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
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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
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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
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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
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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