.

(ii) He shall appear before the Investigating officer on all

Saturdays between 10.00 a.m. And 1.00 p.m. for a period of

three months or till final report is filed, whichever is earlier.

(iii) In case the final report is not filed within a period of three

moths, then the petitioner shall appear before the

investigating officer on every 2nd Saturday and 4th Saturday

during any time between 10 a.m and 1 p.m . for a further

period of four months therefrom or until final report is filed,

whichever is earlier.

(iv) Petitioner shall not intimidate or attempt to influence the
CRL.A.No. 354 of 2019

6

defacto complainant, witnesses or shall he tamper the

evidence.

(v) Petitioner shall not commit any similar offence while on bail.

(vi) Petitioner shall not visit the workplace or residence of the lady

defacto complainant.

In case of any violation of any of the conditions, the jurisdictional

court shall empower to consider the application for cancellation of bail, if

any and pass appropriate orders in accordance with law.

With the above directions, the impugned order will stand set aside

and the Crl. Appeal is finally disposed of .

Sd/-

ALEXANDER THOMAS

Shg JUDGE

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